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.

Comments

[SKofNJ]

I think you should include the topic of sanctions for filing frivolous litigation. Also, although maybe this is a bit far afield, ethics rules with regard to what attorneys can to the public about pending litigation.

[SKofNJ]

Oops. I meant what attorneys can say to the public about pending litigation.

[DaivdBehar]

Rule 3.1 is never ever enforced. Only a judge filing it has the slightest chance of a serious review. I would like to hear the statistic on the number of such complaints files, and the number of any action.

[N/A]

Agreed on sanctions, particularly under the courts' inherent authority for bad faith conduct. Those sanctions can be used to address some of the conduct also addressed by a few of the torts on your list. For example, filing frivolous counterclaims intended to harass or delay proceedings is essentially an abuse of process. Under the right circumstances, courts can assess attorney's fees against the bad-faith actor to address the misconduct.

[bdb484]

We had a prosecutor threatening us with obstruction charges for trying to have him removed from office while he prosecuting our client. Maybe a basis for a First Amendment retaliation case, but I doubt it happens often enough to merit its own lecture.

[DaivdBehar]

What are the remedies within the trial? Most of the above actions are likely to fail. The judge of the case has great power.

Example. Expert has an error in his resume. Expert says he reviewed something, but did not. Those are instances of perjury subject to criminal penalties by the judge of the trial.

Judge may issue summary judgments. The judge may dismiss the case with costs to the plaintiff.

One problem is the lack, not of zealous representation, but of adequate representation. The problem is that the client is fungible for the defense lawyer. If fired by one, one can find another in an hour. If the other side is deterred, one will lose the job. The defense bar owes its living to the plaintiff bar. The judge owes his job to the plaintiff bar. No lawyer wants to deter a plaintiff lawyer.

[NToJ]

In our jurisdiction we have ethical rules that prevent threatening to report a criminal violation in order to secure leverage in a civil matter. Might be worth mentioning.

Our jurisdiction also has an expedited declaratory judgment act that is intended to allow government subdivisions to file original petitions (giving record notice through newspapers) concerning the validity of public bond projects, to secure an order prohibiting members of the public from challenging the legal basis for the bond later. Although sometimes parties use them to try and secure orders that go beyond the specific bond issue. In any event, one of the remedies for securing an EDJA order is "a permanent injunction against the filing by any person of any proceeding contesting the validity of" the public security (bond). Might tie into your Noerr-Pennington section.

If you need an example of an accidentally overbroad anti-SLAPP provision, this jurisdiction has one, and it fits rather nicely into your Section 9. Lots of caselaw on it. Just reply if you want to know the statute.

[Jimmy the Dane]

I see spoliation from my vantage point happen more frequently than you would think.

Word of warning - train your front line employees at satellite locations that might receive process what a discovery hold looks like and why it just can't be thrown in the trash.

[Mark Leen]

More in the realm of remedies, but might be good to teach about the power of courts to crack down on vexatious litigants, including by requiring lawsuits be filed and approved for service prior to serving defendants.

[jdgalt1]

How about the misuse of an announced decision not to prosecute, as in the recently overturned conviction of Bill Cosby?

[Eugene Volokh]

jdgalt1: It's an interesting topic, but it has more to do with criminal procedure, I think, than with torts (or criminal liability) arising out of the conduct of civil litigation.

[orin ed deniro]

Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges
(Rule Approved by the Supreme Court, Effective November 1, 2018)
(a) A lawyer shall not threaten to present criminal, administrative, or disciplinary
charges to obtain an advantage in a civil dispute.
(b) As used in paragraph (a) of this rule, the term “administrative charges” means the
filing or lodging of a complaint with any governmental organization that may order
or recommend the loss or suspension of a license, or may impose or recommend
the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal
nature but does not include filing charges with an administrative entity required by
law as a condition precedent to maintaining a civil action.
(c) As used in this rule, the term “civil dispute” means a controversy or potential
controversy over the rights and duties of two or more persons* under civil law,
whether or not an action has been commenced, and includes an administrative
proceeding of a quasi-civil nature pending before a federal, state, or local
governmental entity.

[phoqueue]

Torts other than malpractice?

[Woodmere Lawyer]

How about when parties use or threaten the use of arbitration in addition to filing an action in court? Of course once a party chooses arbitration they cannot then go to court. The opposite is true as well. Many parties play these games.

[N/A]

Depending on the circumstances, this is addressed by "litigation-conduct waiver" (or at least that's what we call it in CA5). See generally Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 999 F.3d 257 (5th Cir. 2021). It's not really aimed at addressing litigant misconduct, although it can easily be used that way. Parties can waive their right to arbitrate by litigating too far in court before invoking a valid arbitration clause. Sometimes that happens without misconduct.

That said, it's not hard to imagine a party that loses some initial rounds of motion practice and isn't feeling the court's vibe, so they try to jump ship to arbitration. See Tellez v. Madrigal, 292 F. Supp. 3d 749, 752 (W.D. Tex. 2017) (party who invoked arbitration clause after losing 12(b)(2) motion, 12(b)(6) motion, and forum non conveniens motion waived right to arbitrate). That's more on the misconduct end of the spectrum I suppose.

