A couple of months ago, I remarked on appropriate responses to frivolous lawsuits in the context of Fox v. Franken. (As one columnist in The New Yorker put it—I'm paraphrasing from memory, but I think this catches the essence—keeping temperamental stars happy requires more than showering of gifts; now it requires a preliminary injunction.) A jurist at the other end of the country appears to have shown that she understands this, too; and that she is willing to apply the same theory to defendants.
Although I am sure that some experienced defense counsel out there would disagree with me, it has been my experience—keeping in mind that I do not do mass tort, product liability, personal injury, or medical malpractice work, never have, and hope never to speak those words in my professional life—that at least a substantial part, and by unscientific measure probably the majority, of the frivolous legal claims and unethical behavior that make administering justice so complex, expensive, and frustrating comes from the other side of the v. Consider, for example, the pleadings in one of my copyright matters. The defendants' counterclaims included the following gems (redacted to hide the identity of the parties):
- Any alleged injury suffered by Plaintiff was a proximate result of Plaintiff's own acts or omissions, and not of any conduct of Defendant. (In a copyright infringement action?)
- Plaintiff's claims for relief, and each of them, are barred as against Defendant because Plaintiff acknowledged, approved of, ratified, consented to, or acquiesced in the alleged conduct, if any, of Defendant. (The case was filed within a month of the plaintiff becoming aware of the infringement, after a demand letter was ignored. The remainder of the answer admits this.)
- Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant by the equitable doctrines of laches, waiver, and estoppel. (Same comment.)
- Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant by the equitable doctrine of unclean hands. (This accusation of misconduct was made with no factual allegation in support of it.)
- Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant on the grounds of res judicata and/or collateral estoppel. (Considering that plaintiff had never previously engaged in litigation with Defendant, either individually or as a member of a class—which would have been known to Defendant—this is just a bit disingenuous.).
I won't beat the already-knackered horse. These are actually some of the less-objectionable "affirmative defenses" raised in that matter. I do not deny that sometimes plaintiffs (and their attorneys) file frivolous lawsuits; as Judge Barnett realized, though, merely being the defendant does not give license to engage in virtually identical conduct.