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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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