Theory on framework issues

Monday, November 23, 2009

2.1.1 Abolish vexatious-litigant security deposits

Like every witch-hunt, the persecution of the litigious damages general jurisprudence. In California the judiciary's self-serving ratification of the vexatious litigant statute's security-deposit procedures has done the worst damage. The statute permits the court or other party to move to condition the vexatious litigant's right to prosecute the action on his posting a security deposit to cover the opposing party's reasonable expenses, including attorney fees. To grant the motion for a security deposit, the court must find that the plaintiff doesn't have any reasonable probability for success on the merits. In the California Supreme Court case dealing with the provision's constitutionality, the court erroneously held the trial court can weigh the evidence to condition civil trials on vexatious-litigation security deposits without violating California's state-constitutional right to trial by jury. (See Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

The right to a jury trial is the strongest argument against allowing the court to weigh the evidence at a summary proceeding, but the Supreme Court was cursory in analysis and fatuous in conclusion: "The grant of a [motion for plaintiff to post security] does not preclude a trial; it merely requires a plaintiff to post security." (Moran, supra.) The court ignores settled law holding that "while the Legislature can adopt reasonable procedural requirements for the enforcement of [a self-enforcing constitutional right such as to a jury trial], it can do nothing which would unreasonably curtail or impair it." (Vinnicombe v. State (1959) 172 Cal.App.2d 54, 56.)

California's anti-SLAPP statute provides for a summary procedure for lawsuits potentially aimed at inhibiting exercise of basic rights. A SLAPP suit is a kind of vexatious lawsuit, and other potentially vexatious lawsuits shouldn't face obstacles exceeding those imposed by the anti-SLAPP statute, which prohibits weighing the evidence. The most coherent way to adjudicate potentially vexatious litigation summarily is to expand the anti-SLAPP statute to include lawsuits that are demonstrably part of a vexatious pattern.

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Joshua Tree, California 92252-2141, United States
SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.