14 Geo. J. Legal Ethics 909 (2000-2001)
Frivolous Filings and Vexatious Litigation

handle is hein.journals/geojlege14 and id is 919 raw text is: Frivolous Filings and Vexatious Litigation
ERIN SCHILLER* AND JEFFREY A. WERTKIN*
INTRODUCTION
Are frivolous lawsuits clogging our judicial system? The answer may depend
on how we define frivolous. Frivolous is a subjective word; what may be a
frivolous complaint or argument to one person can be of primary importance to
another. Most attempts to address the problem of frivolous litigation reflect an
appreciation of its subjective nature. Rule 11 of the Federal Rules of Civil
Procedure, Rule 3.1 of the Model Rules of Professional Conduct, and § 170 of the
Restatement of Law Governing Lawyers all seek to balance efforts to curb
frivolous suits with an understanding that prohibitions against such suits should
be tempered to avoid over-enforcement.
Historically, legislators have understood this need for balance, as evidenced by
the 1993 Amendments to Rule 11 of the Federal Rules of Civil Procedure. More
recently, however, state and local lawmakers have come to believe that these
standards do not go far enough. The popular conception that lawyers and
vexatious litigants routinely abuse the justice system for personal gain is reflected
in, and perpetuated by, the news media, television dramas, and political rhetoric.
This widespread notion of lawyers and frivolity has translated into political
capital for national and state politicians. In recent years, a virtual deluge of
legislation has been proposed to curb frivolous suits and judgements. Much of
this legislation attempts to affect attorney behavior by limiting judgements,
adjusting pay schemes, barring future litigation, and tightening procedural
requirements.
This Note will chart recent developments in state legislatures and in Congress
regarding frivolous and vexatious litigation. Using the landmark 1994 Congres-
sional Election as a starting point, we will show that the political steam which
was built up through the Contract with America achieved only a modicum of
success. We will also show how state legislatures have not only enacted state
versions of the federal rules in an effort to curb frivolous litigation, but have also
enacted vexatious litigant statutes to further curb vexatious and frivolous conduct
in state courts. Although these new statutes aim primarily at the behavior of
litigants and not attorneys, they demonstrate an effort by the states, in response to
an outcry by the public and the courts, to address the problem of frivolous and
* J.D., Georgetown University Law Center, May 2002 (expected).
** J.D., Georgetown University Law Center, May 2002 (expected).

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