As I’ve previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of “frivolous” — the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards — and those who practice know how rare it is for judges to actually issue sanctions.
Take John Aretakis. He’s a New York attorney who has carved a legal niche for himself suing the Catholic Church over sexual abuse by priests. Well, to be more precise, the legal niche he occupied, according to a federal judge’s ruling last month, was filing a series of “utterly baseless” lawsuits against the Church, in which he ignored the law, misrepresented the law to the court, filed cut-and-paste complaints without proofreading them, and filed and publicized the suits for the improper purpose of embarrassing and humiliating Church officials. (AP, North Country Gazette).
Although this was not the first such lawsuit filed by Aretakis — or the second, or the third — and even though his suits have been uniformly rejected, this is the first time a judge has sanctioned him for his behavior. The court described the suit harshly as follows:
Taking Mr. Aretakis’s behavior in this case as a whole, it is clear that his conduct is sanctionable because it is sloppy and unprofessional; the pleadings are so far removed from adequate that they cannot be said to have been filed in good faith or after a reasonable inquiry; the bulk of the allegations dealing with sexual abuse are wholly irrelevant to the RICO claim, and; the Title VII claim is admittedly without basis in law.
But despite this harsh description, the Court still declined to make the victims of this frivolous lawsuit whole; Aretakis was fined just $8,000 — far less than the defendants asked for — and told not to do it again.
And it wasn’t because Aretakis made such a good argument in his defense:
Not surprisingly, Mr. Aretakis’s response to the Motion for Sanctions does not respond in a meaningful way as to why sanctions are not appropriate here. Instead, Mr. Aretakis recounts an irrelevant action in Tucson, Arizona, and another regurgitation of thrice-told tales of sexual abuse, plus non-sequiturs concerning a drunken process server with felony convictions attempting to serve process, among other wholly irrelevant topics.
The text of the decision can be found here (PDF).
There are really too many choice bits from the judge’s opinion to post them all, but a few of the juiciest:
- “No reasonable attorney would have believed these claims were ‘warranted under existing law’ given the wholly deficient facts of the case.”
- “The Title VII claim fails in every possible way.”
- “The amended complaint does not fail on just one or two of RICO’s pleading requirements, but rather on every single requirement.”
- “Mr. Aretakis’s memorandum of law neglects to even mention the leading cases which are squarely against the relief he seeks.”
- “This is not the first time the Court has encountered this practice. In support of his motion to recuse the Court, Mr. Aretakis cited a particular case as controlling, without disclosing he was quoting from the dissenting opinion.”
- “Mr. Aretakis seems to have simply ignored the overwhelming precedent on point.”
- “[T]his is not the first time Mr. Aretakis has brought this kind of scurrilous lawsuit, making inflammatory allegations which have nothing to do with the claimed RICO violation.”
- “[T]his complaint is sloppy and filled with mistakes.”
- “Mr. Arektakis simply regurgitated what a U.S. District Court already held to be inadequate.”
- “He proceeded in the face of well established law in this Circuit which squarely held that his client had no standing. He did not cite that law or acknowledge or refer to it in any way in the amended complaint.”
- “At oral argument, he maintained that his client had not been terminated as alleged numerous times in the amended complaint, but rather that his job had been stolen from him. The make-believe answer is unworthy of someone claiming to be a professional.”
- “[T]he amended complaint … is littered with wholly irrelevant, inflammatory, and embarrassing facts concerning defendants and non-defendants alike that have no bearing on the actions brought”
Aretakis, needless to say, plans to appeal.
15 Comments
David: Thank you.
The law school educated judge has a pro-trial, lawyer rent seeking bias. This bias means the judge has zero fitness to regulate lawyer carelessness and misconduct.
Only a jury is fit to deter the abusive lawyer in a legal malpractice claim by the injured adverse third party.
“the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits”
One lawyer regulating another? Thats like one doctor regulating another hence fee for service mandated butchery post WWII and a super-elite group of extremely wealthy cronies.
Hmmmm, do you think it has anything to do with the fact that judges are also lawyers??? They about as effective as the Catholic church was at sanctioning bad priests.
For nonlawyers to get a sense of where this reluctance comes from, it should be known that in law school (mine, and probably others), the idea of hitting attorneys for frivolous claims is always presented against the backdrop of the sacred “social change” or novel lawsuits that would be hurt if there were too much enforcement. Judges soak this up, no doubt. Legal ethics provide that you can pursue legitimate extensions of the law (a definition without much case law behind it, I’d guess), for instance. So we’re basically at a “shocks the conscience” standard for this, which is really high, and the legal conscience right now is pretty dulled in any event. Also, most judges have at least residual affinity for the bar, as most came from the bar. Even with attorneys they might not personally like or legal theories they think baseless, “protecting the profession” does come into play – in the same way that it does for the legislatures, populated as they are with lawyers.
