Volume 75 (February/March, 1992), pp. 269-272
Clearly, the low incidence of sanction was not due to universal satisfaction with lawyers' behavior in litigation. Concerns with lawyer behavior and the litigation explosion in general led the Advisory Committee to the Federal Rules of Civil Procedure to suggest a series of amendments to the rules during the early 1980s. Among the 1983 amendments' most important changes to Rule 11 was a shift in focus away from inquiring into what the attorney actually knew about the law and facts of the case when he or she filed a pleading. Instead, the amended rule instructed judges to inquire into what the lawyer should have known after conducting a "reasonable inquiry." It also modified the level of a judge's discretion in dealing with violations of the rule. Unlike the earlier provision that merely authorized sanctions, the new rule made sanctions mandatory.
The 1983 revisions to Rule 11 have spawned a steady stream of critical reaction. Meetings and publications of lawyers, judges, and academics are filled with "war stories" in which some participants praise the rule for the abuses it curbs, while others condemn it for the abusive manner in which they argue it is applied. Amidst all of this debate, one constantly hears dramatically conflicting accounts of what practical effects Rule 11 has had on federal civil practice, much of it articulated in the form of anecdotes that are presented in cosmic proportions.
As part of its mission to improve the administration of justice, the American Judicature Society conducted a
comprehensive empirical study of Rule 11's application and effects. This study was motivated by the conviction that
meaningful assessment of Rule 11's impact must be informed by actual evidence about how the rule has been applied
and how it has affected the practice of law nationwide.(1)
To get a broad, national perspective on Rule 11's application and effects, AJS chose to examine Rule 11 activity in three federal judicial circuits: the Fifth, Seventh, and Ninth. These three circuits provide both significant geographical diversity (south, midwest, and west) and variability in the perceived incidence of Rule 11 motions and sanctions. To ensure that the variation existing within these circuits is also reflected in the study, several district courts--one that includes a large city, one that covers mid- size communities, and one covering less urban areas--were selected within each of the three circuits. Two additional districts were selected in the Ninth Circuit because of its unique size and diversity.(2)
To obtain a representative view of the experience of those actually practicing in these courts, case records were used to identify attorneys to be surveyed. A random sample of cases was drawn from the 1989-90 civil dockets (excluding prisoner petitions and government collection cases). The lead attorney from each side (excluding government attorneys) was included in the sample. Because cases, rather than attorneys, were sampled, the probability of an individual attorney being included was proportional to the number of cases he or she appeared in during the sample period.
The questionnaire was structured to seek information about direct personal experiences with Rule 11 in the 12 months prior to the survey. Attorneys were asked whether (and how many times), in the last 12 months, they had been involved in cases in which sanctions were imposed, sanctions were requested, Rule 11 was mentioned in court without a sanction request, and Rule 11 was mentioned outside of court. Additionally, attorneys were asked about anticipatory actions (i.e., not filing papers, declining cases, etc.) during the preceding 12 months. Thus, in addition to obtaining information on actual motions and sanctions, the survey was designed to gauge the extent to which lawyers think, talk, and make threats about Rule 11 even when Rule 11 never finds its way into the record.
In addition to actual events in the last 12 months, the respondents were asked about broader effects on their practices and to identify what they believed to be Rule 11's biggest impact. They were also given the opportunity to relate experiences with Rule 11 outside *270 our defined time frame (i.e., more than 12 months ago). The 75 per cent response rate from approximately 4,500 attorneys surveyed gives us confidence that an accurate picture of Rule 11 activity inside and outside the courtroom was obtained.
Despite many claims that Rule 11 motions have become routine,(3) the data reveal that the frequency of formal Rule 11 activity is significant, but not large: 7.6 per cent of the respondents report involvement in a case in which Rule 11 sanctions were imposed during the last 12 months.(4) These overwhelmingly reflect single experiences in the 12-month period. About one quarter (24.3 per cent) of the respondents report involvement in a case in which a formal Rule 11 motion was made but no sanctions were imposed. Combining the figures for sanctions and unsuccessful motions, we estimate that about 17 per cent of motions and show cause orders lead to the imposition of sanctions.(5)
Consistent with its reputation, the Seventh Circuit stands out among the circuits in sanctioning behavior. There is a significant difference among the circuits in the proportion of attorneys that report being involved in a case in which a sanction was imposed: 9.9 per cent from the Seventh Circuit, 7.6 per cent from the Fifth Circuit, and 6.2 per cent from the Ninth Circuit. As shown in Table 1, the Seventh Circuit is also significantly more likely to impose sanctions given an actual motion or show cause order.
