Is this why people make all those lawyer jokes?
February 5, 2010 9:47 AM Subscribe
Legal Curiosity Filter: I have a legal question, but I don't need legal advice. I have a friend who is being sued. She is clearly innocent and the allegations against her is a lie. Her lawsuit is actually kind of a joke in our circle of friends because what is alleged is so blatantly false and easily disproved. And yet the lawsuit has been going on for two years now! How long can a lawsuit be dragged out in court when the accusing party is clearly dragging their feet and trying to force some kind of settlement?
The accusing party has an attorney and he has expressed on multiple occasions that all his client wants is a settlement. My friend doesn't want to settle because the allegations are blatantly false and easily disproved in court. Additionally, my friend doesn't have any attorney fees because she's being represented by a family member who isn't charging her. So she has very little motivation to settle. She's more than happy to just wait the whole process out.
Since the original complaint was filed, the accusing parties attorney has done nothing. Every couple of months there is a case management session buy their attorney only comes to half of those. Numerous sanctions have been levied against the attorney and the plaintiff but they haven't paid them.
My friend is lucky, she doesn't have to pay any attorney fees and in the end it seems like she doesn't perceive this as anything more than a mild inconvenience. But if it was me, I would be freaking out. I would have to pay an attorney. So if everything my friend has told me is true, how long can a lawsuit be dragged out in court when the accusing party is clearly dragging their feet? Can the judge just throw the whole thing out? Is there some kind of legal mechanism to protect people from frivolous lawsuits like this?
If it helps, all of this is going on in California. And to reiterate, I do not need a lawyer. This is not for me. I'm just baffled that all of this could go on for two years.
The accusing party has an attorney and he has expressed on multiple occasions that all his client wants is a settlement. My friend doesn't want to settle because the allegations are blatantly false and easily disproved in court. Additionally, my friend doesn't have any attorney fees because she's being represented by a family member who isn't charging her. So she has very little motivation to settle. She's more than happy to just wait the whole process out.
Since the original complaint was filed, the accusing parties attorney has done nothing. Every couple of months there is a case management session buy their attorney only comes to half of those. Numerous sanctions have been levied against the attorney and the plaintiff but they haven't paid them.
My friend is lucky, she doesn't have to pay any attorney fees and in the end it seems like she doesn't perceive this as anything more than a mild inconvenience. But if it was me, I would be freaking out. I would have to pay an attorney. So if everything my friend has told me is true, how long can a lawsuit be dragged out in court when the accusing party is clearly dragging their feet? Can the judge just throw the whole thing out? Is there some kind of legal mechanism to protect people from frivolous lawsuits like this?
If it helps, all of this is going on in California. And to reiterate, I do not need a lawyer. This is not for me. I'm just baffled that all of this could go on for two years.
Typically the parties have to prove pretty early in the case that they have the legal basis for a lawsuit - i.e. that they can allege facts that if proven would be sufficient to show a violation of law. If a defendant believes a lawsuit against them is unfounded, they can file for a dismissal and if it truly is frivolous can receive it. Now, that doesn't go to the veracity of the facts themselves, and certainly I have seen lawsuits that I feel should have been dismissed result in a large settlement, but...
Anytime I hear that the outcome of something is "clearly" one way or another, I am suspicious. There are two sides to pretty much every story, and most people don't have an accurate view of their legal rights and responsibilities.
posted by bunnycup at 10:03 AM on February 5, 2010 [1 favorite]
Anytime I hear that the outcome of something is "clearly" one way or another, I am suspicious. There are two sides to pretty much every story, and most people don't have an accurate view of their legal rights and responsibilities.
posted by bunnycup at 10:03 AM on February 5, 2010 [1 favorite]
Let's see, there are a handful of questions here.
There is a mechanism to protect people from frivolous lawsuits. The legal system needs to strike a balance between giving everyone an opportunity to be heard in court and disincentivize frivolous claims. Most states, including California I believe, allow the defendants in frivolous suits to file malicious prosecution claims against the plaintiffs and recover something. What that "something" amounts to depends.
