08 December 2005


Some aspects of federal civil procedure get overused. For example, Fed. R. Civ. P. 12(b)(6) provides for dismissal of a complaint for failure to state a cause of action; that is, that no legal theory would allow the plaintiff relief under any hypothetical set of facts consistent with those stated in the complaint. This is an extremely narrow standard, yet seems to be the knee-jerk response of Certain Law Firms to any claim against their clients.

Conversely, some aspects of federal civil procedure get nowhere near enough use—especially because they tend (in practice) to apply more to defense strategy, tactics, and actions than to those on the left side of the v. One of those provisions reads:

Any attorney … who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. And thus, an object lesson from the Tenth Circuit in the dangers of raising—and pressing—frivolous defenses.

It is evident from the record and the course of litigation that the behavior of EchoStar's attorneys was both "unreasonable and vexatious." The District Court found that, given the narrow standard of review, the arguments presented on behalf of EchoStar were completely meritless and therefore the course of the proceedings was unwarranted. The District Court also found that these attorneys need not have filed lengthy briefs at every stage of the arbitration and court proceedings in order to preserve EchoStar's arguments for appeal. Nothing in the record indicates that the District Court abused its discretion in finding such action sanctionable.

Dominion Video Satellite, Inc. v. EchoStar Satellite Comm., Inc., No. 04–1465 (10th Cir. Dec. 7, 2005).

So, the only solution to the "litigation crisis" is to keep plaintiffs from coming to court at all, eh?