The Oversuer – Some (Difficult) Ways the Law Deals with Abuse of the System

Americans tend to file lawsuits fairly frequently, and some more than others. Occasionally, the courts will face someone with a tendency to sue repeatedly, or with grossly insufficient grounds, or in order to harass a defendant or leverage an unrelated concession. There are ways these actions can be prevented, but none of them are easy to implement. The law generally encourages access to the courts, and as a result only takes action against severe abuse.

The first way of dealing with an improper suit is a potential suit for wrongfully suing the defendant. This approach has been recognized in the law for a very long time, but only applies in a very narrow set of circumstances. First, the original case has to end favorably for the defendant. Second, the person to be sued by the defendant has to have had a hand in beginning the first suit. (If the original plaintiff is the target, which usually isn’t hard to prove.) Third, the defendant has to show that plaintiff in the first suit did not believe, and didn’t have good grounds to believe, that the claim might, under some argument, succeed. That’s the hard part. For example, the Oregon Supreme Court has ruled that if the plaintiff in the first case had been advised by a lawyer that the claim had merit, that’s usually enough to defeat the “no grounds” question. On the other hand, if someone doesn’t check his or her own records before making an accusation is at risk; a typical Oregon case under a related concept, maliciously obtaining a criminal prosecution, involved an employer who accused an employee of stealing from stock when the employee had bought the item in question. Finally, some states, including Oregon, also require proof that the original suit was for an improper purpose.

The defendant from the first case also has to show that he or she was damaged. The cost of defending the first case counts, but unless it was particularly expensive, most lawyers won’t take on the new case without more, such as serious emotional harm or damage to reputation.

I have been involved in one successful suit on these grounds in my career. In that case, shortly before an election, a candidate for public office sent a complaint to the Oregon state agency charged with overseeing government ethics, accusing the incumbent of mishandling a fund associated with the office. The firm I was with at the time represented the incumbent, who demonstrated that the complaint was without evidence and probably was intended to influence the election. (It didn’t.)

Oregon also has a law allowing for attorney fees to be charged as a sanction for filing a lawsuit (or asserting a defense, or appealing a ruling) without an “objectively reasonable basis.” That means that the evidence provided in support of the claim is almost completely insufficient. The courts don’t award this very often, and some judges may confuse it with an older version of the same law, which implied an intent to harass might be required. (That is no longer part of the law, but I’ve seen lawyers get confused about it.)

The second approach is a suit for filing an abusive lawsuit, which is when the suit is filed as a means of extorting a concession with an ulterior motive. That also is hard to prove. For example, when a shipbuilder claimed a lien on a fishing boat it had worked on, and then seized the boat to pay its bill, that was ruled acceptable even though a lender also had a lien on the boat and the seizure could be seen as a means of getting the shipbuilder paid first. In Oregon, there also has to be an actual seizure of property before this claim will hold up.

If a suit is intended to coerce the defendant to shut up about a matter of public concern, it is possible in many states, including Oregon and Washington, to get the suit dismissed quickly under a SLAPP law, but if the plaintiff can show grounds for moving forward, the court might not dismiss it. I have discussed this in a previous post. <https://danielreitman.wordpress.com/2013/11/25/what-does-it-take-to-stop-slappers/&gt;

The fourth of the major means of dealing with an oversuer is having him or her declared a “vexatious” litigant. This usually requires proof that the oversuer has filed numerous suits in bad faith, often with many time-consuming filings. A recent case from Montana involved a blogger from Georgia who had a history of filing suits in courts “all over the country,” stalked his defendants (including traveling from Georgia to Montana to video-record the defendant in the case in question), and creating harassing web sites in the names of the opposing parties. The overuer, who had also been declared vexatious by a federal court in Georgia, was prohibited from filing new suits in Montana without prior court permission, a typical sanction for a vexatious litigant.

Although Washington law recognizes the concept of the vexatious litigant, Oregon does not. It is possible that in the right case, the Oregon courts might adopt the concept as part of their general power to control conduct in the courts.  I think it is more likely they would wait for the legislature to act. (A bill was presented in 2013. It died in committee.)

If you are facing an unusually difficult opponent, you may want to talk to your lawyer about whether some means of dealing with an oversuer might be tried. Because none of these approaches are easy to win at, you probably should collect all of your evidence and be ready to present it to your lawyer in an organized fashion. That way, your lawyer will be able to give an opinion with some degree of confidence. Just don’t be surprised if the lawyer says you don’t have enough evidence yet, or if the lawyer identifies an additional point you need more proof of.

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One Response to The Oversuer – Some (Difficult) Ways the Law Deals with Abuse of the System

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