Thursday, August 27, 2015

Slapping SLAPP abuses

Today the 6th District publishes an opinion in which the conclusion begs the Legislature to take steps to cut back on abusive use of the anti-SLAPP statute:  [See also Panel Rips Oracle for Delaying Trial Against HP]
The case thus provides yet another illustration of the many ways in which the current anti-SLAPP statute produces unintended and even perverse results. It can be argued that the overbreadth of the statute has made the cure worse than the disease. To be sure, the statute achieves its intended purpose in true SLAPP cases, i.e., patently meritless suits brought to punish and harass adversaries in the public arena. But if it makes short work of suits like that, it makes much longer and more expensive work of many suits bearing no resemblance whatever to the targeted paradigm. It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.
If HP’s claims are just, then it has been deprived of justice for two years. That deprivation cannot be defended by citing the avowed purposes of section 425.16, for this suit does not and never did implicate the interests at the heart of that statute, i.e., the right to take part in public affairs without suffering the oppression and expense of a meritless lawsuit intended to punish and deter the exercise of political rights. We can only join a chorus of other courts in pleading with the Legislature to examine the real-world effects of the statute on ordinary civil disputes and to seek a ways to reduce the overwhelming temptations it currently offers to engage in abuses at least as injurious as those it was designed to correct. 
In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.
In other perennial problems...
The National Law Journal reports Kagan: Law Schools Must Do More to Boost Student Writing Skills.
As for her own writing, "Kagan said, “I write so that a non-lawyer can understand it, but not any non-lawyer.” She said she did not want to “dumb down” the writing too much, so she has a “reader of The New Yorker, or something like that,” in mind when she writes." See the Bryan Garner interview of Justice Kagan here.