It’s a very amusing story, but I don’t see why it indicates the need for sanctions reform. (After all, the guy *was* sanctioned, and he deserved to be.) I posted my thoughts here.
Emmett, he was sanctioned, yes. On what was at least his fourth “offense.” In an amount inadequate to make even these defendants whole (let alone the three prior sets of defendants). Assuming, as Judge Crotty does, that this amount is sufficient to deter Aretakis from filing future suits of a similar nature, that doesn’t help all those he already sued.
Note that I am not criticizing the judge in this case so much as I am the legal regime under which he’s operating, which, as David W explains, is extremely loath to restrict the use of the courts, just in case someone comes up with a brilliant idea down the road.
To the other people who commented, it isn’t so much that lawyers are corruptly protecting their professional prospects — in particular, federal judges are unlikely to be practicing law down the road — as that for the last few decades, the courts have been seen by many as instruments of “social justice” rather than plain old justice. And they’re deathly afraid of making Type II errors (rejecting legitimate cases), so they err on the side of Type I (allowing illegitimate ones).
But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well. To my knowledge, this is the first time this sanction has been imposed on him; it may have taken four “offenses,” but only one Rule 11 motion that I know of. I doubt his practice is thriving – I suspect he’ll feel the stick of that fine.
I see your point about reluctance to restrict access to courts, and I share it. But legislatures are free to restrict access prescriptively, and if they think certain claims should not be heard, they should say so forthrightly in statute. I think that’s a better way to deal with such problems than tinkering with the Rule 11 regime, which may have many untoward consequences.
What if we empowered juries to enact sanctions on bad plaintiffs?
(Or even perhaps prosecutors in criminal cases…)
But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well.
Emmett: I understand that the court said this. And to the extent that this is an accurate assessment of Rule 11 — despite the Pavelic case cited by the court, I see no reason why sanctions can’t be used to accomplish both in a case such as this — I am arguing that it is a flaw in the current system.
Yes, but there’s a good reason why Rule 11 wasn’t written that way in the first place; if lawyers could push for Rule 11 sanctions as a way of recouping litigation expenses, they’ll push for sanctions more often. I think the cure may be worse than the disease here.
Emmitt, why do you think $8000 is a deterrant to a plaintiff’s attorney? What if he made $800,000 last year? Would $8000 still be an effective deterrent?
$8000 is ONLY a deterrent if it adversely affects his financial situation; why would it be a deterrant otherwise? Therefore, we have to ask ourselves: Did this sanction adversely affect his financial situation? The answer is “We don’t know.”
However, I don’t think that it is outside the realm of reason to assume that $8000 would not affect him adversely because in all likelihood he makes much, much more than the amount at which $8000 becomes a burden. Do you agree?
David: You asked for comments…
As you and I know from arguments in a different forum your answer to the problem of tort litigation abuse is getting judges to police the plaintiff attorneys and throw out frivolous lawsuits. I argued that this was unrealistic and ineffective and that the answer is to take the financial incentive out of if for plaintiff attorneys who have the power to bring the suits. Banning the contingency fee is the simplest way to do this.
Now you seem to be agreeing with me that judges do not do an effective job of using their power to screen out frivolous suits and sanctioning those who abuse the system. The case presented here seems to be an exception for an extreme case and not a particularly effective sanction against the abusing plaintiff attorney compared to what the defendants of such lawsuits deal with. Have you changed your position on this for Overlawyered.com?
“Yes, but there’s a good reason why Rule 11 wasn’t written that way in the first place; if lawyers could push for Rule 11 sanctions as a way of recouping litigation expenses, they’ll push for sanctions more often.”
And this is bad… why?
Scott: in those discussions, you never explained why it was more “realistic” to ban contingency fees than to change the standards by which lawsuits are evaluated. I have not changed my position.
Emmett: I believe the theory is that if we increase sanctions, we’ll disincentivize sanctionable conduct. (Note that a frivolous motion for sanctions would also be sanctionable.)
In any case, I have argued in other fora for “loser pays,” which would make the fault-based system of sanctions less important.
However, I don’t think that it is outside the realm of reason to assume that $8000 would not affect him adversely because in all likelihood he makes much, much more than the amount at which $8000 becomes a burden. Do you agree?
No, because I doubt his practice is thriving… not if he’s making these kinds of mistakes, anyway. I highly doubt he’s making anything like $800,000. And besides, who likes to pay $8000 for this kind of thing? You can make a lot of money and still be incentivized to exercise a little more professional care in order to avoid an $8000 penalty.