Vexatious Litigants – Litigants Who Won’t Accept “No” (or “Yes”) for an Answer
By Mark I. Levy MD, DLFAPA
Vexatious litigants are individuals who burden the judicial process by repeatedly filing causes of action that are ultimately found to be without merit. Despite the considerable cost to the judicial system (and ultimately to society) little has been written about vexatious litigation and less has been done to understand the psychological motivations for vexatious litigation in order to better manage the problem. This is partly because in a constitutional democracy everyone is deemed to be “entitled to his (or her) day in court.” The federal and state constitutions within the United States jealously protect citizens’ right to submit their grievances to our judicial systems in order to resolve civil disputes in a timely and equitable manner. At the same time, the Court, already overburdened with the shear volume of litigation, is charged the responsibility to protect the integrity of our judicial system from abuse by a very small but very troublesome minority of litigants.
Internationally, notably few jurisdictions have attempted to formally address this problem(the exceptions being Australia, The United Kingdom and the State of California). Within the United States, only California has enacted statutory regulation of vexatious litigation.
Forensic psychiatry is a subspecialty of the medical specialty of psychiatry that focuses upon the interface between law and the behavioral sciences. Since 1994, The American Board of Psychiatry and Neurology has offered qualified board certified psychiatrists the opportunity to be examined and if successful to obtain board certification in forensic psychiatry in addition to their certification in adult and/or child and adolescent psychiatry.
Like law, the profession of forensic psychiatry is practically divided between criminal and civil domains. Although there are many common elements between law and the practice of forensic psychiatry within civil and criminal matters, there are also several important differences. Within civil law, vexatious litigation has increasingly been recognized by the judiciary as a difficult problem to manage. Since vexatious litigants frequently represent themselves in propria persona, at least during some of the actions that they attempt to litigate, and since the judiciary has a responsibility to be more accommodating and helpful to such litigants who are not represented by licensed counsel, there Court is faced with a complex dilemma once it becomes apparent that a “pro per” litigant is in fact vexatious.
Only recently, however, have forensic psychiatrists begun to examine the motivations and possible psychopathology driving the litigious behavior of this individuals. The Courts’ need to more effectively manage and legislatures’ to more effectively regulate individuals who exhibit this problematical behavior. In order to assist the judiciary (as well as the legal profession) to more easily recognize the characteristics individuals fitting this profile, forensic psychiatrists and psychologists need to study and understand more fully the dynamics and motivations for this socially costly and troublesome behavior. This paper is an attempt to examine this infrequently explored terrain.
A triad of behavioral characteristics are frequently demonstrated by vexatious litigants:
1. A history of changing counsel more than once, coupled with at least one episode of representing themselves in Court in propria persona. Not surprisingly, competent counsel generally find a means to ethically remove themselves from the case after a period of poor client control. Sooner or later, usually after a time of appearing “pro per,” these litigants find counsel who more or less identify with their client, presumably for reasons having to do with their own personal psychology. The result of this is an attorney-client dyad that is driven by a mission. No client control exists nor is it even recognized by plaintiff’s counsel as lacking. Hence no settlement can ever occur.
2. Evidence of narcissistic and paranoid personality traits, obtained from psychiatric examination and psychological testing. These traits are generally manifested by attitudes expressed verbally or behaviorally (e.g., through physical appearance) conveying that the individual considers himself to be an exception, i.e., that the normal rules of behavioral conduct within a judicial process to which all litigants are expected to submit uniquely do not apply to him because he is allegedly special, having suffered abuse, humiliation and/or victimization unduly at the hands of alleged perpetrators, including judges, thereby entitling the vexatious litigant to exceptional status and accommodation by the Court. Not infrequently, although the source of alleged abuse is initially the defendant in a civil action, eventually the Court itself is drawn into this “dance” and is experienced from a paranoid perspective by the litigant, as itself also an abuser. Invariably, this is due to the Court attempting to impose a modicum of decorum on behavior of the litigant by invoking normal procedural requirements. As a result of this transformation of the Court, in the litigant’s mind, from arbitrator to oppressor, the Court’s responses may eventually be perceived as more persecutory and humiliating than was the alleged conduct of the original defendant.
3. A refusal to settle disputes through customary procedural channels of negotiation and even traditional litigation. These individuals wish to have their alleged suffering, humiliation and victimization witnessed on the stage of litigation. Their common fantasy is that unspecified “others” (the jury, initially the Court itself) will sympathize with suffering and offer some sort of illusoryl vindication and redemption. Consequently, not only do they characteristically refuse to accept negative judicial decisions, sometimes they will reject decisions in their own favor, if they believe that acceptance will terminate the litigation and their chances to obtain the imagined vindication. Although this may superficially appear to be perverse, it is in fact a direct product of their peculiar motivation to litigate in the first place, i.e., to have their alleged victimization witnessed, not to resolve conflict. Of course, such motivation leads to an endless quest because no degree of witnessing and acknowledgment of their pain can ever approach the unconditional love for which they long and thus “restore” the wounded narcissism and damaged self esteem of these individuals. If permitted to do so, they will attempt to appeal trial court decisions to the highest judicial levels.
The judicial dilemma is to balance the rights of the individual to have his “day in Court” with the pressure to assure that justice for all is administered in a timely and expeditious manner by keeping judicial calendars moving and trying to urge disputing parties to utilize alternative methods of conflict resolution, To further complicate the task, as a result of a series of revisions of codes of judicial oversight and the evolution of commissions on judicial conduct during recent decades, trial court judges are charged with balancing their judicial demeanor with the requirement that they maintain decorum within the courtroom. When confronted by the behavior of a vexatious litigant, who behaves in a manner signifying that they are an exception to the usual rules of the Court, balancing judicial demeanor with courtroom decorum can present a formidable judicial challenge.
Two instances of where this complex dynamic can strain the litigation management skills of even the most experienced judge include civil cases brought by vexatious litigants and the emotionally charged disputes, including custody matters, that are brought before a Family Court. In the former instance, as already mentioned, the litigant vehemently resists normal judicial suggestion and even the requirement that they engage in good faith in a process of alternative conflict resolution. Such efforts are perceived by these litigants as a threat to sustaining the ongoing litigation process which, as described above, for the vexatious litigant is an end unto itself. In the latter instance, custody battles and parental misconduct allegations are often presented in the service of punishing the other party. In the extreme, it is not unknown in family court for even a spousal batterer to attempt to highjack the Court proceedings as a way to continue their domination and victimization of their abused spouse.
 Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. It is considered an abuse of the judicial process and almost always brings down sanctions on the offender.
 Under California law (Code of Civil Procedure, section 391(b)) a vexatious litigant is someone in at least one of the following categories:
1. In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
2. After a litigation has been finally determined against the person, (he or she) repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.