The so-called anti-SLAPP statute (CCP § 425.16) was enacted in California in 1992 and has been amended a number of times since then. There are over 350 published appellate decisions interpreting section 425.16 and several California Supreme Court decisions as well.
The average attorney does not encounter a SLAPP suit very often in his or practice. I have spoken to a number of attorneys practicing more than 20 years and most of them have minimal experience in this area of law.
Consequently, anti-SLAPP law can be a legal malpractice trap for the unwary attorney, which is why you need to hire an anti-SLAPP expert or someone with substantial experience in this area of law.
So here are some general issues to look out for in advising a potential or current client:
If you represent a potential plaintiff make sure to review the case with an eye for a potential anti-SLAPP motion. There are certain causes of action that are commonly subject to an anti-SLAPP motion, which you should be aware of. Be sure to advise the client (if applicable) that the complaint may be subject to attack via an anti-SLAPP motion and advise them of the potential consequences, i.e. mandatory attorneys’ fees in the event the defendant prevails and the limitation on discovery while the motion is pending. Bottom line, your client must be made aware of the potential risks in initiating such a lawsuit.
You also need to consider whether it is possible to draft the complaint in such a way as to avoid the application of the anti-SLAPP statute. If you could have easily drafted it to avoid an anti-SLAPP motion and you didn’t and the defendant is successful, you could be facing a lawsuit for malpractice.
I know some of this stuff seems obvious, but it can get tricky.
Let’s switch perspectives. If you’re a defense lawyer you need to consider your litigation strategy very carefully and here’s why: Suppose you decide to file a demurrer (before you file the anti-SLAPP) because you believe the claim is barred by the statute of limitations or the litigation privilege. And suppose the demurrer is sustained without leave to amend. Well, you’re the hero because you won, right? NO. Not necessarily. This is true because had you filed an anti-SLAPP motion the client would have been entitled to mandatory attorney fees. Your decision to file a demurrer may have cost the client thousands of dollars in attorney fees.
Take another example: Suppose you elect not to file an anti-SLAPP motion and prevail on a motion for summary judgment. Here, not only did you potentially deprive a client of his attorneys’ (assuming he would have won the anti-SLAPP motion) but it probably would have cost him a lot less money because discovery is stayed upon filing of the anti-SLAPP motion. It could go the other way as well. Suppose you lose the motion for summary judgment motion. Well, at that point you pretty much have to either settle or try the case, both of which may not be acceptable options for your client. However, had you filed the anti-SLAPP motion and lost, you’d still have an opportunity to appeal the decision before going any further.
Do you see how easy it might be to fall in anyone of the above traps? But, now you know so you’ll advise your clients accordingly.
If you liked this post please subscribe to get more updates about defamation law, anti-SLAPP law, and how to protect your reputation on the internet.