ALL LITIGATION INFLICTS INJURY. This is not just a question of cost. It is also a question of injury to reputation, emotional distress, restrictions on personal freedom, and other dignitary insults. A simple hypothetical case can both demonstrate the truth of this statement and provide some estimate of the frequency and severity of litigation injury. All that is needed is to assume there is no litigation privilege, and then to identify the torts that the participants would appear to have committed.

"Litigation privilege" is the privilege that normally protects lawyers, judges, and even witnesses from tort liability for statements made and actions taken during litigation. With respect to defamation, § 586 of the Restatement (Second) of Torts says an "attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel." Courts have extended the privilege to prevent actions for intentional interference with contract, intentional infliction of emotional distress, and sometimes even fraud.1 An even stronger immunity protects judges from tort suits for acts taken in connection with their official duties.2 And witnesses generally enjoy tort immunity, even if they commit perjury.3

The privilege enables those protected by it to perform their roles in the adversary system without fear of personal liability. For the attorney, it means that the attorney can advance the client's interest without fearing for his own. The lawyer's undivided loyalty to the client enhances the client's ability to be fully and effectively heard by the court. Other remedies, such as bar discipline or criminal prosecution, are thought sufficient to deter misconduct.4

But the privilege imposes a social cost. One way to measure that cost is by the law's own standards, i.e., to look at a hypothetical case to see what conduct, absent privilege, would appear to be an actionable tort. The injury is the same, after all, even if privilege prevents it from being compensable.

To eliminate assertions that the author has stacked the deck, everything in the following hypothetical would be protected by privilege. In it the reader will find no abuse of process, no ethical violation, and not even any sanctionable misconduct by parties or counsel. Nor is the reader asked to think creatively, as those who would apply product liability law to legal briefs and test them for design defects might be tempted to do.

Rather, the assigned task is simply to assume away litigation privilege and examine ordinary litigation conduct to see to what extent it requires conduct that might otherwise be an actionable tort in some state. The format is that of a torts examination. Readers are invited to spot the issues, which are discussed in the footnotes.

Footnotes

1 Simms v. Seaman, 69 A.3d 880 (Conn. 2013) (discussing history of privilege); Cantey Hanger LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015); T. Leigh Anenson, Absolute Immunity from Civil Liability: Lesson for Litigation Lawyers, 31 Pepp. L. Rev. 915 (2004).

2 Stump v. Sparkman, 435 U.S. 349, 355-65 (1978).

3 Crain v. Unauthorized Practice of Law Comm. of the Sup. Ct. of Tex., 11 S.W.3d 328, 335-36 (Tex. App. 2000) ("Any communication, even perjured testimony, made in the course of a judicial proceeding, cannot serve as a basis for a suit in tort.").

4 See Simms, 69 A.3d 880; L. Munford, The Peacemaker Test: Designing Legal Rights to Reduce Legal Warfare, 12 Harv. Nego. L. Rev. 377 (2007); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 57, cmt. b (2000).

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