Additionally, an attorney has an ethical obligation to have a "good faith" basis for bringing a claim. This is described a number of different ways, but basically the lawyer doesn't need to know that she's going to win, she just needs to be able to march out an argument that the law may fit her claim in a way that will allow her to prevail. If there's no possible way she can win, she may be subject to professional sanctions, up to and including disbarrment if things get very bad.
Frivolous lawsuits are most often "thrown out" for a failure to state a claim. This can be done by the court on its own ("sua sponte"), or because the defending party filed a motion to dismiss for a failure to state a claim. For this to happen, there can be no way that the law allows for the plaintiff to prevail, based on the pleadings filed. The court can't look to other evidence.
Another pretrial tool is a summary judgement motion. Basically, for a claim to be dismissed at the summary judgement stage, the parties need to agree as to what the important (material) facts are. Then, as the theory goes, the judge can look at the facts, look at the law, and decide how the law applies to the facts. While that may sound like what juries do, juries are just "fact finders," and don't actually deal with the law in the way most people think that they do. In our system, it's the judges who decide what the law is, the jury who decides what the facts are (i.e. did the defendant actually stab the victim?).
Finally, as to your main question, how long can this drag on, the answer is "it depends." It depends on how full the court's docket is, how the parties work together, how active the judge is in getting the parties to work together, and statutory guidelines. Criminal cases almost always go faster than civil cases, because as a criminal defendant you're entitled to a "speedy trial" under the constitution, which, IIRC, runs at 6 months if you do nothing to extend it. Civil cases don't have the same constitutional requirement.
On preview, a bit of this is repetitive; took me a while to type.
posted by craven_morhead at 10:05 AM on February 5, 2010 [1 favorite]
There is a mechanism to protect people from frivolous lawsuits. The legal system needs to strike a balance between giving everyone an opportunity to be heard in court and disincentivize frivolous claims. Most states, including California I believe, allow the defendants in frivolous suits to file malicious prosecution claims against the plaintiffs and recover something. What that "something" amounts to depends.
Additionally, an attorney has an ethical obligation to have a "good faith" basis for bringing a claim. This is described a number of different ways, but basically the lawyer doesn't need to know that she's going to win, she just needs to be able to march out an argument that the law may fit her claim in a way that will allow her to prevail. If there's no possible way she can win, she may be subject to professional sanctions, up to and including disbarrment if things get very bad.
Frivolous lawsuits are most often "thrown out" for a failure to state a claim. This can be done by the court on its own ("sua sponte"), or because the defending party filed a motion to dismiss for a failure to state a claim. For this to happen, there can be no way that the law allows for the plaintiff to prevail, based on the pleadings filed. The court can't look to other evidence.
Another pretrial tool is a summary judgement motion. Basically, for a claim to be dismissed at the summary judgement stage, the parties need to agree as to what the important (material) facts are. Then, as the theory goes, the judge can look at the facts, look at the law, and decide how the law applies to the facts. While that may sound like what juries do, juries are just "fact finders," and don't actually deal with the law in the way most people think that they do. In our system, it's the judges who decide what the law is, the jury who decides what the facts are (i.e. did the defendant actually stab the victim?).
Finally, as to your main question, how long can this drag on, the answer is "it depends." It depends on how full the court's docket is, how the parties work together, how active the judge is in getting the parties to work together, and statutory guidelines. Criminal cases almost always go faster than civil cases, because as a criminal defendant you're entitled to a "speedy trial" under the constitution, which, IIRC, runs at 6 months if you do nothing to extend it. Civil cases don't have the same constitutional requirement.
On preview, a bit of this is repetitive; took me a while to type.
posted by craven_morhead at 10:05 AM on February 5, 2010 [1 favorite]
If it is so easily disproven, why hasn't her attorney tried to have the case thrown out?
I had one case that dragged on for AGES (it was a judicial declaration of death, which isn't a case with an opposing attorney) despite my attempts to hurry it along; in that case, the judge was newish and unsure of the law (it had been about 8 years since the last judicial declaration of death in that county) and basically stalled it for 18 months until judicial assignments changed. The new judge declared the guy dead 2 minutes after I walked into his courtroom and couldn't believe how many affidavits the old judge had made me gather to put me off repeatedly.
