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• W225062510 abstract "I. INTRODUCTION The original is over, having been settled or disposed of by final judgment. One of the litigants is a sore loser who desperately wishes to sue the opposing parties, their attorney, or their expert. He may complain that a forged exhibit or perjured testimony was used against him, that he was libeled, or that his failure to prevail was caused by the other side's fraud or civil conspiracy. How may he litigate these complaints, and what principles may be applied by the Texas courts in adjudicating them? As will be seen, suits have been brought by unsuccessful plaintiffs as well as unsuccessful defendants. Typically, the suit will be brought after final disposition of the litigation, either at the trial court or appellate level. Often, the genesis of the suit is that the litigant feels that an adverse decision was not solely attributable to the merits of the controversy, but was instead the consequence of intentional misconduct, usually of someone associated with the other side. The contention is thus made that, but for the concealed evidence, perjured testimony, or other misconduct, the suit would have gone the other way, or other damages would have been avoided. False testimony knowingly presented and thought to be determinative of the outcome obviously does not sit well with a losing party when he learns how his defeat was accomplished. It is difficult enough for a losing litigant to accept defeat at the courthouse; it is almost impossible when the loss was occasioned by the fraudulent or criminal conduct of an adversary. II. SCOPE OF ARTICLE As used in this Article, the term retaliatory lawsuit is intended to denote those subsequent damage suits brought, usually after disposition of a prior suit, by one of the losing parties against the prevailing parties or their attorneys or witnesses. Because only subsequent suits will be considered, there will be no discussion of trial court sanctions for misconduct,1 which are imposed by the court hearing the proceeding in which the misconduct occurred. Presumably, the failure of a party to seek such sanctions in the first trial would not, in and of itself, prevent the later filing of a suit, and no case been found so holding. In many of the lawsuits surveyed in this Article, it appears that the conduct complained of did not occur or was not discovered until after disposition of the first suit. Thus, it could not have been made the basis of sanctions in that suit. A suit for malicious prosecution is certainly in nature, but no attempt is made here to analyze the availability of that cause of action. It is brought against an adversary for instituting a criminal prosecution or a civil suit maliciously and without probable cause,2 but requires that the suit must have been terminated in favor of the original defendant (now plaintiff). It is thus contrasted with the cases under review here, which are brought by losing parties. There are, of course, defenses to a other than the bar of the judicial proceedings privilege. This Article does not attempt to analyze or catalog those other defenses, among which are collateral estoppel3 and res judicata.4 This Article covers the basic nature of sore-loser lawsuits and analyzes the extent of protection afforded against them by Texas's judicial proceedings privilege. It also discusses who is protected by the privilege, under what circumstances the privilege is available, and the types of causes of action from which the privilege provides protection. III. CHRISTENING THE PRIVILEGE This privilege has been a part of Texas law for over 100 years.5 While the nature and extent of the privilege have been rather well explored in the decisions, the Texas courts have struggled to give it a name. Some courts, in basing their ruling on the privilege and clearly applying it as controlling, have refused to give it any name at all. …" @default.
• W225062510 created "2016-06-24" @default.
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• W225062510 date "2003-07-01" @default.
• W225062510 modified "2023-09-23" @default.
• W225062510 title "Retaliatory Lawsuits and Texas's Judicial Proceedings Privilege" @default.
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