Whenever a particular kind of litigation becomes abundant, cumbersome and/or very costly, state courts and legislatures often attempt to meet it with some sort of control or prophylactic measure. In Washington, construction defect litigation was met by RCW 64.50.020 (mandating notice of claim and procedures for negotiations pre-suit) and RCW Chapter 64.55 (prescribing inspection, arbitration and mediation procedures for multi-unit residential building litigation). Lawsuits against governmental entities have long required compliance with pre-suit notice and claim procedures under RCW 4.96.020. In California, laws attempt to prevent frivolous or vexatious litigation by requiring court approval of actions brought by person(s) deemed vexatious. In contrast, Washington law tends to address issues of possible ‘vexatious litigation’ only after a case is underway. These are just a few examples of laws that attempt to blunt or streamline litigation that is viewed as particularly burdensome to society.
Due to the ever increasing cost of litigation and the strain it can put on public services and private industry, we will likely see an increase in the number of laws that subject new litigation to pre-suit scrutiny (especially in this economy). It makes sense to track such legislation in other states, not only because similar measures could be adopted here in some form, but also because laws seeking to improve court procedure can provide good ideas for argumentation by analogy.
Recent examples include a newly proposed tort reform law in Oklahoma concerning suits against professionals. Oklahoma House Bill 1570 would require people filing civil lawsuits for professional negligence to attach an affidavit stating that they had consulted a qualified expert who had reviewed the facts and had provided a written opinion that the facts support the lawsuitâ€™s allegations. The proposed bill provides for dismissal of the suit if the required affidavit is not provided. Those opposing the new law argue, among other things, that it would create an unconstitutional monetary barrier to courthouse access for litigants. It was estimated that a person filing a malpractice lawsuit (at least in Oklahoma) would have to spend on average between $500 and $5,000 for an expert opinion on a lawsuitâ€™s merit.
As argued by opponents of the proposed Oklahoma law, pre-filing requirements can be so costly and/or confusing that they can undermine policies of fairness and free access. For example, time sensitive notice provisions can be very tricky and are often labeled as unfair “traps for the unwary” which attorneys, let alone pro se litigants, can easily violate. See e.g., Lakemont Ridge HOA v. Lakemont Ridge Ltd. P’ship, 125 Wn.App. 71 (2005); Christiansen v. Ellsworth, 162 Wn.2d 365 (2007).
If you have an example of a law or court rule (in place or just proposed) that creates what might be considered a particularly burdensome or tricky pre-suit hurdle for plaintiffs, please share it with a comment to this post including any thoughts you may have about whether the requirement(s) imposed operate fairly or present, in your opinion, any basis for constitutional or other challenge.