But most judges prefer to move cases along; in this case, where there's already sanctions against the attorney (is the state licensing board involved? if not, why not?), why isn't the judge or your friend's lawyer pushing for a trial or dismissal ASAP?
posted by Eyebrows McGee at 10:09 AM on February 5, 2010
I had one case that dragged on for AGES (it was a judicial declaration of death, which isn't a case with an opposing attorney) despite my attempts to hurry it along; in that case, the judge was newish and unsure of the law (it had been about 8 years since the last judicial declaration of death in that county) and basically stalled it for 18 months until judicial assignments changed. The new judge declared the guy dead 2 minutes after I walked into his courtroom and couldn't believe how many affidavits the old judge had made me gather to put me off repeatedly.
But most judges prefer to move cases along; in this case, where there's already sanctions against the attorney (is the state licensing board involved? if not, why not?), why isn't the judge or your friend's lawyer pushing for a trial or dismissal ASAP?
posted by Eyebrows McGee at 10:09 AM on February 5, 2010
Even when the parties aren't dragging their feet, litigation can easily take years. A relative of mine was involved in a lawsuit which was filed in 1999 but only went to trial in 2005. Truly major litigation, like the classic SCO-Linux battle, can take even longer than that, i.e. the suit, filed in 2003, and having already gone up to the Tenth Circuit, still hasn't gone to trial (though it looks like that may happen now).
There are two main reasons for this. The first is that court dockets that are filled up months, even years in advance. So the earliest official attention you can get from a judge if you file a lawsuit today may well not be for months. Second, discovery, the process of exchanging and gathering evidence, can take a long time. Each side wants to make sure it has everything it needs to prove its case, which means asking the other side to produce documents, records, people, and things. The production can take months and the analysis can take longer: 10,000 pages of evidence don't exactly copy or read themselves.
In this case though, it simply sounds like the plaintiff's attorney is stalling. Given how long litigation can reasonably take, this is easier than it probably ought to be. One option in such cases is to file a motion to dismiss a case for failure to prosecute. This will actually have to be filed by the defendant's attorney; judges generally don't dismiss cases on their own motion unless they discover that they lack jurisdiction to hear the case in the first place.
posted by valkyryn at 10:14 AM on February 5, 2010
There are two main reasons for this. The first is that court dockets that are filled up months, even years in advance. So the earliest official attention you can get from a judge if you file a lawsuit today may well not be for months. Second, discovery, the process of exchanging and gathering evidence, can take a long time. Each side wants to make sure it has everything it needs to prove its case, which means asking the other side to produce documents, records, people, and things. The production can take months and the analysis can take longer: 10,000 pages of evidence don't exactly copy or read themselves.
In this case though, it simply sounds like the plaintiff's attorney is stalling. Given how long litigation can reasonably take, this is easier than it probably ought to be. One option in such cases is to file a motion to dismiss a case for failure to prosecute. This will actually have to be filed by the defendant's attorney; judges generally don't dismiss cases on their own motion unless they discover that they lack jurisdiction to hear the case in the first place.
posted by valkyryn at 10:14 AM on February 5, 2010
Well, there's Rule 11 sanctions for frivolous lawsuits, but I have no idea how that applies to civil suits.
posted by Civil_Disobedient at 10:16 AM on February 5, 2010
posted by Civil_Disobedient at 10:16 AM on February 5, 2010
Rule 11 is part of the Federal Rules of Civil Procedure, so I'm not sure what else it could be for.
posted by valkyryn at 10:23 AM on February 5, 2010 [1 favorite]
posted by valkyryn at 10:23 AM on February 5, 2010 [1 favorite]
In almost every civil case, a judge will issue a scheduling order establishing various deadlines. If the plaintiff fails to meet those deadlines, the defendant can usually move to dismiss the case for "lack of prosecution," and this is true whether the lawsuit is frivolous or extremely meritorious. It sounds like in your friend's situation, there may be some tactical reason for not moving to dismiss the case -- perhaps her lawyer keeps agreeing to give the plaintiff's lawyer extensions, thinking that eventually he will just go away and it's not even worth the effort to prepare and file the motion to dismiss for lack of prosecution.
