A bad faith argument is a position someone advances while knowing it is misleading, unsupported, or beside the point, used to gain an advantage rather than to resolve the actual disagreement. The conduct is considered more culpable than ordinary carelessness because the person was never trying to be right in the first place.1LII / Legal Information Institute. Mala Fides An honest mistake can be corrected with better information. A bad faith argument resists correction, because correction was never the point. You see it in courtrooms, contract fights, insurance disputes, and anywhere one side can profit from wasting the other side’s time.
The dividing line is sincerity. In a genuine dispute, both sides share at least one goal: figuring out who is right or reaching a fair compromise. A bad faith participant has no interest in either. They might perform the motions of engagement, asking questions, requesting documents, appearing to deliberate, while the real objective is to protect a financial position or drain the other side’s willingness to fight. That is what turns a disagreement into a trap. You end up arguing against a position the other side does not actually hold, and no amount of evidence will move them.
This principle has legal weight. Most courts recognize an implied covenant of good faith and fair dealing in every contract, requiring parties to carry out the agreement as intended rather than using technicalities to undercut it.2LII / Legal Information Institute. Implied Covenant of Good Faith and Fair Dealing The Uniform Commercial Code imposes the same duty on commercial transactions.3LII / Legal Information Institute. UCC 1-304 Obligation of Good Faith When someone uses bad faith arguments to escape contractual obligations, they are not just being difficult. They may be breaching a legal duty.
Bad Faith, Honest Mistakes, and Frivolous Claims
Not every bad argument is made in bad faith. People make logical errors all the time: circular reasoning, misread data, correlation mistaken for causation. These happen in good faith when the speaker genuinely believes the reasoning is sound. Point out the flaw, and most people adjust.
Bad faith operates on a different level, because the arguer already knows the point is weak. Correct it, and they do not reconsider. They pivot to a new attack. That persistence after being shown the flaw is often the clearest signal.
A related but distinct concept is the frivolous claim, which courts define as a lawsuit, motion, or appeal that lacks any arguable basis in law or fact.4LII / Legal Information Institute. Frivolous The two overlap but are not identical. A frivolous claim might come from someone who sincerely misunderstands the law. A bad faith argument always involves deliberate deception. Courts apply different remedies and standards of proof depending on which problem they are addressing.
Common Bad Faith Tactics
Moving the Goalposts
The requirements for proof keep shifting after each one is met. You provide the medical records the other side requested, and suddenly they need a specialized expert report that was never previously mentioned. You submit the expert report, and now they want a second opinion. The pattern is the tell: no single piece of evidence is ever enough, because the goal is not verification. It is exhaustion. This shows up constantly in insurance disputes and settlement negotiations, where the party moving the goalposts hopes you will eventually give up or accept a lowball offer.
Sealioning
Sealioning is harassment dressed as polite inquiry. The bad faith actor bombards you with endless requests for evidence, citations, and explanations, all while maintaining an air of reasonable curiosity. Each question seems fair on its own. The volume and repetition give away the purpose: to exhaust your patience and make continued engagement feel pointless. In litigation, this takes the form of discovery abuse, where a party files massive volumes of interrogatories or document requests with little relevance to the actual dispute.
The Gish Gallop
Named after a debater who pioneered the technique, the Gish gallop floods a discussion with as many arguments as possible without regard for whether any of them are accurate or well-supported. The sheer quantity makes it impossible to respond to every point in real time, and the person deploying the tactic claims victory based on whatever went unanswered. In legal settings, this looks like a brief that raises fifteen weak arguments instead of developing two strong ones. The strategy bets that at least one weak argument will slip through.
Proving Someone Argued in Bad Faith
The hardest part of any bad faith claim is proving what was going on inside someone’s head. Courts do not have mind-reading technology, so they rely on patterns of behavior and circumstantial evidence. A single questionable argument might be an honest mistake. When the same party repeatedly delays proceedings, takes contradictory positions, or asserts facts they demonstrably know to be false, the pattern itself becomes evidence. If a defendant swears they never saw a document they personally signed, the physical record does the work.
The standard of proof varies by jurisdiction. Some states require clear and convincing evidence, which the Supreme Court has described as evidence that is “highly and substantially more likely to be true than untrue.”5LII / Legal Information Institute. Clear and Convincing Evidence Others apply the lower preponderance of the evidence standard used in most civil cases, meaning the conduct just has to be more likely than not. The split matters. Where clear and convincing evidence is required, you need a stronger factual record to prevail, which is why early and thorough documentation is essential.
Legal Consequences in Court
Courts have multiple tools to punish bad faith conduct during litigation, and the penalties can hit both the party and their attorney personally.
