Litigation is a long, strange trip most times.  It is an environment that is separate from reality in quite a few ways.  And this is nearly impossible to explain and accurately convey to people unless they themselves have sued someone or been sued themselves.

What I warn potential clients when they indicate that they want to commence litigation is this:  The Rules of Civil Procedure enable your opponent to engage in some pretty frustrating behavior.  So frustrating that you will begin to wonder why the unreasonable party tends to prevail in litigation matters without much adverse consequence.  How can they keep delaying the hearing?  Why don’t they have to produce the documents on time???  How they get away with this??  This can lead to a lot of emotional distress whether in a commercial litigation matter, personal injury case or a family law matter.

And here is the answer: the Rules of Civil Procedure create an environment where the team that acts reasonably sometimes gets chewed up and spit out.  It is the unreasonable litigant that usually prevails.   This is why they won’t let me teach law school….

There are limits, however.  Parties (and their attorneys for that matter) can’t simply adopt any old outrageous position they want simply to harass, delay or oppress their opponent.  There are limits.

In federal court in New York, the Beastie Boys filed suit against Monster Energy Company (captioned Beastie Boys, a New York Partnership, et al. v. Monster Energy Company, Docket No. 12 Civ. 6065 (PAE)).  This was a copyright act dispute in which the Beasties alleged, through their counsel of course, that Monster Energy Company violated The Copyright Act and the Lanham Act by using recording of the Beastie’s work in Monster advertising without license or permission from the Beasties.  OK so far?  Good….

At trial, the Beasties prevailed on their claims, and were awarded approximately $2 Million.  However, under The Copyright Act, a plaintiff can be entitled to recover attorneys fees in certain circumstances.  The Beasties counsel racked up over $2 Million in legal fees, which was due – allegedly – to the conduct of the Defendant’s counsel.

Locally, in Pennsylvania state litigation, there is a similar concept.  If you are a defendant in what you believe is a frivolous lawsuit brought against you, you may have a powerful weapon at your disposal: the Dragonetti Act.   This law enables parties to be held liable if they initiate litigation in “a grossly negligent manner or without probable cause and primarily for a purpose other than” the proper adjudication of their claim.  Also, the person being sued must have had the litigation end in his or her favor.  See 42 Pa.C.S.A. § 8351.

While the Dragonetti Act is not something you get to deploy everyday against an opponent, it is indeed a powerful tool if you or your client is on the receiving end of a litigation matter that has been pursued for harassment purposes.