As part of my upcoming series of blog entries devoted to legal concepts that are esoteric or have fallen into dissuse, my present topic is “barratry”, a common law term that is probably known to few but involves a concept that is immediately familiar–frivolous lawsuits. One common definition of barratry (alternatively spelled “barretry”) is the “vexatious stirring up of quarrels or bringing of lawsuits”, meaning repeated groundless lawsuits with the intent of harrassment or profit. The word was derived from the Anglo-Norman French term “baraterie”, meaning “deception”.
Under the English common law, being a “common barrator” was a misdemeanor but was abolished as a crime in 1967. It has likewise falled into desuetude in a number of other common law jurisdictions, such as Australia. Barratry was essentially the criminalization of an issue that is far from infrequent in our increasingly-litigious society (especially the U.S., but also in other jurisdictions), namely vexatious litigation. This, as the name suggests, consists of meritless or repetitive litigation, often designed to harass an opponent but sometimes also reflects the persistence of a litigant who refuses to accept previous legal defeats. The curtailing of vexatious litigants poses an interesting conundrum of sorts: given the primacy we ascribe to ensuring free and fair access to courts, at what point does it make sense to block an over-zealous litigant’s access to the judicial system? California law defines a vexatious litigant as someone who meets any of several criteria, including having over the previous 7 years having litigated five or more non-small claims cases that were decided against them, repeatedly attempting to relitigate matters already disposed of, filing frivolous motions meant to harrass or delay, or having already been declared a vexatious litigant in state or federal court in a substantially similar matter. In fact, California helpfully updates on a monthly basis its list of vexatious ligitants, meaning people who have been declared to meet this legal definition and have been barred from court access unless they apply for and are granted permission by the court in which they intend to file. So far this law has passed constitutional muster, most recently in a 2007 decision before the Ninth Circuit Court of Appeals .
Barratry also has another, related meaning, and it is in this context that it continues to be criminalized–although I admit to having uncovered this fact quite recently. The public loves to deride lawyers as ‘ambulance chasers’, but the phenomenon does in fact exist–although it is certainly not just the purview of lawyers as physicians, physical therapists, and other profesionals have been implicated in such tactics. When an attorney solicits lawsuits by visiting accident victims, without their previous request, he or she is commiting the offense of barratry. A recent article in The New York Times discusses the attempts to curtail this practice in Texas where it has become more common in recent years. A third-degree felony, it is punishable by 1o years in prison and a $10,000 fine but is rarely prosecuted. In 2011 the Texas legislature passed legislation designed to further clamp down on this practice, with (ironically enough) one representative (State Rep. Ron Reynolds, D-Missouri City) who voted for the new legislation finding himself charged with barratry in April 2012.
And, of course, now some lawyers are advertising services designed to curtail ‘ambulance chasing’ and get clients money, another hint of irony in all this. For an example of a law firm’s advertisement regarding this, see this delicious commercial:
Hope you enjoyed this latest entry! Comments, as always, are most welcome!