Update (January 24, 2018): Viking Forest Products, LLC v. Twin Mills Timber & Tie Company, Inc. is a nauseating case.
The allegations in the case were that Defendant Twin Mills Timber & Tie sold Viking Forest Products non-existent “crane mats” (used in the construction industry as stabilizing pads and bridging for the movement and operation of cranes and other construction equipment). Twin Mills allegedly accepted payment for crane mats from Viking and then failed to make them to the tune of $797,738.29.
This appears to be a classic zombie case, no genuine dispute but the case nevertheless lumbers on (pun intended). How much money should it take to Viking to obtain a judgment against Twin Mills? How much time?
The case started as an unopposed arbitration in the Spring of 2016. It took the rest of 2016 to get the arbitration award (which did not include any award for the claimant’s legal fees). The Pyhrrhic battle to get the arbitration award converted to a court judgment (through confirmation of the arbitration award and entry of judgment) has been pending in U.S. District Court (D. Minn.) for over a year now. It is on-going.
This is simply one more of thousands of lawsuits that reflect our broken legal system. Presumably, Viking has incurred over $100,000 in legal fees for, essentially, nothing to date (and who knows when it will get its hand on cash?). It is no wonder that lawyers are heavily criticized by many in our society who correctly suggest that too often the system does not work for anyone other than the lawyers.
We are at a loss as to how to address this massive failure. How about one simple adjustment: a more liberal use of fee-shifting when defendants needlessly and in bad faith prolong litigation? (See Singer, Jacob (2010) “Bad Faith Fee-Shifting in Federal Courts: What Conduct Qualifies?,” St. John’s Law Review: Vol. 84: Iss. 2, Article
4). Conduct sufficient to allow for “bad faith” fee-shifting should include when “action should have been unnecessary and was compelled by the party’s unreasonable, obdurate obstinacy.”
But you might reasonably ask: if a company is going to ignore an $800,000 debt, how will adding another couple hundred thousand dollars for the other side’s legal fees speed up resolution? This is a fair point.
How about apportioning some of the fees to be paid by the lawyer or law firm of the bad faith litigant? After all, most often it is the lawyers who embody and promote parties’ unreasonable, obdurate obstinacy, choking the legal system with reams of garbage.
Presumably, the bar would find any such broadened use of Rule 11 deeply objectionable. They would argue that it impedes their obligation to be zealous advocates for their clients. (Coincidentally, it would result in them making less money, of course.) Perhaps it would temper or cap the zeal without damaging its clear and important value to our adversarial system?
It seems that somehow the calculus must change to clear our legal system of zombie cases.