TABLE 1: SANCTIONS IMPOSED AS A PROPORTION OF MOTIONS FILED
The basis for Rule 11 motions and sanctions also are comparable to the Federal Judicial Center findings,(6) with the filing of frivolous suits or claims the most frequent response. As shown in Table 2, they are the basis for 21.3 per cent of the sanctions imposed and 21.3 per cent of the motions that do not result in sanctions. Frivolous pleadings, motions, and responses account for another 16.5 per cent and 14.3 per cent of sanctions and motions (that do not result in sanctions), respectively. This result is not terribly surprising. Of greater significance is the frequency with which discovery abuse is cited by respondents (14.9 per cent of sanctions imposed and 19.2 per cent of motions, without sanctions). Discovery abuse is cited more frequently than are frivolous pleadings, motions, etc., as the basis for the filing of Rule 11 motions (19.2 per cent versus 14.3 per cent). (Here again, the FJC found a similar pattern of results.) The only other basis that accounts for at least 10 per cent of sanctions imposed is failure to respond to court orders.
TABLE 2: BASIS FOR RULE 11 ACTION
|activity||Sanctions||Motions||In Court||Out of Court|
|Filing frivolous pleading/motion/ response||16.5||14.3||18.7||17.2|
|Failure to respond to court orders||10.8||2.9||1.5||1.1|
|Failure to adequately investigate facts||6.8||10.1||10.5||10.0|
|Failure to adequately investigate law||4.0||3.4||3.3||3.1|
Although we were quite explicit that the focus of this study was Rule 11 and not Rule 26(g), discovery abuse remains a prominent reason for Rule 11 activity. While it is true that a motion for discovery could be deemed frivolous and therefore subject to Rule 11, the frequency of references to discovery abuse in our data and those of the FJC along with what appears to be limited Rule 26(g) activity suggest another explanation. It may well be that Rule 11 has become the "generic" sanction, the one thought of and cited for a wider variety of sanctionable conduct.(7)
One of the major points of contention over Rule 11 sanctions has been the allegation that they have been too rarely enforced through nonmonetary sanctions. Our data confirm that they constitute only a very small proportion of sanctions. Approximately 95 per cent of the sanctions imposed have been monetary (in a very few cases a non-monetary sanction has been imposed as well), but the dollar amount of these sanctions calls into question conclusions by some that such sanctions serve as an incentive to litigation or that cost shifting has become the norm. The median sanction is $2,500--that is to say 50 per cent of monetary sanctions awarded were for less than $2,500. A full two- thirds of the sanction awards were for $5,000 or less. While there are some exceedingly high individual awards, the pattern of awards does not appear to be at the level that much of the debate over Rule 11 has indicated.
Formal motions and actual sanctions are not the only way that Rule 11 can be used in the course of litigation. References to Rule 11, or the possibility of sanctions, can serve as warnings and threats that have important influences on the course of a case. In this survey of lawyers, respondents were asked about their experiences with Rule 11, both in court and out-of- court, in which no formal Rule 11 sanction request or procedure (e.g., a motion, show cause order, or equivalent) was initiated, but some explicit warning or threat of a request for Rule 11 sanctions was made.
Based on the data, 24.5 per cent of lawyers had experience with in-court references (about one-half of those in papers and one-third in open court or chambers) and 30.3 per cent with out-of-court references to Rule 11 during the 12 months preceding the survey; while *271 the exact percentage differed from one circuit to another on each of these kinds of references, those differences did not exceed normal sampling variation. What precipitated the Rule 11 activity? Referring back to Table 2, it is clear there is little to distinguish between in-court and out-of-court references.
In addition to behavior directed at an opponent, litigators believe they have modified their behavior in response to the strictures and threats of Rule 11. Indeed it could be argued that the 1983 amendments were intended to achieve some behavioral changes in practice by federal litigators. For example, in its commentary to the proposed amendments to Rule 11, the Advisory Committee on Civil Rules notes that the goal of the 1983 version of Rule 11 is to get litigants to "stop and think" before filing pleadings, motions, and other papers. The data confirm that Rule 11 has had some effect in this regard. Near the end of the questionnaire, attorney respondents were asked, "What is the biggest impact, if any, of the sanctioning provisions of Rule 11 on your practice?" The most frequently cited impact--the one that is referred to by close to a quarter of the respondents--is "more factual investigation." In addition, respondents were asked to reflect back on the prior 12 months and consider a series of behaviors in which they may have engaged primarily because of a concern about being subject to a motion for sanction under Rule 11. The most frequently cited behavior (by more than one-third of our respondents) was an "extra pre-filing review of pleadings, motions, or other documents subject to Rule 11."
Much of the debate over Rule 11 has centered on its alleged variable impact on plaintiffs and defendants. To a great extent any rule that is aimed at limiting the filings of frivolous lawsuits, if effective, would be expected to have a greater impact on plaintiffs. And while our data support this variability in impact, the results are somewhat more complex than might have been anticipated.
