Reader’s Brilliant Addendum to “My (Mis)Use of Litigation Article” – New Fancypants Word
Blog No 137
December 14, 2021
READING TIME: 8 Minutes
By Mack W. Borgen
Author, The Writings of a Lifetime (2021); Dead Serious and Lighthearted – The Memorable Words of Modern America (Three Volumes) (2018-2019); and The Relevance of Reason – The Hard Facts and Real Data about the State of Current America (2 Volumes) (2013). As Advertised in The New York Review of Books and Recipient of Eight National Book Awards
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A Reader’s Brilliant Addendum Comment To My Blog Article
“The (Mis)Use of Litigation
and
The Heightened Needs for Contract Precision and Inclusion of ‘Boilerplate Terms’ ”
Last week, I posted my blog article (Blog 136) entitled “The (Mis)Use of Litigation and the Heightened Needs for Contract Precision and Inclusion of ‘Boilerplate Terms’.” One of my readers brilliantly pointed out that there was another relevant matter which contributes greatly to the over-abundance of litigation – the “thicket of substantive and procedural laws” which are so complex that they have “a net effect of incentivizing litigation.”
The sheer volume, complexity and even inconsistency of these laws and case precedents – and the sometimes wild-card involvement and rulings of the presiding judge — create a sense of unpredictability with respect to the outcome of any litigation. This unpredictability can make it nearly impossible for any party, even the “innocent” or “right” party, to be assured of any outcome. Sadly and conversely, this same unpredictability can de facto encourage parties to roll the dice and file lawsuits even if they are “guilty” or “wrong” with respect to the subject dispute.
Very bluntly, it would be an overwhelmingly challenging task, but the simplification and enhanced consistency of our laws could diminish thousands of let-the-dice-roll filings which wrongly subject “innocent” parties to the cost and burdens of litigation. I have written before that it would also be useful for courts to more aggressively punish “vexatious” litigants who day-after-day and week-after-week file lawsuits with respect to every perceived wrong. I would go even further. Although I am in the minority amongst my fellow attorneys on this matter, I believe that attorneys and law firms which repeatedly file spurious claims should be identified and heavily fined so that they too share in the cost burden of requiring our courts to adjudicate their endless filings of what are oftentimes baseless or wildly exaggerated claims.
In all events, my thanks to my great reader who encouraged me to note the additional issue of the volume, complexity, and even inconsistency amongst ours too-many laws as another reason for the too frequent and costly (mis)use of the litigation process as a means of resolving contractual disagreements or as a means of bullying negotiation and coercion.
And, Now, On a Slightly Lighter, End-of-the-Year Note
Fancypants Word of the Day
Ensurient (Adjective): 1) Hungry, 2) Greedy.
Examples of uses in sentences:
Serious Example: “He skipped breakfast, so by lunch he was positively ensurient.”
More Humorous Example: “Think how Michael Douglas’ famous “greed-is-good” line from the 1986 film Wall Street would have been long forgotten if he had stated that “To be ensurient is good.” I am sure that we are all happy that the script editors were not too ensurient to use the word “ensurient.”
O.K. That’s Enough for 2021.
My Best Wishes and Happy New Year to All!
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