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The Disparate Impact of Rule 11 Sanctions in the Litigation Process Alan J

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The Disparate Impact of Rule 11 Sanctions in the Litigation Process Alan J University of Baltimore Law Forum Volume 22 Article 2 Number 3 Spring, 1992 1992 Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process Alan J. Belsky Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Belsky, Alan J. (1992) "Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process," University of Baltimore Law Forum: Vol. 22 : No. 3 , Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss3/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process By Alan J. Belsky, Esquire I. INTRODUCTION order to deny or postpone the signature on any court paper certifies Attorneys are trained to represent enforcement of unquestioned that the signer their clients to the greatest extent of rights. Lawyers have an obli­ has read the pleading, motion, their abilities within the bounds of the gation as officers of the court or other paper; that to the best law and legal ethics. Developments not to indulge in any of these of the signer's knowledge, in­ over the past several years, however, practices. Vexatious litiga­ formation, and belief formed have caused courts to scrutinize more tion and the law's delays have after reasonable inquiry it is closely the conduct of attorneys and to brought the courts in low re­ well grounded in fact and is distinguish zealous from "frivolous") pute in many instances, and warranted by existing law or a legal representation. when the responsibility can be good faith argument for the The number of lawsuits has in­ fixed, remedial action should extension, modification, or creased dramatically in the past twenty betaken. reversal of existing law, and years. 2 This increase in litigation, how­ Members of the legal community that it is not interposed for any ever, has not come without cost to all have expressed concern about the improper purpose, such as to involved. Attorneys are finding it more present state ofaffairs in the litigation harass or to cause unnecessary difficult to maintain control over their process. Unfortunately, their dissatis­ delay or needless increase in practice, and courts are increasingly faction for the most part has been di­ the cost of litigation.4 unable to manage their dockets. Con­ rected at one another and not at the In essence, Rule 11 requires "litigants sequently, litigants are disheartened problem in toto. The plaintiffs' bar is to stop, think and investigate more by the time and expense involved in criticized for bringing lawsuits with­ carefully before serving and filing resolving even the most rudimentary out sufficient factual or legal ground to papers ...."5 issues. support their claims. The defense bar, The Advisory Committee on Civil Pleadings, motions, pretrial discov­ on the other hand, is criticized for Rules - the drafters ofthe 1983 amend­ ery, and costly and lengthy litigation burdening the litigation process by gen­ ments to Rule 11 -- envisioned that have inundated the bench and barto the erating unnecessary pleadings and amended Rule 11 would curtail the so­ point of calling into question whether motions filed only to buy additional called "litigation explosion"by requir­ the litigation process has grown be­ time for their clients, or to make law­ ingthat courts impose sanctions when­ yond manageable bounds. The prob­ suits so expensive that they must be ever Rule 11 was violated. By requir­ lem is aptly described by the United abandoned out of economic necessity. ing imposition of Rule 11 sanctions, States Court of Appeals for the Fourth Ironically, the typical climax to this the Committee sought to limit judicial Circuit in Gullo v. HirsP: costly and burdensome litigation pro­ discretion in finding violations of the While we must be careful to cess is a settlement reached on the rule, which, in turn, would promote assure that courts are always courthouse steps. more consistent and predictable appli­ open to complaining parties, Rule 11 of the Federal Rules of cation of the rule. Unfortunately, the we have an equal obligation to Civil Procedure was amended in 1983 ambiguities of amended Rule 11 have see that its processes are not in an effort to increase lawyers' re­ promoted rather than discouraged ju­ abused by harassing, or by sponsibility to their clients and to the dicial discretion, and have added to the recklessly invoking court ac­ courts when filing any pleading, mo­ litigation explosion by generating thou­ tion in frivolous causes or by tion, or other paper. Amended Rule 11 sands of conflicting court opinions on foot dragging and delaying in provides that the attorney or party's the meaning and application ofRule 11 22.3lfhe Law Forum - 3 to particular conduct. tax disputes - cases which typically advisory committee notes. 