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When to Use a Novel Litigation Strategy

Sometimes justice is elusive. Statutes, regulations, and precedent, will not always line up exactly with an injury, harm, dispute, or with what just feels right. However, thanks to the way the justice system works, certain catchall-type causes of action can be applied in new ways. Unfortunately, most defense attorneys aren't just going to roll over.

Among the most commonly used catchall cause of action for novel claims is a wrongful termination in violation of public policy. This common law cause of action requires that a plaintiff have a public policy upon which their wrongful termination claim is based. However, the public policy is open to interpretation and can be based off statutes, regulations, contracts, policies, or even general societal norms. Similarly, statutes like 42 U.S.C. 1983 can be used to bring new claims alleging violations of a person's constitutional rights (although Bivens claims were recently limited).

Has Your Theory Been Tested in Other Courts?

A recent case filed in the California Courts in Southern California is a good example of an untested legal theory, but one with somewhat close analogues from the tobacco and asbestos industries. Two California counties, San Mateo and Marin, and one city, Imperial Beach, filed a lawsuit against the major oil producers in the country for the expected damages from global warming caused by their products.

The general theory of liability in this case is simple: when a company knowingly causes harms, they can be forced to pay for those harms and then some. However, what's novel about this lawsuit is that the harms are the effects of global warming and the causation of those harms are allegedly due to the oil producers' actions. Holding a company liable for damages caused by global warming has never been done before, but the proponents of the case believe it is akin to many of the mass toxic tort cases that have been successful in the past.

Acceptable Risks?

Deciding to file an unprecedented case is no simple task. First, finding a client willing to invest the money, or yourself being willing to invest the time unpaid, is a real challenge. However, even if the client is willing, deciding whether the risk is worth it requires careful business analysis. Even if you win, are you going to be able to fund appellate litigation? If you lose, will it harm your reputation? Is there even the remotest possibility of personal sanctions being assessed?

When it comes to filing a new type of wrongful termination claim, or toxic tort with presently visible damages, it's generally easier to decide as analogous cases provide more reliable guidance. However, when damages are speculative, or rely on science that is often politicized, the cost/benefit analysis becomes much more challenging.

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