Rule 11 Sanctions
Every time an attorney or unrepresented party files a document with a federal court, they are certifying that it is not being presented for an improper purpose such as harassment, delay, or needlessly driving up costs. When that certification is violated, the court can impose sanctions on the attorney, the firm, or the party responsible. The sanctions must be limited to what is needed to deter the conduct from happening again, but the options include monetary penalties paid into court and orders requiring payment of the opposing party’s attorney’s fees.6Legal Information Institute (LII) / Cornell Law School. Rule 11 Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions A party served with a sanctions motion gets 21 days to withdraw or correct the filing before the motion lands with the court.
Personal Liability Under 28 U.S.C. 1927
Federal law provides a separate basis for holding lawyers personally accountable. Under 28 U.S.C. ยง 1927, any attorney who unreasonably and vexatiously multiplies court proceedings can be required to personally pay the excess costs, expenses, and attorney’s fees their conduct caused.7Office of the Law Revision Counsel. 28 USC 1927 – Counsels Liability for Excessive Costs The statute targets the lawyer, not the client, and the focus is on whether the overall pattern of conduct stretched the litigation beyond what was reasonable.
The Court’s Inherent Authority
Even when no specific rule covers the misconduct, federal courts possess inherent authority to sanction bad faith litigation conduct. The Supreme Court confirmed this in Chambers v. NASCO, Inc., upholding a sanction of nearly $1 million that represented the opposing party’s entire litigation costs. Because much of the bad faith conduct occurred outside the courtroom and was not covered by Rule 11 or any other procedural rule, only the court’s inherent power could reach it.8LII / Legal Information Institute. Chambers v NASCO Inc 501 US 32 (1991) One important limit: fee awards under this inherent authority are compensatory, not punitive. The court must establish a causal link between the bad faith conduct and the legal fees the other side actually incurred.9Legal Information Institute (LII) / Cornell Law School. Inherent Powers over Contempt and Sanctions
Discovery Sanctions
Bad faith in discovery has its own consequences under Federal Rule of Civil Procedure 37. When a party fails to cooperate with legitimate discovery requests, or when their responses are evasive and incomplete, the court treats that conduct as a failure to respond at all. If the court grants a motion to compel, the party or attorney whose obstruction forced the motion must pay the other side’s reasonable expenses, including attorney’s fees.10LII / Legal Information Institute. Rule 37 Failure to Make Disclosures or to Cooperate in Discovery For repeated or egregious violations, the penalties escalate to striking pleadings, barring evidence, or entering default judgment.
Bad Faith in Insurance Disputes
Insurance is where most people encounter bad faith in their own lives, and the stakes are often enormous. Because insurance policies create a special relationship between insurer and policyholder, courts hold insurers to a heightened duty of good faith. When an insurer uses bad faith tactics to avoid paying a legitimate claim, the policyholder may have grounds for a separate lawsuit beyond the original policy dispute.
Proving insurance bad faith generally requires two things: that benefits owed under the policy were withheld, and that the reason for withholding them was unreasonable. Reasonableness is evaluated objectively based on the facts that existed when the insurer made its decision. Common forms of insurer bad faith include misrepresenting policy terms, failing to acknowledge or investigate a claim promptly, and denying coverage without providing a reasonable explanation.
The remedies go well beyond the unpaid claim amount. Punitive damages are available in roughly 38 states, though they typically require proof of malice, fraud, or reckless disregard for the policyholder’s rights. Some states cap punitive awards at a specific multiplier of compensatory damages; others leave the amount to the jury. The availability of punitive damages is what gives insurance bad faith claims real teeth. Without that risk, an insurer acting in bad faith would face no penalty worse than eventually paying the amount it already owed.
How to Counter Bad Faith Arguments
The single most important thing you can do is document everything in writing. Every demand, every response, every shifted goalpost. If the other side asks for medical records by phone, follow up with an email confirming exactly what was requested and when you provided it. When they change the requirements, you will have a paper trail showing the pattern. Courts rely heavily on this kind of evidence when evaluating bad faith claims. Without it, a bad faith allegation often comes down to your word against theirs.
In litigation, the procedural tools match the problem. If the opposing party is abusing discovery with excessive or irrelevant requests, you can seek a protective order under Federal Rule of Civil Procedure 26(c), which allows a court to shield you from discovery that amounts to annoyance, oppression, or undue burden.11Federal Judicial Center. Confidential Discovery – A Pocket Guide on Protective Orders Before filing, you have to certify that you tried to resolve the dispute with the other side first. The motion needs to demonstrate specific harm, not just general inconvenience.
Outside of court, the most effective counter is refusing to play the game on the other side’s terms. When someone moves the goalposts, name the pattern rather than chasing the new standard. When someone sealions you with endless questions, set a boundary on what you will respond to and hold it. Bad faith tactics work by exploiting your good faith participation. Recognizing them early, and declining to treat them as sincere, is often the fastest way to shift the dynamic or force the other side to engage honestly.