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Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


I have not seen data on numbers of premotion notices that prompted change ( like amendment or withdrawal) which obviated need for any motion to be filed. Do not know how such info could be easily secured.

Posted by: Jeff Parness | Nov 27, 2020 10:58:42 PM

Are there any studies of Rule 11 motions, how often filed, how often the object withdrawn, how often sanctions imposed?

Posted by: J. Bogart | Nov 26, 2020 8:06:51 AM

Rule 11 needs to be covered — and implemented — hand-in-hand with both "courts' inherent powers" issues... and the bar disciplinary system. The irony that each of these areas results, far too often, in an assumption that one of the others will act to control misconduct is one of those things to be discussed and studied in those "worthless" 3L seminars.

More than one state bar association has an explicit, internal policy of refusing to accept disciplinary complaints if there's a case in front of a judge, on the ground that the judge will control any and all misconduct. Conversely, the judges (over the years-long course of litigation) assume — often in comments from the bench or in chambers conferences — that any "deficiencies in general litigation conduct" properly belong to the bar regulators.

So maybe the problem isn't with Rule 11 at all. Maybe it's with too much "there but for the sake of grace go I" in the entire process, especially among those who remember the fights over "zealous advocacy" even being considered appropriate in the Code of Discipline.

Posted by: C.E. Petit | Nov 25, 2020 12:55:18 PM

I second Jeff Parness's suggestion that the safe harbor usually works, and I think that Rule 11 itself creates important disincentives. Compare the out-of-court statements that Giuliani/Trump team has made about the existence of fraud with what the lawyers are willing to say in court--there courtroom claims are far more limited. I think Rule 11 is acting a deterrent here pretty effectively.

Posted by: CBR | Nov 25, 2020 12:14:16 PM

Rule 11 should be a 15 minute lecture. Students should know that it exists and that when litigation gets chippy, it gets tossed about. Judges hate it. It’s letting a tail wag the litigation dog when there’s a real fight at hand. Get to Erie which actually is important and which no one understands.

Teach the 15 minutes of Rule 11 with a sports metaphor. It’s like a suspension in sports. It’s not like a penalty. You really have to deserve one, and if it’s ever appropriate (usually won’t be) pretty much every observer will believe it appropriate.

Posted by: Anon | Nov 25, 2020 7:24:53 AM

I think it's worth teaching precisely because it's rarely used and contains a safe-harbor provision that makes it even more toothless than it would otherwise be. A lot of lawyers don't know that and are likely to file a frivolous sanctions motion at some point in their career if that isn't taught to them.

Posted by: Asher Steinberg | Nov 24, 2020 9:29:13 PM

Perhaps Rule 11 is used sparingly because the safe harbor provision usually works. And what a good way to introduce legal ethics.

Posted by: Jeff Parness | Nov 24, 2020 2:10:54 PM

FWIW, Erie appears at most once in a blue moon on the bar exam (usually in the tangential context of Klaxon and Van Dusen on transfer and choice of law), while Rule 11 appears periodically in an essay and, word has it, frequently in the multiple-choice MBE. And Rule 11 is a great platform for discussing all manner of important foundational topics, like "improper purpose" and the degree to which the rules require lawyers to own (or not) their clients' stories (inquiry reasonable under the circumstances = fact/law guarantee?). My students have always seemed to deeply engage with and morbidly enjoy Rule 11, in contrast with an abiding and consistent seething hatred of Erie and the long string of its incomprehensible progeny. Past surveys on the Civ Pro listserv seem to have indicated profs are much more likely to dump Erie than Rule 11, for very good reasons, it seems to me.

Posted by: Jason Kilborn | Nov 24, 2020 1:49:29 PM

"The world would be a better place if Giuliani et al.'s civ pro professors had spent more time on Rule 11, not less"

Disagree. Nothing can affect someone intending to act in bad faith.

Posted by: anon | Nov 24, 2020 11:13:57 AM

See, the recent litigation has pushed me in an opposite direction: we need to be doing a better job of explaining the Rule 11 limits on litigation to our students, not a worse job. The world would be a better place if Giuliani et al.'s civ pro professors had spent more time on Rule 11, not less. The same goes for the judges considering these cases.

I think it's possible to do all of that while, at the same time, acknowledging the rarity of Rule 11 sanctions in current practice.

Posted by: anon3 | Nov 24, 2020 11:01:00 AM

Rule 11 is sort of philosophically interesting in the sense that it represents a theoretical limit on what kind of arguments a party can make in litigation and in that respect it makes for a good class discussion. But it's certainly not essential: for practical purposes all that lawyers really need to know is that courts have a sanction power that they use sparingly and somewhat arbitrarily.

Posted by: alkali | Nov 24, 2020 10:54:15 AM

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