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How to Deal With Aggressive Lawsuits: A Strategy

At Buffington Law Firm, our civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: “Why can’t I get this frivolous lawsuit thrown out before trial?” The question is, for many cases, understandable. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.

While there are numerous types of procedures for attacking a lawsuit prior to trial, the two most common in California State Superior Court are a “Demurrer” and a “Motion for Summary Judgment.” We will touch only briefly on the details of these two procedures (each of which will be the subject of more detailed individual Blog articles later). Suffice to say that a Demurrer is brought as a motion before the court at the beginning of a lawsuit as an attempt to attack all or some of a lawsuit, while a Motion for Summary Judgment is usually brought later in the case, (but still prior to actual trial) after discovery has taken place and key depositions have been taken.

Put simply, without legalese, a Demurrer is usually the first responsive pleading that the defense files if defense counsel decides to attack the Plaintiff’s Complaint at all. Boiled down to its essentials, to be successful a Demurrer must show two things with respect to the Plaintiff’s cause (or causes) of action i.e. the grounds for their lawsuit. Firstly, the Defense must show that even if the Court accepts all of the facts that the plaintiff alleges in the Complaint without any proof by the Plaintiff as true; it is still the case that b) the Plaintiff still fails to state a legal claim against the Defendant. Right there it is obvious that Demurrers are hard for the Defense to win. The Plaintiff is not required to actually prove anything to win a Demurrer — he or she can simply allege facts without proof, and usually so long as these facts, if true would constitute a valid claim, the Plaintiff will defeat the Demurrer. In actual court, Demurrers rarely result in the dismissal of a lawsuit, although sometimes they may successfully remove parts of it.

A Motion for Summary Judgement (“MSJ”), unlike a Demurrer, does take substantial evidence into account and is almost always filed later in the case, after the attorneys have developed the case evidence. To succeed, an MSJ must prove essentially that: a) the facts support the moving party’s case (e.g. the Defense) and the Plaintiff has no admissible evidence to controvert these facts; and b) given the facts that are uncontroverted, the moving party is entitled to prevail as a matter of law. Note that this differs from a Demurrer, where the facts as pled (not proven) by the Plaintiff must be taken as true. In an MSJ by contrast both sides must present actual admissible evidence in their pleadings. Unlike a Demurrer, in an MSJ the Plaintiff cannot win merely by alleging facts. Essentially an MSJ is an attempt by one side to try the case by written pleadings, declaration, and documents rather than by trial.

Even a slight dispute over the facts can be enough to defeat Summary Judgment. A simple hypothetical will illustrate this point. In an auto collision case where the operative dispute is whether a traffic light was yellow or red when the Ford entered the intersection, there might be five (5) eyewitnesses. If four of them say that the light was yellow and one of them testifies that the light was red, you have a controverted fact. Never mind that at trial common sense might suggest that four witnesses might likely defeat one competing witness. The one witness will defeat Summary Judgment because the subject fact, i.e. the color of the light, is controverted by admissible evidence. Essentially the law is saying that at the Summary Judgment stage of the case the Judge cannot weigh four  witnesses versus only one. Perhaps the Judge or Jury at trial will find the one witness to be more credible than the other four. Unlikely but possible.

Unfortunately, the causes for the difficulty in dismissing lawsuits via Demurrer, Motion for Summary Judgment, or other pretrial motions does not end with the simple way the law is written. Buffington Law Firm’s trust, business, and real estate litigation attorneys have noticed a distinct trend by trial judges against granting these motions in recent years. Fifteen or 20 years ago, in our opinion, California trial judges were distinctly more inclined to grant good Demurrers or Motions for Summary Judgment than is the case today. At bench-bar seminars, comments made by both judges and attorneys seem to bear out this notion.

There may be many reasons for this. First and foremost, it is notorious that the California judiciary is presently gravely underfunded and Judge caseloads have risen steadily in recent years. This of necessity makes it harder for courts to devote as much time to sometimes complex Demurrer and Summary Judgment motions, and few motions are more complex than Motions for Summary Judgement. This may be inducing a statistical lean towards denying these kinds of motions, based upon the notion that “it will get more thoroughly looked at in trial anyway.” This may be understandable, but this is of little solace to defendants who believe (sometimes in our opinion correctly) that their Summary Judgment motion had merit, they paid their lawyers good money to draft it, and now they must face (and pay for) a full-blown trial often because of a relatively flimsy “controverted fact” brought up by the other side.

