In Atlanta this week, Georgia Governor Perdue made a surprise announcement that he will seek another round of tort reform  legislation, including a bill to stop "frivolous litigation."  I deplore  truly frivolous lawsuits  as much as the Governor does.

The language of the Governor’s proposal remains a closely guarded secret at this time. I look forward to reading it whenever it is released.

While safeguarding against frivolous suits that abuse the court system, it is also important to protect the right of access to the justice system for Georgia citizens who seek to uphold their legal rights.

Apparently there have been no objective studies quantifying a significant problem of frivolous lawsuits clogging the court system or burdening Georgia’s economy, which could be deterred by the proposed legislation. Without a clear picture of the extent of the problem to be solved, or how the proposed solution would actually work, lawmakers should be cautious.

A lot of the really frivolous lawsuits I hear about are filed by convicts and unstable unrepresented individuals. I don’t know how the threat of an attorney fees sanction, when those sanctions already exist, would deter such litigants.

As the proposed legislation has not been made public, it is unclear how it would improve upon Georgia’s four existing  "loser pays" statutes under which courts may now impose attorney fees and expenses upon parties who raise frivolous claims and defenses.  

O.C.G.A. § 9-11-68, passed in 2005, provides for an award of attorney fees, expenses against a party that refuses to accept a settlement offer, and at trial does not improve upon the rejected offer by at least 25%. The jury may also award damages against a party whose claim or defense was frivolous.

O.C.G.A. § 51-7-80 through 51-7-85, passed in 1989, provides liability for making a claim or defense in litigation that is made with malice or without substantial justification.  That includes claims and defenses that are frivolous, groundless in fact or law, or vexatious, unless the claim or defense is withdrawn within 30 days after a demand to do so.

O.C.G.A. § 9-15-14, passed in 1986, provides for a court to award attorney fees and expenses of litigation against any party that raises a claim or defense without substantial justification. This covers any "claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position."

O.C.G.A. § 13-6-11, which was included in the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

The last time I checked, the law of unintended consequences was still in effect.  I am eagerly waiting to see the Governor’s proposal, to see whether it adds anything constructive to the existing "loser pays" rules in Georgia, whether it solves a problem that needs solving, or whether it simply adds another layer of expense, complexity and delay to the litigation process.