This is probably a wise comment. If all losing parties sued winners' lawyers, lawsuits would be eternal, no one would want to be a lawyer, and law schools would close their doors. The California trial judge ruled that the privilege applies to statements, but not to silence. On writ of mandate, the appellate court reversed. The Sounds of Silence Appellate judges faced the issue of whether concealment by silence, without accompanying statements, qualifies for immunity under the litigation privilege.
Silence can signify nothing, or it can communicate a good deal, all depending on context.
This is the principle that a plaintiff may not take advantage of a defendant's legal disability to obtain a judgment without a fair adversary hearing. A plaintiff who is aware of a defendant's mental incapacity or some other factor preventing the defendant from participating in a legal proceeding is duty-bound to inform the court of this fact. This sort of conduct, said the judges, is fraud extrinsic to, or outside, the judgment. Such fraud allows the court to set aside the judgment. He seeks to establish defendants' liability in tort for their breach of this duty of disclosure.