Demurrers have an additional wrinkle. Even when granted, the Plaintiff usually gets leave to amend and try again, usually for at least two tries. In practice Demurrers rarely succeed in throwing out all but the most flimsy lawsuits.

The result of all of this is that many lawyers are increasingly disinclined to bring motions such as Demurrers and MSJs in many situations, even if there is objectively a credible chance at success. These motions cost money to draft. A Summary Judgment motion in particular may cost many thousands of dollars for the lawyers to draft. This is money that might be better spent for trial preparation and trial. (Or on things other than lawsuits!) These are judgment calls that lawyers and their clients must make. The present, perceived disinclination by judges to grant these pretrial motions has tilted the decision-making process to some degree against these types of motions as opposed to earlier years, at least for many attorneys.

Lawsuits are often not cheap. For Defendants, a lawsuit invariably represents an unwanted financial burden. Trying to bring these motions can be a high-cost tactic with a relatively low probability of success. This is why many attorneys believe that for many cases the best “bang for the buck” for the client is to keep pretrial procedures to a minimum and spend all legal dollars in trial preparation (or in attempts at settlement–another way to end a case before trial.)

Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits. A Plaintiff can survive Demurrer merely by alleging facts, even improbable “facts” of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion usually requires only a slight controversy concerning key facts. These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit?

At Buffington Law Firm, our civil trial dispute attorneys have a strategy. Often the best way to conclude a lawsuit, especially a weak or meritless one, is to diligently and conspicuously prepare for trial. This is often the most cost-effective litigation strategy that offers the most “bang for the legal buck.” Our trust, business, and real estate litigation attorneys believe that most times, when the other side and its attorneys see that we are plain and simple preparing carefully for trial, this leads to an earlier conclusion of the case – often by settlement at a relatively early stage. When the other side sees that we are preparing for trial in a no-nonsense manner, this often forces a party with a weak or meritless lawsuit to “get real.” Even if the plaintiff him or her self is unrealistic about the lawsuit, this often motivates the plaintiff’s attorney to make the plaintiff see reality. Lawyers do not like to lose lawsuits and often they will view a low-dollar settlement as a good way to escape from one. Further, legal costs are not confined to the defense — plaintiffs are usually paying their attorneys as well; not many trust, real estate, or business litigation cases are brought on a contingent fee basis. Even if it is, when a lawyer being paid on a contingent fee basis for a weak or frivolous lawsuit sees that our side is prepared to take the case to trial, that lawyer is faced with the prospect of working for a year on a case and very likely not getting paid for the work. Settlement becomes his or her only successful strategy.

A successful defense approach to settlement of a weak or meritless lawsuit may involve a settlement that is far less than the cost of successfully defending it. While, for example, bringing a Summary Judgment motion is certain to cost money and uncertain of outcome, a successful low-dollar settlement may cost less than such a motion and offers certainty and finality of outcome. Buffington Law Firm has successfully concluded many vexatious lawsuits by negotiating below-cost-of-defense settlements for our clients. Remember that actual trial always carries with it some uncertainty of outcome even if the Plaintiff’s case is a weak one. Every experienced trial attorney knows this.

Thus, preparing for trial is often the best approach to force an early conclusion of a plaintiff’s weak or frivolous lawsuit. The other benefit of this “prepare for trial” strategy is that if all else fails and we must go to trial, we are ready and all of the legal costs in the case have been focused upon trial preparation. This inevitably lowers the overall cost of defense for our clients.

If you are faced with a trust, real estate, or business dispute, our trial attorneys have decades of experience in successfully handling such disputes. We invite you to contact Buffington Law Firm, PC, for a free legal consultation. In this consultation you will speak directly with one of our experienced trial attorneys. Attorney-client privilege and complete confidentiality apply, and there is never any obligation.