Robbins: Explaining barratry and champery
You know the type.
The kind that has a burr in his saddle, a thistle in his hiking socks, a gripe in his heart, who won’t take yes for an answer.
That’s the one.
Well, not in sweet home, Colorado — not yet anyway, but there’s an “app” for that. What we do have, though, are SLAPP laws.
Barratry, from Old French barat (“deceit” or “trickery”), is a legal term that, at common law, describes a criminal offense committed by one who is overbearing in instigating or encouraging prosecution of groundless litigation or who brings repeated or persistent acts of litigation for the purposes of profit or harassment.
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Yeah, that guy.
Although it remains a crime in some jurisdictions, barratry has frequently been abolished as being outdated, punitive, and obsolete.
If barratrous litigation is deemed to be for the purpose of silencing critics, it is known as a strategic lawsuit against public participation (SLAPP). Jurisdictions that otherwise have no barratry laws, the Centennial State proudly among them, may have SLAPP laws.
As part of their tort reform efforts, several U.S. jurisdictions have enacted barratry laws, declaring frivolous or harassing litigation to be a crime. In the states of California, Oklahoma, Virginia, and Washington, for example, barratry is a misdemeanor. In Texas, where everything is bigger, barratry is a misdemeanor for the first conviction, but a felony for subsequent offenses.
Many years ago, I had a case between a landlord and a tenant that centered on a very high-end residence. The tenant had rented the frou-frou digs for many years without an issue, mailing the rent checks to the landlord like clockwork every month. Then, suddenly, like a clogged drain, the rent checks stopped. When the landlord growled about it, threatening to oust them, instead of anteing up, the tenant sued him, alleging, among other things, that the landlord — a man in his 80s and who lived a few hundred miles away, had chased the “lady” of the house, who was in her spry, brisk-legged 30s, about the premises and tried to sexually assault her.
Preparing for the case, we learned that this was not the first time that this lady had brought suit against another. In fact, over the five years immediately preceding our matter, she had brought suit for this or that or the other an astounding 35 times. Even as a long-time litigator, only very rarely do I average seven trials a year. She was, I told my client, a litigation hobbyist.
She was not the first or last I’ve seen. Oh, to be in Texas!
What then of champerty?
The geologically astute among you may be thinking, “Yeah, yeah. I’ve heard of that.” Maybe, almost, the town of Chambéry, landing similarly on the ear. Chambéry, not champerty, is an Eagle-County-sized town in the southeastern Auvergne-Rhône-Alpes region of France. I understand that it is beautiful. But other than the resonance of its name with our topic, it has not a wit to do with law.
Champerty (often paired as “champerty and maintenance”), on the other hand, is a kissin’ cousin of barratry. Champerty is another common law doctrine that takes aim at frivolous litigation with the laudable goal of precluding it. “Maintenance” may be thought of the intermeddling of a disinterested party to encourage a lawsuit while “champerty” (from the old French “champart“) is the financial support, by a party not naturally concerned in the suit, of a plaintiff that allows them to prosecute a lawsuit on condition that, if it be brought to a successful conclusion, the plaintiff will repay them with a share of the proceeds from the suit. Think of it as loansharking for litigation.
In a 1993 United Kingdom House of Lords decision, Lord Justice Steyn declared, “In modern idiom, maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds.”
As was barratry, at common law, maintenance and champerty were both torts and crimes. Although generally no longer the case, one can rhapsodize wistfully about the good old days. However, the principles remain relevant to modern contingent fee agreements between a lawyer and a client and to the assignment by a plaintiff of his or her rights in a lawsuit to someone with no connection to the case. Champertous contracts, such as third-party litigation funding agreements, can still, depending on jurisdiction, be void for reasons of public policy. So the jealous gene of maintenance and champerty, in a sense, live on.
For the most part, barratry, champerty, and maintenance are oldy-moldies and yet the problems of vexatious litigation and abuse of judicial process continue to live on. For the most part, modernly, such abuse is dealt with by sanctioning the abusing party and/or his or her attorney, often with responsibility of reimbursing the opposing party for his or her attorney fees for having been dragged into a meritless legal brouhaha. And, yeah, there are modern “apps” for that.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
