At some point in their career, many litigators will find themselves named as a defendant in a lawsuit filed by their opponent’s client, alleging that his or her litigation loss was a result of the litigator’s conspiracy with their client, the judge, the jury, and many other potential defendants. The time and cost of proving that such lawsuits have no merit can be substantial. In his article “Your Opponent Has Just Sued You: Your Options Vary Widely Depending on the State Where the Litigation Is Filed,” published in U.S. Law Week and and ABA/BNA Lawyers’ Manual on Professional Conduct, Senior Counsel David Richardson outlines several options for obtaining prompt dismissals of these types of lawsuits.
In states with a vexatious litigant statute, a defendant can file a motion that challenges the nature of the litigant as an initial response to the complaint, and toll the time to answer. However, only five states have vexatious litigant statutes – California, Florida, Texas, Ohio and Hawaii.
Other states lack a statutory framework for dealing with vexatious litigants, but some recognize the concept under common law, and often apply similar remedies. However, the lack of a statutory framework means that such rulings arise from proceedings within the vexatious litigation, such as motions for sanctions or attorney’s fees, rather than from a pre-answer motion that might end the litigation at the outset.
Obtaining the dismissal of meritless litigation against attorneys can be expensive in any state. However, the procedures available in California and other states that have followed California’s lead can significantly reduce the expense involved and the time required to obtain a dismissal of litigation and an order against future filings.