When Civil Litigation Turns Uncivil

Litigation is often anything but civil. Instead of opposing counsel working together to resolve pre-trial issues and get to the merits of the case so that a jury or judge can resolve a dispute, a lawyer’s ego will often turn a case into something other than a dispute between two parties. Parties sometimes encourage this type of litigation by hiring a “tough guy” to represent them. This can lead to messy litigation, increased costs and a great deal of wasted energy and effort.

Because of this, Virginia state courts are sanctioning both parties and counsel on a regular basis these days. Courts are also not shy about the size of sanctions. In 2012, the Supreme Court affirmed a sanctions award of more than $270,000. Last year, the Fairfax Circuit Court imposed sanctions on a plaintiff and her counsel in an amount exceeding $880,000. Recently, the Fairfax Circuit Court again sanctioned a plaintiff and required him to pay more than $20,000 in attorney’s fees. Leppelletier v. Will Nesbit Realty, LLC, Case No. CL-2014-517 (filed May 21, 2014).

Virginia Code § 8.01-271.1 is the pertinent statute when it comes to sanctions. It imposes specific obligations upon counsel and pro se1 parties. Specifically, it requires counsel and pro se litigants to:

• Read pleadings, motions or other papers prior to signing them;
• Only file pleadings, motions or other papers that are well grounded in fact, warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and
• Not file pleadings for an improper purpose such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

In Leppelletier, the Fairfax Court noted that if there is a violation of the Code section, sanctions are mandatory (“Under the statute, a party shall be sanctioned for committing any violation”). A strict reading of Section 8.01-271.1 supports this view (“if a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion[] … an appropriate sanction[.]”) (emphasis added). In determining that sanctions were appropriate, the Court noted that the plaintiff in the case filed pleadings and made communications to opposing counsel which “were uncivil, unnecessarily discourteous, and riddled with ad homine[m] attacks.” The Court relied on Williams & Connolly, LLP v. People for Ethical Treatment of Animals, Inc., 273 Va. 498, 519 (2007) which holds “Contemptuous language and distorted representations in a pleading never serve a proper purpose and inherently render that pleading as one interposed for an improper purpose. … Such language and representations are wholly gratuitous and serve only to deride the court in an apparent effort to provoke a desired response.”

The Fairfax Court’s ruling in Leppelletier, and its reliance on Williams & Connolly, LLP, should be a reminder to parties and attorneys to conduct themselves in a professional manner. While a party may be upset about what led to the litigation and opposing counsel may not get along, the best practice is to remain calm. Because Courts view Code Section 8.01-271.1 to require mandatory sanctions, it would be wise to wait a day before firing off a response to a motion. It would be equally wise to have someone else read it before it is filed. Responding angrily may make you feel better, but it may also result it in you having to pay someone else’s legal fees. And while a litigant may want a tough guy in their corner, no litigant wants to have to write a check to the opposing party for thousands of dollars in legal fees.

1 Pro se: Someone who represents him or herself in a legal procedure without the aid of an attorney.