As for protections against frivolous lawsuits, they exist (such as the previously mentioned Rule 11) but the applicable legal principles are often so flexible that courts are reluctant to deem a case "frivolous." If a lawyer can advance even a weak legal and factual argument in support of a claim, it will likely not be considered frivolous, even if the plaintiff is almost certain to lose.
posted by crLLC at 10:35 AM on February 5, 2010
As for protections against frivolous lawsuits, they exist (such as the previously mentioned Rule 11) but the applicable legal principles are often so flexible that courts are reluctant to deem a case "frivolous." If a lawyer can advance even a weak legal and factual argument in support of a claim, it will likely not be considered frivolous, even if the plaintiff is almost certain to lose.
posted by crLLC at 10:35 AM on February 5, 2010
craven_morhead has it. PLUS the California civil rules include a provision for a defense attorney (or the court on its own) to dismiss a claim for failure to prosecute or to bring to trial within X years. The free attorney may not want to take the time to put papers together if he/she views it as inevitably happening without papers through the passage of time. (Don't know if that makes sense to anyone but me.)
posted by ClaudiaCenter at 10:37 AM on February 5, 2010
posted by ClaudiaCenter at 10:37 AM on February 5, 2010
If your defense lawyer is really aggressive, the matter can get thrown out more quickly -- sometimes. It helps to threaten the other side with sanctions or countersuits, or to be willing to offer a small amount as a settlement, just to free yourself from aggravation.
Otherwise, the problem is that the civil system is set up with a bias towards plaintiffs. (And I say this as a plaintiffs' lawyer!) To explain, here are the likely stages of litigation. This is for federal court, but state courts are pretty similar:
1) Plaintiff files a complaint.
2) Within 3 weeks, Defendant files a "motion to dismiss" arguing that the claim is without merit, and Plaintiff responds. This stage is extremely biased towards the plaintiff - as long as he can make a "plausible" claim, he will win.
3) Judge rules on the "motion to dismiss" any time within say 1 to 6 months (average - could be longer).
4) In the mean time, while waiting for the ruling on the "motion to dismiss," the parties begin "discovery" -- the very expensive, time consuming process of taking depositions, getting documents, etc.
5) Judge probably rules in favor of the plaintiff on the motion to dismiss.
6) 6-12 months after complaint is filed, Defendant files a "motion for summary judgment" and plaintiff responds. The standard here is much more friendly to the defendant - the plaintiff has to show that there are actually facts that support his version of the truth.
7) 1-6 months later (maybe longer) the judge rules on the summary judgment motion, probably in favor of the defendant.
So, as you can see, at a minimum this whole process probably takes a year and a half, and it could easily go out to two years. Not to mention that even after this is all over, the plaintiff could appeal...
posted by yarly at 10:42 AM on February 5, 2010 [1 favorite]
Otherwise, the problem is that the civil system is set up with a bias towards plaintiffs. (And I say this as a plaintiffs' lawyer!) To explain, here are the likely stages of litigation. This is for federal court, but state courts are pretty similar:
1) Plaintiff files a complaint.
2) Within 3 weeks, Defendant files a "motion to dismiss" arguing that the claim is without merit, and Plaintiff responds. This stage is extremely biased towards the plaintiff - as long as he can make a "plausible" claim, he will win.
3) Judge rules on the "motion to dismiss" any time within say 1 to 6 months (average - could be longer).
4) In the mean time, while waiting for the ruling on the "motion to dismiss," the parties begin "discovery" -- the very expensive, time consuming process of taking depositions, getting documents, etc.
5) Judge probably rules in favor of the plaintiff on the motion to dismiss.
6) 6-12 months after complaint is filed, Defendant files a "motion for summary judgment" and plaintiff responds. The standard here is much more friendly to the defendant - the plaintiff has to show that there are actually facts that support his version of the truth.
7) 1-6 months later (maybe longer) the judge rules on the summary judgment motion, probably in favor of the defendant.
