84 CBJ 255. VEXATIOUS LITIGATION IN CONNECTICUT: MALICIOUS PROSECUTION OF CIVIL ACTIONS, PROBABLE CAUSE, AND LAWYER LIABILITY.

• Author: By Kenneth Rosenthal

Connecticut Bar Journal

Volume 84.

84 CBJ 255.

VEXATIOUS LITIGATION IN CONNECTICUT: MALICIOUS PROSECUTION OF CIVIL ACTIONS, PROBABLE CAUSE, AND LAWYER LIABILITY

Connecticut Bar JournalVolume 84, No. 3, Pg. 255September 2010VEXATIOUS LITIGATION IN CONNECTICUT: MALICIOUS PROSECUTION OF CIVIL ACTIONS, PROBABLE CAUSE, AND LAWYER LIABILITYBy Kenneth Rosenthal(fn*)Connecticut's statutory proscription against vexatious litigation (currently General Statutes Section 52-568) has been on the books since the colonial codification of 1672, providing then, as today, for treble damages to the party aggrieved.(fn1) In addition to compensatory damages to the victim, the early versions of the statute required that a three-time offender be "judged and proceeded against" for barratry(fn2)-a criminal offense dating to the colony's original codification of 1650, copied from a 1641 Massachusetts enactment that the Connecticut's founders adopted shortly after migrating from the Bay Colony to settle in the Connecticut valley.(fn3)

The vexatious litigation statute has been the subject of reported decisions from the earliest volumes of the Connecticut reports.(fn4) But it is in more recent history, as we approach the 340th anniversary of the statute's adoption, that the most important developments have occurred, establishing a fitting occasion to examine the central elements of Connecticut's civil remedy for wrongful litigation. Indeed, during the last decade, the number of substantive rulings on the subject by Connecticut courts at all levels exceeds the total for the entirety of the preceding two centuries, as if litigants, particularly in civil cases, have re-discovered the cause of action. Of the 761 Connecticut state court cases in which the terms "vexatious litigation" or "malicious prosecution" appear in the Lexis database (which includes state supreme court cases beginning with 1765, and trial court cases beginning in 1936), more than 85% have occurred since 1990, with 51% arising in just the last ten years,(fn5) including twelve Supreme and Appellate Court opinions(fn6) and many multiples of that number in the trial courts.

There are a number of factors that have contributed to this development. First, the statistics themselves are somewhat exaggerated because the volume of reported Connecticut cases per year in Lexis for recent periods is substantially greater than the volume for earlier periods. second, in the late 1980s there was a significant amendment to the vexatious litigation statute, eliminating malice as a prerequisite to maintaining the action (although it remained a factor in determining the level of damages available).(fn7) Third, there is anecdotal evidence that vexatious litigation cases have become more common nationally, gaining acceptance, if not respectability, as an important component of the "systems to defend the law from misuse."(fn8)

1. History

   Connecticut's statutory remedy for vexatious litigation is relatively unique. Although it has long been construed to track the established elements of common law actions for malicious prosecution(fn9) that are recognized in most states- prior termination of the underlying suit in the victim's favor, the absence of probable cause to support the suit, and malicious intent in bringing it-the Connecticut statute's powerful sanction of treble damages is not available in other jurisdictions, and Connecticut is unusual in providing any statutory remedy at all.(fn10)

   As with the coordinate statutory proscription against barratry, Connecticut's vexatious litigation statute was adopted from a similarly worded Massachusetts statute.(fn11) None of the reported cases under the statute, even those decided in the early volumes of the Connecticut reports, offer any discussion of its historical antecedents or legislative history, most likely because the purpose and accepted importance of such statutory protection against vexatious suits were self-evident and derived from centuries of concern over abuse of legal process. One indication that the necessity of protection and strong sanction against litigious excesses was self-evident at the time is the simultaneous enactment of legislation punishing barratry, as noted above-a criminal offense to which the vexatious suit statute made express reference.(fn12) Another is the fact that the vexatious suit statute and barratry statute were deemed of sufficient importance to be included (as in Massachusetts) among the first laws that the Connecticut settlers adopted for their governance, in a Code that consisted of less than 75 pages in total.(fn13)

