The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Litigation Torts


I'm planning on teaching a 1-unit course on litigation torts—basically, torts that stem from the filing of a lawsuit, the conduct of a lawsuit, conduct in anticipation of a lawsuit, or sometimes conduct closely related to a lawsuit (such as distributing press releases about a lawsuit). The goal would be to teach students what they and their clients need to avoid when litigating, and what behavior by the other side might be actionable.

So far, I plan to cover:

  1. malicious prosecution (generally as to civil proceedings, though I'd also mention malicious prosecution claims related to seeking criminal charges),
  2. abuse of process,
  3. spoliation of evidence,
  4. retaliatory litigation (chiefly actionable under antidiscrimination statutes),
  5. extortion through threat of embarrassing litigation (generally civil extortion, though I'd also mention criminal extortion),
  6. interference with business relations through, for instance, sending cease-and-desist letters to an adversary's customers claiming that their use of the adversary's product violates intellectual property law (which is often ancillary to the lawsuit against the adversary, and which may help put pressure on the adversary),
  7. libel or invasion privacy in filings, pre-suit communications, and related press releases, plus the litigation privilege and the fair report privilege as defenses to such claims,
  8. the First Amendment Noerr-Pennington doctrine as a defense to claims that various lawsuits violate antitrust law, labor law, and the like, and
  9. anti-SLAPP statutes, which are a special case of fee-shifting statutes and in effect make plaintiffs liable for filing certain kinds of losing lawsuits (even if they aren't frivolous lawsuits).

I realize that these claims are conceptually different in various ways, but they are all potential pitfalls that can arise in litigation. Are there other topics any of you would recommend? Particular twists on these topics that you've come across that would be worth teaching? Particular cases that are especially illustrative? Much looking forward to hearing suggestions.