Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions
1936 Federal Rules of Civil Procedure and
Rule 8 (generous in allowing complaint without much detail) were a response to perceived over-strict classification rules of pre-existing pleading regime.
- Pleading had become too technical, reserved to insiders.
- Rule 8 replaced it with easy-to-satisfy requirement ("short and plain statement that pleader is entitled to legal relief").
Current form of
Rule 11 has origins in 1980s (1983) as a response to
Rule 8's generosity:
- It was thought that too many abusive/frivolous suits had emerged.
- Plus a perception of too much vexatious legislation.
- But original Rule 11 created its own (new) problems.
Thus, Rule 11 amended again in 1990s to refine the balance:
- "Safe-harbor" provision: violators have 21 days to cure violation once informed by victimized party without sanctions.
- Shift in focus away from compensation to victim of impermissible action to instead a focus on deterring future Rule 11 violations.
- Due to Rule 11's previous promise of attorney’s fees, Rule 11 litigation became too much a part of the process, used too much to try to get attorney’s fees out of losing parties generally.
- Sometimes swamped primary litigation.
- Thus new Rule 11 deters filings under the Rule filings.
- Has it gone too far? Too much of a deterrence?
Rule 11 is unusual because it speaks to professional responsibilities:
- Substantive prohibitions track and echo admonitions that already existed in canons of existing ethics rules ("professional responsibility").
- Rule 11(b) prohibits a variety poor and unethical lawyering (Suppl. p. 31, note ambiguities in language, etc.):
- Only filings to court trigger Rule 11, although oral statements can affect liability after first filing. (Yeazell, Note 1a, p. 355.)
- Groundless interrogatory—no, inapplicable to discovery. Instead see sanctions under Rule 26(g). (Yeazell, Note 1bl Suppl. p. 75.)
- Note: Courts can always intervene with sanctions, even without rules. See Yeazell, top of p. 363, including 28 U.S.C. § 1927 ("Counsel's liability for excessive costs"), although each one has own grounds, etc.
- Frivolous paper not only premise of Rule 11 violations (See Yeazell, note 3, top of 356).
- Failure to file amended answer not a violation.
- Re-asserting in oral arguments is a violation, due to later advocacy in pleading. (Question: what happens in discovery?)
- If client’s story is false and demonstrably so, is this a Rule 11 violation? (Yeazell, Note 2a)
- Was "inquiry reasonable under the circumstances"?
- Reasonableness is a contextual inquiry.
- Did client violate Rule 11?
- Textually Rule 11 doesn’t seem to impose obligations on represented parties.
- But see 11(c): parties "who are responsible for the violation."
- Less clear what happens if attorney is "reasonable," but client is not.
- Probably not then a violation by client.
