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Pedlow v. Stamp9/12/1991
y's facts arguably did not support the claim. Here, defendant's argument that plaintiff's claim was frivolous is not based on the absence of supporting facts, but rather on the lack of a theoretical/legal justification for the claim. There are compelling reasons to allow the liberal assertion of new and different legal theories and claims based on them. The courts should welcome, not decry, proposed new directions in the law.
The complex conflicting interests of a diverse, rapidly growing, and changing society require that new legal ideas be readily assertible so that the law can appropriately reflect the experience and needs of the society. To close the door on new legal theories will isolate the courts from appropriately responding to the factors which bear on the pending issues. See R. Posner, Problems of Jurisprudence, (Harv. Univ. Press 1990); Oliver Wendell Holmes, The Common Law, (1881); O. W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
When initially proposed, many legal theories appear strange and unorthodox and thus not worthy of acceptance. Over time, in the marketplace of competing legal theories, many of these "strange and unorthodox" ideas have won acceptance and become the law. As the court stated in Eastway Construction Corp. v. City of New York, 637 F. Supp. 558 (E.D.N.Y. 1986), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987):
"Sometimes there are reasons to sue when one cannot win. Bad court decisions must be challenged if they are to be overruled, but the early challenges are certainly hopeless. The first attorney to challenge Plessy v. Ferguson was certainly bringing a frivolous action, but his efforts and the efforts of others eventually led to Brown v. Board of Education. "
By punishing the litigant through an adverse award of attorney fees, the courts may too readily slam the door on the litigant's right to espouse new ideas and to challenge improperly decided cases. Furthermore, in closing this door, we threaten the very source of ideas which is essential for enlightened decisions that reflect the needs of the society.
For these reasons, I would adopt an interpretation of ยง 13-17-101, et seq., that only permits the recovery of attorney fees for bringing frivolous claims when the claim is totally meritless and the attorney/party advocating the claim maliciously persists in pursuing it after he knew or should have known it was meritless. Furthermore, the court should review a losing request for attorney fees with an eye toward awarding fees against the requesting party if a proper basis for the request is not shown. See Ace Title Co. v. Casson Construction Co., 755 P.2d 457 (Colo. App. 1988).
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