So, as you can see, at a minimum this whole process probably takes a year and a half, and it could easily go out to two years. Not to mention that even after this is all over, the plaintiff could appeal...
posted by yarly at 10:42 AM on February 5, 2010 [1 favorite]
...and if there's more than one claim being litigated, well, all bets are off.
posted by valkyryn at 11:13 AM on February 5, 2010
posted by valkyryn at 11:13 AM on February 5, 2010
yarly must be totally psychic--that is pretty much exactly how our custody dispute with our daughter's birthfather played out. It astonished me how long it took (and how much it cost us) for what really was a very simple question of whether he had properly established paternity.
posted by not that girl at 11:22 AM on February 5, 2010
posted by not that girl at 11:22 AM on February 5, 2010
I agree with yarly, and want to stress that, at least in my opinion, our system is setup this way to give everyone their "day in court." While I'll admit that it's a rough analogy, our system is ok with letting some criminals go free, and would rather do so than imprison the innocent. In the same way, we would rather allow frivolous claims to languish in the system for a while if it means that we don't throw out any meritorious claims.
posted by craven_morhead at 12:09 PM on February 5, 2010 [1 favorite]
posted by craven_morhead at 12:09 PM on February 5, 2010 [1 favorite]
It sounds to me like your friend's lawyer/family member is at least as unwilling to do anything about this case -- understandably, because they're not getting paid -- as the plaintiff's lawyer. If a client were paying, they'd demand that the lawyer do something, and the lawyer could file one of various types of motions -- for instance, if you think the case has no merit on its face (dismissal), if you think that the facts the plaintiff has evidence for still fail to prove the case (summary judgment), or if you think the plaintiff has failed to participate in the case (failure to prosecute).
It sounds like your friend's lawyer would rather not spend their time preparing a motion and arguing it -- time that they could be spending on paying cases -- and instead is just letting the case go on, devoting as little time as possible to it and hoping the plaintiff's attorney will give up.
If you found yourself in a position like this, you'd demand more active representation.
posted by palliser at 12:14 PM on February 5, 2010
It sounds like your friend's lawyer would rather not spend their time preparing a motion and arguing it -- time that they could be spending on paying cases -- and instead is just letting the case go on, devoting as little time as possible to it and hoping the plaintiff's attorney will give up.
If you found yourself in a position like this, you'd demand more active representation.
posted by palliser at 12:14 PM on February 5, 2010
Since the original complaint was filed, the accusing parties attorney has done nothing.
When I say more active representation would help here, by the way, I'm assuming that what you said is literally true -- that this attorney has not requested documents or depositions or anything else from your friend, in two years, but has just shown up (or not) at case management sessions.
posted by palliser at 12:20 PM on February 5, 2010
When I say more active representation would help here, by the way, I'm assuming that what you said is literally true -- that this attorney has not requested documents or depositions or anything else from your friend, in two years, but has just shown up (or not) at case management sessions.
posted by palliser at 12:20 PM on February 5, 2010
Once again, this varies by state. But in many jurisdictions, the judge's ingrained response is to allow the jury to decide factual issues, so long as the plaintiff has alleged facts that, if proven, would make his case. There is summary judgment mechanism to allow the defendant to show that the facts themselves are undisputed and would defeat the claim, but if there is any glimmer of a factual dispute, the judge's reaction is to "let the jury decide". You see, it takes the onus off him.
posted by megatherium at 1:41 PM on February 5, 2010
posted by megatherium at 1:41 PM on February 5, 2010
megatherium, it's not that the judge is deferring to the jury if there is a glimmer of a factual dispute, it's that the judge *cannot* resolve factual disputes unless it's a bench trial.
posted by craven_morhead at 1:46 PM on February 5, 2010
posted by craven_morhead at 1:46 PM on February 5, 2010
This thread is closed to new comments.
A long time. To adopt a familiar saying, a lawsuit can stay frivolous longer than you can stay solvent.
Can the judge just throw the whole thing out?
Yes, if s/he so chooses. In most courtrooms, judge=god
Is there some kind of legal mechanism to protect people from frivolous lawsuits like this?
Yes and no. In some cases the plaintiff, if their complaints are deemed extremely frivolous, can be compelled to pay attorneys' fees for the defendant.
posted by jckll at 9:53 AM on February 5, 2010