A Guide to Vexatious Litigation


The law gives lawyers wide discretion in how they litigate a case. So long as they don’t bring completely frivolous claims, they can aggressively pursue their clients’ interests however they see fit. Litigation when pursued aggressively can take a long time—years, even.


Vexatious litigation is intended to annoy, shame, or cost the defendant money in legal fees. When such action is initiated, the plaintiff either knows or ought to know that there is no legal basis for the lawsuit. The harmed party frequently brings a claim for malicious prosecution to collect compensation for vexatious litigation. In this article, we explain vexatious litigation tactics and how they impact your case. Contact us today for help if you believe you are a victim.


What are Examples of Vexatious Litigation?

Litigation is time consuming. The discovery process alone can take many months or even a year, with each side requesting the production of documents or sharing of information. In this day and age of digital communication, one side might demand that the other provide a copy of every email sent containing certain words, like “bank” or “lie.” The amount of data a lawyer must pore over is enormous.


Vexatious litigation can take many forms:


· Committing multiple violations of the rules of civil procedure

· Abusing the discovery process

· Filing multiple claims against a defendant that are frivolous

· Making misrepresentations to a judge which drags out the litigation


What Are Sanctions for Vexatious Litigation?

It will depend on the court which is hearing the case and the misconduct. For example, Rule 11 of the Federal Rules of Civil Procedure permits a judge to impose sanctions for factually misleading or legally frivolous representations made by a lawyer. These sanctions might include requiring a lawyer to take continuing education classes or even a monetary fine.


A federal law, 28 USC §1927, could also come into play. If you multiply the litigation improperly, then a judge is empowered to engage in fee shifting. This means the vexatious lawyer will have to pay the other side’s legal fees and costs.


Unlike Rule 11, section 1927 typically requires repetitive or intentional misconduct for sanctions to apply. A single misstatement in a legal pleading might warrant Rule 11 sanctions but not the more serious sanctions under the federal law.


If you are in state court, then South Carolina judges also have the power to punish harassing litigation under Section 15-36-10 of the South Carolina Frivolous Civil Proceedings Sanctions Act. You can be sanctioned as an attorney or even as a pro se litigant for filing a frivolous legal document or making frivolous arguments not reasonably supported by the facts or law.


A judge can impose any sanction which the judge thinks is “just, equitable, and proper” under the situation. These sanctions can include paying “reasonable costs and attorney’s fees” for the other side.


Our Duty to Investigate Claims

Many clients want an immediate answer whether their case has merit. However, as we typically explain in a consultation, we need to know more information about a case before we can give a solid answer. It would be unethical for us to simply always say, “Yes, you can sue” when that might not be the case.

Under the rules that bind lawyers, we must make a reasonable investigation into a case before we file any legal documents with a court. If we don’t, we can face sanctions under the rules and laws listed above.


This investigation can be preliminary. In many cases, the evidence we need is in the possession of the other party—which has no obligation to turn it over without an ongoing lawsuit. We might only have your memories of an incident to go on, which might be incomplete.


The law doesn’t require that we have rock solid proof of every allegation filed in a court document. Nonetheless, we need to reasonably vet a claim before filing a lawsuit. This review also requires that we understand the current state of the law to see if your claim is valid. For all of these reasons, we might request more information before deciding whether your case has merit.


It is also important to be upfront with your lawyer in a consultation and answer questions honestly. If we find out during a lawsuit that you lied, we might need to withdraw from your case.


Fighting Back Against Vexatious Litigation

We sometimes find ourselves on the other side of an aggressive attorney who has filed baseless claims or submitted false information to the court. This is never fun. However, because we know the rules that bind lawyers, we can often move the court for sanctions. Sometimes, where misconduct is egregious, we might even ask for fee shifting.


Judges usually hold a hearing before imposing sanctions, and each side can present evidence. Even if we don’t win the hearing, we might improve our clients’ odds of success if the case goes forward. A judge will look at the other side with a skeptical eye.


A Lawsuit Isn’t Revenge

Vexatious litigation also comes into play with family law disputes, and some may let emotion make decisions for them. At Surasky Law, we believe in aggressive representation of our clients. But there are limits. This includes making false allegations.


At our firm, we always advise clients if we think a legal strategy runs the risk of sanctions. Fortunately, we perform thorough investigations so that we are usually quite confident of all our legal and factual arguments before a judge.


Contact Our Law Firm for Help with a Legal Dispute

Our legal team prides itself on providing the highest ethical representation to our clients. We have built a strong reputation with local judges by not engaging in vexatious litigation. To request a meeting, contact us by phone or online.

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