RESULT OF “YES” VOTE: “Yes” vote requires court, under specified circumstances, to sanction attorney filing frivolous civil pleading/motion by awarding opposing party attorney fees associated with frivolous filing.

RESULT OF “NO” VOTE: “No” vote retains current law which permits, but does not require, court to sanction frivolous civil pleadings/motions by awarding attorney fees to opposing party.

SUMMARY: Current law permits, but does not require, court to sanction attorney who makes filing in lawsuit containing frivolous legal or factual assertions. Court cannot grant sanctions motion if frivolous filing is amended/withdrawn within 21 days of service of motion. Measure changes current law by requiring court, under specified circumstances, to sanction attorney who files frivolous “legal claim, motion or defense” by awarding opposing party who establishes case for sanctions all attorney fees associated with frivolous filing. Court cannot impose sanctions unless attorney is notified, given 15 days to withdraw frivolous filing/withdraw from representation. Measure defines “frivolous” as unsupported by “substantial evidence” or “substantial reason.” Measure inapplicable to actions under ORS chapters 651-663, Title 51, specified actions by lawyers representing government. Other provisions.

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STATUTORY BALLOT MEASURE: MAKE LAWYERS PAY FOR LAWSUIT ABUSES

The People of Oregon hereby adopt the following to be added to ORS Chapter 33:

1. This Act shall be known as the Fight Lawsuit Abuse Act.

2. Any court may sanction an attorney, as provided in this Act, in any civil case, under the following circumstances:

a. The attorney files a frivolous legal claim, motion, or defense;
b. An opposing party notifies the attorney, in writing, that the claim, motion or defense is frivolous and is subject to sanctions under this statute;
c. Within 15 days of receipt of the above notification, the attorney has not withdrawn the claim, motion, or defense, or has not withdrawn from handling the matter;
d. The attorney does not ultimately prevail as to the claim, motion, or defense; and
e. The court determines that the claim, motion, or defense brought by the attorney was frivolous.

3. When an opposing party succeeds in establishing a case for sanctions under this Act, the opposing party shall be awarded recovery of all its attorney fees and costs as to the matter subject to sanctions.

4. For purposes of this Act, a claim, motion, or defense is frivolous when it is either not supported by substantial evidence or is not supported by substantial reasoning. An opposing party seeking sanctions needs only to establish one of these two factors. The terms “substantial evidence” and “substantial reasoning” have the same meaning as applied by Oregon appellate courts in reviewing administrative law cases relating to government agency decisions.

5. This Act does not apply to any claim, motion, or defense pursuant to ORS Chapters 651, 652, 653, 654, 655, 656, 657, 657A, 658, 659, 659A, 660, 661, 662, or 663. All labor and employment claims or legal actions under ORS Title 51 are excluded from the application of this Act. This Act does not apply to any administrative, enforcement, or prosecution action by any attorney acting on behalf of an instrumentality of government.

6. This Act is effective upon passage. It applies to all claims, motions, or defenses pending before passage of this Act, provided that the 15-day written notice required by Section 2.b. is delivered after the effective date of this Act. This Act also applies to all claims, motions, or defenses filed on or after the effective date of this Act. TALKING POINTS:

At present, the standard for finding that a claim or defense is “frivolous” is very weak and virtually unenforceable. This initiative sets a clear standard based on fairness and common sense.

Right now, it is the clients who suffer from frivolous lawsuits and defenses. This initiative makes the lawyers, themselves, pay when they bring a frivolous claim or defense.

Frivolous actions by lawyers clog up the legal system so there is delay for legitimate cases.

This initiative treats lawyers fairly because the lawyer has to be given a warning and the chance to drop the claim or defense before the lawyer is subject to penalties.

Society pays for a legal system overburdened with frivolous cases through increased insurance costs and product costs which are all passed on to consumers.