[jagcowan]

In case you haven't already seen it, about a month ago the Supreme Court of Texas ruled that the judicial proceedings privilege doesn't apply to press releases about a lawsuit, so a lawyer who puts defamatory statements in the pleadings and then sends them to the press isn't immune from liability in a defamation suit. It's Landry's, Inc. v. Animal Legal Defense fund, No. 19-0036 (Tex. May 21, 2021). https://www.txcourts.gov/media/1452225/190036.pdf.

In an earlier case, a federal district court applying Texas law had ruled that sending papers to the press was privileged. It was one of the opinions out of the Northern District of Texas in Charalambopoulos v. Grammer, No. 3:2014cv02424. The Grammer in that case was Camille Grammer, Kelsey Grammer's ex-wife and a Real Housewife of Beverly Hills, which I guess might make it interesting for a class.

[jagcowan]

I forgot to mention that both of those cases involved Texas's anti-SLAPP statute, the Texas Citizens Participation Act, so two birds.

[phoqueue]

My sense from doing a 50-state survey over a decade ago was that the tort of extortion was rejected in most states that had considered it -- e.g., Blaz v. Molin Concrete Prod. Co., 309 Minn. 382, 383 n.1, 244 N.W.2d 277, 278 (1976) (“[w]e are unaware of any civil tort so denominated”). IIRC, California allowed it in some limited sense.

Have things changed since then?

[Formerly Known as Stash]

I researched the same issue in 2019. I didn't do a full survey, but I extended my search to all jurisdictions. Except for some statutory actions for "intimidation" (which is what many states call extortion in their criminal codes) mostly having to do with race and gender discrimination, I found the same. Most cases were ones you would have found but there are a few slightly younger than a decade. See, e.g., Roger Whitmore's Automotive Services, Inc. v. Lake County, 2002 WL 959587, *10, No. 99-C-2504(N.D. Ill. May. 8,2002)(intimidation and extortion, while crimes, are not torts, so cannot support a common law conspiracy claim).

Extortion is not a cause of action one could find in Blackstone. Common law extortion was a common law crime that could only be committed by public officials See, e.g., Evans v. U.S., 504 U.S. 256, 269-270. (1992). Criminal codes broadened the definition, but common law courts have no tort in the common law to start from or adapt. Also, it seems to me that either one succumbs to the extortion or one does not. In the latter case there are no damages (unless the threat is carried out and is otherwise tortious), and in the former one has a remedy to recover the payment on the grounds of coercion/duress (i.e., one can rescind the "contract" or obtain damages for the compelled act). See, e.g., Reiter v. Illinois Nat. Cas. Co., 328 Ill.App. 234, 261-262 (Ill App 1946) (stock sold under threat of criminal prosecution) rev’d on other grounds, Reiter v. Illinois Nat. Cas. Co 397 Ill. 141 (Ill. 1947). And, in the case of cash, might even qualify for "money had and received" since duress negates the voluntary payment doctrine.

Seems to me that extortion, if sufficiently outrageous, may qualify as intentional infliction of emotional distress. Of course one can recover civilly for extortion if it is a predicate act in a civil RICO suit, but I agree that "extortion" is not a tort, per se.

[Andy Rozell]

Fair Debt Collection Practices Act. Threatening litigation you don’t intend to file, threatening to sue on time-barred debt, etc.

[John F. Carr]

When Massachusetts' anti-SLAPP law was much younger I saw a case implying it effectively barred actions for malicious prosecution and abuse of process. A lawsuit over a lawsuit was a SLAPP because lawsuits are protected petitioning activity. This may not have been a precedential case, or it may have been narrowed by later decisions.

[DaivdBehar]

Of course, this whole subject is a waste of time. The correct remedy is to hunt the plaintiff lawyer, beat its ass, and drive it out of the state. If the criminal law is in failure, tort law is a scam, that actually delays safety by inducing a cover up. More people may die as a result of tort litigation than are murdered from the failed criminal law each year.

The real remedy is to crush this toxic profession. Crush their judges, their legislators, their practitioners.

[ah....Clem]

I live in Michigan and there's an arbitration requirement for any (most? - might be exceptions) civil litigation. First it goes to an arbitration panel who hear a quick presentation from both sides and propose a settlement. If the plaintiff doesn't accept the panel's settlement and it goes to trial, they have to obtain a verdict that beats the arbitration panel's proposal by 10%. If they fail in that, even if they "win" they get nothing and have to pay the defendant's attorney fees.

Not sure how many other states have a similar process (Ohio doesn't, I think) but might be worth a mention.

[LawTalkingGuy]

For spoliation, I would discuss how narrow the tort can be and how the true remedy for things that might be characterized as "spoliation" are actually contained in the rules governing discovery sanctions.

For instance, the Ohio Supreme Court emphasized that intentional interference or concealment does not support a spoliation claim.

https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-1783.pdf

[blackoasis]

Slander of title (or statutory analogues) in connection with recording a lis pendens.