The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation

Authors

Jonathan K. Van Patten
Robert E. Willard

Abstract

Courts in most American jurisdictions have long imposed civil liability on plaintiffs who misuse court processes by asserting malicious or abusive claims. In contrast, no jurisdiction has explicitly recognized tort liability for corresponding actions by defendants. This disparity is anomalous in the light of defendants' increasing tendency to deny claims they know are valid in order to harass plaintiffs, to delay litigation, or to force an unfair settlement. Plaintiffs effectively are left with no remedy if a defendant decides to use judicial processes for such collateral purposes. In addition, the resulting protracted litigation clogs already overburdened courts. This Article argues that current precedent and legal principles would permit courts to establish a tort of malicious defense. Arguments advanced against recognition of the tort have been based on faulty reasoning and analysis. The tort of malicious defense should thus be recognized by the courts.

Recommended Citation

Jonathan K. Van Patten and Robert E. Willard, The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation, 35 Hastings L.J. 891 (1984).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol35/iss6/1