Law school typically ignores the practicalities of being a lawyer, operating instead in a land where all clients pay promptly and are hassle-free. But the messy, sloppy nature of the real world means a legal system rich in idiosyncrasies. First up? Vexatious Litigants.

A Vexatious Litigant (as defined in Cal. Code of Civil Procedure § 391 et seq.) is a pro se plaintiff who has

(a) in the preceding five years, "commenced, prosecuted, or maintained" five or more litigations in which the plaintiff has either lost or unreasonably delayed for more than two years (not including small claims), OR

(b) without counsel “repeatedly relitigates or attempts to relitigate the validity of the determination against the same defendant[s]… or the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined," OR

(c) without counsel “ repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay," OR

(d) has been previously determined to be a vexatious litigant by any other state or federal court based "upon the same or substantially similar facts, transaction, or occurrence."

It is important to note that (c) above can result in vexatious status within a single suit based on conduct in that suit. Even someone litigating pro se for the very first time needs to keep (c) in mind (as well as the defendant's lawyers!).

Lawyers cannot be considered Vexatious Litigants (although always keep in mind that lawyers face sanctions for frivolously using (abusing) the legal system) and a Vexatious Litigant need only hire an attorney to avoid the title. Yep. The Vexatious Litigant only applies to unrepresented parties (i.e., pro se, or in propria persona) and once they realise that the court is tired of their antics, they can lawyer up. That being said, a lawyer who represents himself (or herself) pro se may find themselves subject to the statute (and sanctions).

Just because a plaintiff is "vexatious" does not mean that they no longer get to enjoy days in court alone, against the world. Does a bright red V mean that someone is no longer allowed to sue? Not quite. Sec. 391.1 requires security to be put up by the plaintiff if they are determined to be vexatious and their suit has no "reasonable probability" of success. However, the opposing party can require that the plaintiffs be made unable to file any additional suits in California without judicial permission. Contrast this with the common requirement in Germany that a security be offered by the losing side prior to an appeal, and the fact that some German courts do not give leave to appeal their verdict, leaving the losing side subject to obtaining judicial permission before proceeding with an appeal. And all of this even for the non-vexatious.

California maintains a list of vexatious litigants online here. As of Jun 2014, there are over 1,950 litigants on the list (although some are aliases, not unsurprising). Some have even been on the list since the early 1990s.

Despite the statute’s chilling effect, the California Court of Appeal (4th District) has ruled the statute to be constitutional. The central issue in Moran v. Murtaugh Miller Meyer & Nelson, LLP (126 Cal.App.4th 323 (January 31, 2005)) was whether or not an employer that investigates an employee’s wrongdoing must disclose to the employee copies of any public records obtained as part of the investigation within a reasonable time following the conclusion of the investigation. However, the court of appeals in Moran also address the constitutionality of the Vexatious Litigant and dismissed the plaintiff's claims that (i) weighing the evidence as necessary to determine the probability of success denies the vexatious litigant the right to jury trial under the California Constitution (Art. 1, Sec. 16) and (ii) that plaintiffs of “modest means” are unfairly disadvantaged. Moran, on a side note, was represented by counsel.

For more detail on this topic, see Michael C. Denison's (Towle, Denison, Smith & Tavera) more detailed write up on this topic available here.