(anti-) SLAPP Back; Don’t Turn the Other Cheek

This anti-SLAPP blog post should be an item you keep on your litigation check-list in the event you are a defendant in a lawsuit. If anti-SLAPP applies, it can significantly short-circuit and give you an early-end to the litigation in your favor, stop costly discovery, and put you in a strong position to obtain attorneys’ fees and expenses of litigation from the person who sued you. “SLAPP” stands for “strategic litigation against public policy.”  A number of states, including Georgia, have anti-SLAPP laws that provide the above relief to defendants in certain situations.

Two days ago, June 24, 2019, the Georgia Supreme Court issued an opinion for the first time that deals with Georgia’s 2016 broad revision of its anti-SLAPP statutes under O.C.G.A. Section 9-11-11.1. The case is Wilkes & McHugh, et al. v. LTC Consulting, L.P. et al., No. S19A0146 (Ga. June 24, 2019). Click here for this opinion, which also has an excellent discussion by the Georgia Supreme Court setting forth the history and operation of Georgia’s anti-SLAPP statutes (and Georgia cases prior to the 2016 change in these statutes).

This is part one of three blog posts I will provide on this anti-SLAPP topic.

A 15-second short summary of anti-SLAPP is that if you are in litigation that enables you to file a defensive anti-SLAPP motion, the person suing you (the plaintiff) has to convince the court in response to your anti-SLAPP motion that the plaintiff’s lawsuit claims against you (his or her Complaint) are both (i) legally sufficient and (ii) supported by a sufficient prima facie showing of facts to sustain a favorable judgment in favor of the plaintiff.

Now, for a slightly longer introductory summary. Another substantial benefit of you filing an anti-SLAPP motion is that all discovery and pending hearings or motions in your lawsuit are stopped (“stayed” in lawyer jargon).  And, the court generally is required to conduct a hearing on your anti-SLAPP motion within 30 days after you file it.

The above June 24 Georgia Supreme Court opinion, in its opening paragraph, states the 2016 revision of the Georgia anti-SLAPP statutes substantially mirrors California’s anti-SLAPP statutes. Wilkes & McHugh at 1.  In expressly acknowledging that California has developed a considerable body of case law interpreting its anti-SLAPP statutes, the Georgia Supreme Court states that it may look to California case law for interpreting the Georgia anti-SLAPP statutes.  Id. at 15.  [I have experience with the California anti-SLAPP statutes and their litigation application.]

For this first blog post on Georgia’s anti-SLAPP statutes, I purposely do not get into the weeds on the details as to what these laws are and how they apply procedurally in litigation. However, a threshold point in any potential anti-SLAPP situation is to determine whether you, as a defendant, can take advantage of these favorable provisions. The general rule, and I state this broadly, is that the lawsuit you are facing must involve the plaintiff’s claims against you that arise from facts or actions stemming from your constitutional right of “free speech” or “petition”.  I will address these two elements in my next blog post.

My other key take-away points here are:

  • The above two free-speech / petition categories as to when you might be able to get the benefit of anti-SLAPP are much broader than one might initially think. Existing California case law is replete with numerous issues that fall within these favorable anti-SLAPP free speech and petition requirements; and
  • The California courts have effectively seen-through efforts by plaintiffs who, with artful drafting of a plaintiff’s Complaint, attempt to evade the reach of anti-SLAPP provisions by including mixed, unprotected non-SLAPP assertions in their Complaint to try and derail an anti-SLAPP challenge. See, for example, Baral v. Schnitt, 1 Cal. 5th 376 (2016).  I assume this drafting scrutiny will be an important focus the Georgia Supreme Court will follow as more of these anti-SLAPP cases make their way through the Georgia courts.

50/50 Jury Risk. Preventing Litigation is Crucial.

I just finished a complex fraudulent-transfer litigation case that focused a great deal of contentious light on some earlier estate tax planning. The tax planning involved an estate-freeze/ sale of an LLC interest to an (income-tax  defective) Nevada trust.  I purposely make no comment here about this particular case, other than it prompts me again to remind readers of the crucial importance of preventive planning to help avoid litigation.

