Filing history could be grounds for sanctions

A litigant’s history of filing frivolous pleadings in other courts could be considered in a sanctions motion if a General Assembly proposal is adopted.

A House Courts subcommittee voted 6-2 this month to recommend reporting House Bill 1624. The bill would allow a court considering sanctions to take into account similar pleadings or motions filed elsewhere in violation of Virginia’s good faith pleading statute.

Bill sponsor Del. Robert D. Orrock Sr., R-Thornburg, said some plaintiffs are abusing the system with repeated frivolous lawsuits in hopes of scoring a nuisance settlement.

“I’m aware of at least a couple circumstances where these individuals are kind of making a living out of doing this,” Orrock told delegates at a Jan. 16 subcommittee meeting. He said when such frivolous suits are dismissed, plaintiffs frequently refile in another jurisdiction, forcing a defendant to defend the claim a second time.

Orrock said his measure would allow a defendant to show a judge evidence of a pattern of similar suits in other jurisdictions by the same plaintiff. “Whereupon, the judge could say, ‘Okay, you’re gaming the system. You’re playing games here,’” Orrock said.

Del. David J. Toscano, D-Charlottesville, warned that lawyers could be exposed to sanctions if their clients don’t disclose prior lawsuits.

“This is going to put attorneys at greater risk,” Toscano said. “This would put a greater burden on attorneys to check out everything about a person’s past legal experience with the courts.”

Toscano said he thought a court could take into account prior misdeeds anyway on a sanctions motion. Orrock said it was his understanding that a court could not consider prior bad pleadings unless the judge had personal knowledge of it.

Despite Toscano’s concerns, the sanctions proposal now goes to the full House Courts Committee.

The same subcommittee failed to report a second bill addressing frivolous claims. Legal aid lawyers sought a way to immunize victims of sexual violence from unfounded lawsuits based on statements made by a victim in the course of seeking protection from an abuser.

Subcommittee chair Del. James A. Leftwich Jr., R-Chesapeake, expressed concern the measure – House Bill 2111 – would reach too far and discourage legitimate litigation.