Blawgletter hears and reads a lot about meritless lawsuits.  We wonder what the speakers and writers mean by that. 

Meritless, to us, implies something close to frivolous.  And frivolous treads on ground parlously close to, if not over the line of, sanctionable.

But let’s not go there today.  Let’s stick with meritless.

The word can’t signify only that the lawsuit-bringer loses.  Tons of stuff can bring defeat:  Lack of jurisdiction, suing too late, suing too early, sanctions for discovery abuse, failure to meet deadlines, estoppel, issue and claim preclusion, volenti non fit injuria, running out of money for fees and expenses, and a thousand other shocks that claims are heir to.

Nor does meritless imply a trouncing on the merits.  We have gobs of procedural hurdles that aim to balance our desire to correct wrongdoing against the risk of collateral consequences.  Fraud pleadings thus must allege deceit with particularity; after Twombly‘s horror of discovery, averments must (sometimes) meet a (vague) plausibility test; and certain types of claims have to satisfy a clear and convincing standard of proof.

So what does meritless mean?  Probably just this:  that the lawsuit, or its handling, failed any of the multivarious challenges that our system puts in its way.

Yesterday reminded us of how seldom a jury, instead of a judge, passes judgment on whether the lawsuit has merit.  The 13 federal courts of appeals published, by our count, eight opinions in regular civil cases.  One reversed denial of a motion to vacate a default judgment; another overturned a refusal to allow intervention; three upheld summary judgments; one affirmed a dismissal for failure to state a claim; and one okayed a judgment on the pleadings.

What happened in the eighth case?  It went to trial.  A jury rendered a verdict.  The district court entered judgment on it.  But then the court of appeals reversed and remanded for entry of judgment contrary to the verdict.

We guess that one was meritless, too.

Feedicon14x14 But how can we really know?  For now we see through a glass, darkly.