Document Type

Article

Publication Date

1992

Abstract

With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of Civil Procedure 37 (regarding discovery) and Federal Rule of Civil Procedure 56(g) (regarding summary judgment affidavits made in bad faith), were seldom used or of great consequence. The statute authorizing imposition of counsel fees upon lawyers who unreasonably protract court proceedings, 28 U.S.C. § 1927, was employed even less often.

As almost every attorney knows, things changed radically with the 1983 amendment to Rule 11. "New" Rule 11 resulted in approximately 700 reported Rule 11 opinions in just four and a half years, a tremendous increase from the previous 43 years. Suddenly, sanctions were the rage. Section 1927 sanctions also saw an upsurge, often inappropriately, as courts equated Section 1927, which requires intentional bad faith, with new Rule 11, which does not. Ironically, however, Federal Rules of Civil Procedure 26(g) and 16(f), which Congress also strengthened in 1983, saw relatively little use.

Because Rule 11 empowered courts to sanction any "paper" it found to violate the Rule and because the complaint was the paper most frequently sanctioned, critics of new Rule 11 argued that it was manifestly pro-defendant in impact, disproportionately burdened some types of claims more than others, discouraged innovative lawyering, or had all of these undesirable effects. Defenders of new Rule 11, on the other hand, extolled the Rule or responded to the criticisms. Controversy over Rule 11 remained heated enough to prompt the Advisory Committee on the Civil Rules to issue a Call for Comments in July 1990. By November 1990, more than 100 bar associations, judges, scholars, practitioners, and other interested parties had responded. In essence, judges expressed support for Rule 11 while practitioners leveled strong criticism. In February 1991, the Advisory Committee held a day of hearings on Rule 11 and in May 1991 it issued a proposed revised Rule 11.

Publication Citation

60 Fordham L. Rev. 257 (1991).