TABLE 3: CASE-SPECIFIC RESPONSES TO RULE 11 DURING THE LAST 12 MONTHS
|Plaintiffs' bar||Defense bar|
|Made specific reference to Rule 11 in trying to discourage a client from pursuing a course of action||28.3%||25.5%|
|Advised a client not to pursue a lawsuit that you thought had little or no merit||31.8||15.8|
|Did not file particular papers in a given case that you would have liked to file||12.2||11.0|
|Did an extra prefiling review of pleadings, motions or other documents subject to Rule 11||32.3||39.6|
|Decided not to assert a claim or defense that you felt had potential merit||20.5||17.5|
|Asked your client to sign a motion or pleading before filing it in court||13.4||11.1|
|Had counsel other than yourself sign pleadings or other documents||5.6||6.9|
|Litigated a case in state court which you would have referred to bring in or remove to federal court||11.0||4.5|
|Increased fees in anticipation of possible Rule 11 activities||3.1||2.0|
|Removed a case to federal court in order to have access to Rule 11 sanctions||1.0||8.6|
As indicated in Table 3, respondents were asked about a series of actions they may have taken on their own in particular cases during the last 12 months due to concerns over Rule 11. Perhaps what is most interesting about the data in Table 3 is the similarity on 7 of the 10 items between the plaintiffs' bar and the defense bar. These include such items as "made specific reference to Rule 11 in trying to discourage a client from pursuing a course of action" and "did not file particular papers in the given case that you would have liked to file." In these and five other items in Table 3, the defense bar and plaintiffs' bar respond essentially the same. Approximately the same proportion of each group report engaging in those activities during the last 12 months. The three items on which there is a statistically significant difference between these two segments of the bar are also worth noting.
In response to a query as to whether the lawyer had advised a client not to pursue a lawsuit that the attorney thought had little or no merit, the plaintiffs' bar is twice as likely to respond positively. This is, of course, to some extent a plaintiff-based question and would be expected to find more activity among the plaintiffs' bar. It is also interesting that significantly more plaintiffs' attorneys are using Rule 11 to advise a client not to pursue a lawsuit that the attorney believed had little or no merit than are choosing not to assert a claim or defense that the plaintiffs' attorneys felt had some potential merit.
The other two items on which the plaintiff and defense bar differ significantly relate to the choice of forum. It is clear that the plaintiffs' bar is significantly more likely to choose state court over federal court as a response to Rule 11 than is the defense bar.
Of particular interest has been the extent to which Rule 11 has had a chilling effect on litigation. To examine this issue respondents were asked about cases they actually declined during the last 12 months because of concerns over Rule 11. Ten per cent of the respondents said they had declined a case primarily because of Rule 11 by advising a client not to pursue a lawsuit that the lawyer thought had some merit. Nine per cent had declined a case by advising a client to settle a case to avoid a suit that would be difficult to defend. A similar proportion (10 per cent) declined representation of a paying client, but less than 5 per cent reported declining a pro bono client primarily because of Rule 11. In contrast with what one might expect, those who declined paying clients were more likely to expect to be paid by the hour than by a contingent fee.
In reviewing the results, it appears that while the bar's experience with Rule 11 sanctions is not very great, the breadth of exposure to Rule 11 and its implications are significant. Although the numbers of respondents reporting actual experience with Rule 11 sanctions is low (and even with formal motions not terribly high), 60.1 per cent of the respondents state that during the last 12 months they have had at least some direct experience with Rule 11 in a particular case. This means they responded positively to one of the following:
An additional 22 per cent, while responding negatively to those experiences, did indicate they have done something in their practices connected to Rule 11 (i.e., it has influenced the way they have handled particular cases or resulted in changes in their general practice). Rule 11 clearly has touched the professional lives of most (82 per cent) of the respondents.
In sum, an examination of the experiences of randomly selected federal litigators in three circuits strongly suggests that much of the portrayal of the effects of Rule 11 has been unduly influenced by selected anecdotes that tend to emphasize big cases that are not representative of federal litigation.
As illustrated by these data, when systematic evidence is examined, the results are often more complex and not always in the direction anticipated. It is incumbent on those most concerned about our system of justice to ensure that policies are informed by broad-based realities rather than cosmic anecdotes if those policies are to have their intended effects.
1. The current study significantly expands and complements a previous AJS- published study of Rule 11's application in the Third Circuit: Burbank, RULE 11 IN TRANSITION: THE REPORT OF THE THIRD CIRCUIT TASK FORCE ON FEDERAL RULE OF CIVIL PROCEDURE 11 (1989). This study has a broader geographic focus and includes an increased effort to gauge how Rule 11 affects lawyers' behavior both within and outside of formal court proceedings.
2. The districts that were included are:
3. See, e.g., Solovy and Kaster, Rule 11: Framework for Debate, 61 MISSISSIPPI L.REV. 1 1991.
4. The figures regarding imposition of sanctions are roughly comparable to those reported for the Third Circuit by Burbank, supra n. 1; and for five selected districts by the Federal Judicial Center, RULE 11, FINAL REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES OF THE JUDICIAL CONFERENCE OF THE UNITED STATES (Washington, D.C.: Federal Judicial Center, 1991).
5. Sanctions are imposed about 60 per cent of the time when initiated by a judge (e.g., through a show cause order), compared with something under 20 percent of the time when initiated by one of the parties.
6. Supra n. 4.
7. In a special note to the Preliminary Draft of Proposed Amendments to Rule 11, the Advisory Committee on Civil Rules takes cognizance of this and states that it will be considering possible amendments to eliminate this "overlap" and "make the sanctions provisions in Rules 26 and 37 the exclusive basis for sanctions involving discovery.