2S This Article addresses the opera­ present difficult problems of factual Other courts have held that the tion and some of the shortcomings of proof for the plaintiff. 17 signer's duty is continuous, so that Rule 11 and discusses the disparate Rule 11 does not establish the tim­ developments transpiring at any point impact of Rule lIon the litigation ingforimposingsanctions. Mostcourts during the course of litigation may process. This Article posits that Rule agree, however, that sanctions should make an originally legitimate filing 11 is applied against the plaintiffs' bar be imposed promptly after the offend­ frivolous and may justify imposing more frequently and has the incidental ing conduct to maximize Rule 11 's sanctions if the filing is not revised or effect ofdeterring vigorous advocacy.6 deterrent effect on subsequent abuses. 18 discontinued.26 Even courts which find The objective reasonableness standard Sanctions for frivolous motions are no continuing duty under Rule 11 hold mandated by Rule 11 has discouraged typically assessed at the time of or that Rule 11 is violated when subse­ uniformity in court decisions, and has soon after the motion is ruled on, quent papers ratify or reassert frivo­ created considerable uncertainty in the whereas sanctions for frivolous plead­ lous factual or legal allegations of the minds of attorneys who cannot predict ings are usually assessed after the liti­ original filing. Thus, if the plaintiff whether their conduct is sanctionable. gation has concluded. 19 discovers after the original filing that Sanctions are awarded pursuant to his claim is without legal or factual II. AMENDED RULE 11: AN a motion filed by a party to the action merit, his opposition to a motion for OVERVIEW or by the trial judge sua sponte. Rule summary judgment or dismissal would Amended Rule 11 requires the im­ 11 sanctions have even been imposed violate Rule 11 because it is a new position of "appropriate sanctions" by appellate courts for frivolous ap­ filing which tacitly reasserts the frivo­ when the rule is violated by the attor­ peals,20 although sanctions awards are lous factual or legal basis ofthe origi­ ney or party to the action. Rule 11 is more routinely reversed on appeaPI nal filing,21 therefore distinguishable from other The circuit courts are split over the laws which leave the penalty of sanc­ issue of whether Rule 11 imposes on A. The Signer's Certification tion to the discretion of the court.7 counsel and the parties a "continuing Under Rule 11 Even under Rule 11, however, judges duty" to reevaluate their case as the A signature on any pleading, mo­ retain considerable discretion in deter­ litigation progresses and to discon­ tion or other paper certifies that the mining the appropriate sanction and tinue the action if it becomes clear that signer (1) has conducted a reasonable against whom that sanction should be a filing no longer has a factual or legal inquiry into the facts and law support­ assessed, whetheritbe the attorney, the basis. This split of opinion exists ing the filing, (2) has submitted a filing client, or both. 8 despite the advisory nommittee notes which embodies existing law or a good Attorneys' fees are the most com­ to Rule 11 which caution that "[t ]he faith argument forthe extension, modi­ mon sanction/ although such an award court is expected to avoid using the fication or reversal ofexisting law; and rarely represents the total fees incurred wisdom of hindsight and should test (3) has not interposed the filing for an by the party requesting sanctions. 10 the signer's conduct by inquiring into improper purpose. If the court finds Sanctions may also take the form of what was reasonable to believe at the one or more ofthese requirements vio­ reimbursement for the reasonable ex­ time . the paper was submitted. "22 lated, it must impose an appropriate penses incurred to deal with the frivo­ The majority of jurisdictions, in­ sanction under Rule 11. lous filing, II fines,12 the striking of cludingthe Fourth Circuit, have heeded unsigned pleadings,13 injunctions the advisory committee's recommen­ 1. Reasonable Factual Inquiry against bringing new or amended dation and hold that the signer's acts Rule 11 does not specify the type of suits,14 or disciplinary action indepen­ must be judged against the facts and factual inquiry required priorto a filing dent of Rule ILlS law known at the time court papers are other than to require that the inquiry be Sanctions are sought in a variety of signed.
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