   Concern over abuse of legal process was inherited from England, in which the issue was recognized since at least the time of Edward I in the late 13th century.(fn14) That concern continued to be paramount as of the time the Connecticut statute was enacted in the late 17th century, as reflected in the criminal and civil proscriptions against champerty, maintenance and barratry, and Coke's comments, among others, on the substantial "mischief' occasioned by the "stir[ring] up" of quarrels, and "subver[sion] of justice and truth" occasioned by such practices.(fn15)

   These concerns were carried over to the American colonies.(fn16) Nor did they end with the establishment of the American Republic. Connecticut Supreme Court decisions continued to note the dangers of litigious overreaching well into the 19th century. In 1837, in Stone v. Stevens,(fn17) the Court stated that actions for malicious prosecution "are frequent in the history of judicial trials" and important to the principles of sound judicial administration, because malicious prosecution "serves all the purposes of malice, by putting the party to expense, and exposing him," while serving "no purpose of justice."(fn18) The previous year, in Whipple v. Fuller,(fn19) the Court noted that the statutory and common law remedies for vexatious litigation were designed to remedy "whatever engines of the law malice may employ to compass its evil designs against innocent and unoffending persons," and the accompanying injury to reputation and expenses of defending unfounded lawsuits.(fn20) And in Sterling v. Adams,(fn21) in one of the earliest reported Connecticut Supreme Court opinions, the plaintiff successfully refuted the claim that damages for vexatious litigation should not be allowed because taxable costs in the underlying litigation were allegedly adequate, noting that the costs of defense alone in the underlying suit had exceeded allowable taxable costs more than 100-fold.(fn22)

2. Probable Cause: The Key Element

   The determination of whether a defendant's prior suit was vexatious turns on whether there was probable cause to support it. The probable cause standard has deep roots in Anglo-American jurisprudence,(fn23) and is the fundamental mechanism for distinguishing between legitimate and illegitimate uses of judicial process in a number of settings, including constitutional limitations on search and seizure under the Fourth Amendment, the availability of qualified immunity in civil rights litigation for false arrest, statutory limitations on prejudgment attachments, and statutory and common law damages actions for vexatious litigation.

   The definition of probable cause has remained constant across all of these settings. ultimately, it is an objective standard, informed by the need to interpose dispassionate "scrutiny" from an "impartial" perspective, as a control on the distortions of adversary or law enforcement zeal: examination by a "detached and neutral magistrate" in the Fourth Amendment context; determination by a jury of objective "reasonableness" for purposes of qualified immunity in the false arrest cases; and the prudent man standard applied to private litigants in vexatious litigation.(fn24) subjective good faith is not enough; if it were, the protections that probable cause was intended to provide "would evaporate," subject only to the discretion of the arresting officer or zealous litigant.(fn25)

   Probable cause can turn on issues of fact or issues of law. This "analytical dichotomy" is "due to the factual legal duality involved in virtually all lawsuits," the tenability of which will "depend upon the factual circumstances established by the evidence and the legal theory upon which relief is sought."(fn26) Thus, in adjudicating qualified immunity in false arrest cases, there is a legal component-whether the omitted information is relevant in light of controlling law-and a factual component-whether the omitted information would have been likely to impact the magistrate's decision in issuing the warrant.(fn27) In the majority of false arrest cases, it is the factual component, not the legal component, that is the central determinant of qualified immunity, and the issue is accordingly assigned to the jury.(fn28)

   In the vexatious litigation context, the dual legal and factual composition of probable cause is expressly set forth in the very articulation of the standard: "the [vexatious litigant] lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim assert-ed."(fn29) One or the other of these two issues will be part of every vexatious litigation case: (i) whether the defendant had a bona fide factual basis to pursue the underlying action; or (ii) whether the causes of action asserted were legally tenable under applicable law. As with qualified immunity cases, the majority of...