The competitive challenge of litigation and controversy work fuels my enjoyment of lawyering. But, for all my clients I harp constantly on preventive planning to avoid getting into litigation.  Litigation is nothing short of time-consuming war, with the odds of winning sometimes a crap shoot if the matter goes to a jury.

Individuals, who scoff at this preventive advice, with comments such as “I don’t care, let them sue me. They don’t have a case”.  Or, “We will just file a lawsuit and see what happens”, likely set themselves up for costly failure.

A wonderful late friend of mine, who was a federal district court magistrate judge, told me many years ago:  “During the 27 years I was on the bench, I never saw a case someone couldn’t lose.”

Below is my general observation about juries for this blog post.

At the end of a trial, the jury deliberates and makes conclusions about what the jury believes are the accurate, credible facts the jurors observed during the trial.  Also at the end of the trial the judge reads the applicable law to the jury, on the notion the jury during its deliberation will apply the jury’s perception of the facts to the law.  This is often called “the law of the case”.

The jury then renders its verdict essentially by the jury deciding during the jury closed-door deliberations how it will combine the facts with the law of the case.

The judge’s reading of the law to the jurors is referred to as “jury instructions”.  Prior to the judge reading these instructions to the jury, the opposing lawyers try and convince the judge to use each lawyer’s own respective written blurb or summary for each point of the relevant law.  This is called a “jury charge conference” or “jury instruction conference”.   The conference takes place among the judge and opposing lawyers without the jury being present.

Now, here is an important jury point to ponder in the context of this blog post.

If you believe you have the weaker merits in a case (for example, less than 50%), you generally will try and keep your litigation case alive with a persistent move toward getting your case in front of the jury.

This weaker-merit posture involves you primarily crafting your lawsuit allegations and discovery, etc., in a way where the issues cannot be concluded with a pre-trial motion for summary judgment or motion to dismiss, etc.

Pre-trial motions are used extensively by litigation parties to try and convince the judge there are no materially disputed facts that warrant having the case continue on to a jury.  Essentially, the pre-trial effort is an attempt to end the case before the jury factor arises.

This pre-trial motion approach, in general terms, means the judge may possibly decide and conclude the case without the case having to go before a jury.  This also means, if the circumstances support a pre-trial conclusion, the judge addresses (not the jury) what and how the facts apply to the law.

Again, the weaker party tries to stall and derail this pre-trial effort.

On the other hand, if you believe you have the stronger merits in a case (more than 50%), you generally will try your best to get the case concluded with the pre-trial approach without the case going to a jury.   By using the above pre-trial motions, such as motions for summary judgment, motions to dismiss, etc., or a combination of pre-trial motions.

Now, why do I refer to 50/50 juries?

My view is that most jury trials even the parties’ odds to 50/50.   A jury, for example, may simply not like one of the parties.  Or, the law that applies to the case (the jury instructions) might involve such a complex array of laws that the jury simply makes ad hoc conclusions in reaching their verdict without the ability to apply the law accurately.

So, if you believe you have 90% of the merits in a case, your odds before a jury drop from 90% to 50%.  If you believe you have a 20% case, your odds essentially increase to 50%.

Preventive planning.  Crucial.

This Book Passage Stopped Me in My Tracks.

The post continues my repeated theme:  That is, we all need to prioritize and value our finite time as an opportunity to enjoy life.  We ideally should expend as little time as possible on time-consuming (and financially costly) disputes, problems, difficulties.  Or, essentially we should prevent death by a thousand paper cuts.

My passion in lawyering is helping clients smooth the sharp edges and corners of life (with preventive planning, and if necessary, aggressive, strategic challenges to resolve disputes, litigation, etc.).  All this lawyering directed at giving my clients simply more time to enjoy life.

As an aside, the following excerpt from the novel Middlemarch, by George Eliot, stopped me in my tracks as one of the most succinct and powerful observations I have read in quite some time on this notion of our finite time and enjoyment of life:

 “…it is in these acts called trivialities that the seeds of joy are forever wasted until men and women look round with haggard faces at the devastation their own waste has made and say the earth bears no harvest of sweetness—calling their denial knowledge.”

from Middlemarch, George Eliot

Click here for my earlier post on how strongly I am impressed with Middlemarch.