This episode is about the practical application of Rule 11.
Welcome to the Civil Procedure Podcast. I am your host, Thomas Main and this episode is about Rule 11. In practice, the stakes with this topic are quite high. We have our reputation on the line and at the extreme, even our bar card, our license to practice law among our professional obligations is the duty to vigorously or zealously advocate on behalf of our client. We are always looking to advance our client's interest with every filing, but we have a number of professional obligations that constrain that conduct, and among those is compliance with federal rule of civil procedure. Rule 11. Now, for better or worse or better and worse, the mandates here are vague enough that they don't always resolve the questions about what we must do in a particular circumstance. So let's figure out what is clear and what is subject to interpretation. First rule 11 applies to pleadings, motions, and any other papers we are filing in court. Rule 11 does not apply however to discovery. Discovery has its own sanctions rule which begins with rule 37, but rule 11 does not apply to discovery. Rule 11 also doesn't apply to conduct. It doesn't apply to unfiled papers and it doesn't apply to oral statements that we might make except to the extent that an oral statement would constitute later advocating a filed motion. To the extent that our oral statement is sort of incorporating something that we said in a paper, well then that oral statement is treated as a new utterance that is subject to Rule 11 under those circumstances, and it is that kind of a situation where later advocacy invokes some prior filing that is referred to as the continuing obligation under Rule 11, but it's really a limited continuing obligation because it is limited to that kind of a circumstance. In other respects, the approach of Rule 11 is more so a snapshot approach where when filing a pleading a motion or another paper, the idea is rule 11 needs to be satisfied. At that moment, the snapshot is taken at the moment of the filing or the moment of the statement. So again, the only exception to that snapshot approach is where later advocacy is again revisiting or invoking or in a sense resurrecting some earlier filing. Now because rule 11 is itself a motion, rule 11 motions are themselves subject to rule 11, so that allows us to have some infinite regress with rule 11 on rule 11 on rule 11, so watch for that. Implicit in all of this is something that I want to make very explicit here. Lawyers sign pleadings, motions, other papers, not clients. The lawyer signs the complaint, the lawyer signs the answer, the lawyer signs the motion to dismiss, and so those signatures are where rule 11 is building these obligations because by your signature you are making various representations to the court. In paragraph B of rule 11, you'll see four representations that are specifically enumerated, but even before those four are listed in 11 B, there is an additional representation that applies to all of them, and that representation is that you will have satisfied your duty to conduct an inquiry of a type and in such an amount that is reasonable under the circumstances, see that certification as itself something to which the signer is certifying. So that's in addition to the representations of B one through B four. And now let's go through each of those B one through B four representations. First is a representation that you are not filing this pleading motion or other paper for an improper purpose. You can't file something merely to harass or to cause unnecessary delay or to needlessly increase the cost of litigation. Appreciate the breadth of that certification. If it was read broadly, it would apply to a lot of litigation conduct. If you file a 12[inaudible][inaudible] for example, that you know that you're going to lose but you file it just to buy some additional time, have you just violated rule 11? You certainly filed the motion to achieve something that could be characterized as delay. Maybe it doesn't constitute unnecessary delay, though I certainly wouldn't want to have to argue that it was a necessary delay, either. My point is the vagueness in the mandate. Consider another example. If you have substantially more resources than your opponent, is it unethical to exploit that isn't increasing the cost of litigation, part of a routine strategy to create leverage in litigation, or again, maybe this isn't needlessly increasing the cost of litigation, the vagueness in the mandate. Another one, if I file a motion at a time when I know that opposing counsel is busy and that they'll need to work over a long weekend, something that will make them cranky and miserable but perhaps more amenable to my pending settlement offer, have I filed that motion then to harass and therefore violated Rule 11 by having an improper purpose that we don't have clear guidance in the rules leaves a rule for advocacy. Obviously the rules appreciate that lawyers are adversaries and competitors, but they're also trying to temper those instincts somewhat and appreciate that one can't know whether something is an improper purpose without knowing what a proper purpose would be. Isn't it proper to seize every conceivable advantage for your client? Well, yes, provided you don't cross some ethical line, but it's frustrating because that's the question, not the answer, and we're not getting a lot of answer on this question. If the standard wasn't already vague enough, realize that it could also be interpreted subjectively and or objectively, and that could really matter here. If this is a subjective inquiry and someone said, honestly, I had no improper purpose, I was operating in good faith, well then that would be good enough. And some courts do take a subjective approach, but others are much more objective here. Objective with respect to the facts and circumstances, here's what you want to do on an exam. Don't allow a individual's good faith to insulate them, to immunize them from sanctions. They can still be sanctioned if the facts and circumstances suggest that they were acting with an improper purpose, but switch to a subjective model in circumstances where the defendant really is acting in bad faith. Using and defending that approach would allow you to demonstrate that you understand both subjective and objective approaches and it would put you in the mainstream of how courts deal with B one inquiries under rule 11. So let's go on to B two, which is legal contentions. Under this paragraph, we are certifying by our signature that we have done our legal homework. You are certifying by your signature on the complaint, by your signature on an answer, by your signature on a motion that references to the law in that pleading motion or other paper are correct. Now, that doesn't mean that you can only make arguments that are supported by existing law. You can also make non frivolous arguments for modifying the law or even for entirely new law. Though the safe course when you're doing that is to say exactly what you're doing as opposed to pretending that what you're saying is the existing law as B two demands that you certify you have done your legal homework. B3 is a certification that you have done your factual homework with respect to each factual contention, you are representing one of two things. First, you might be representing that you have evidentiary support for that allegation. What do factual allegations look like? Well, an allegation that the defendant was speeding, an allegation that the plaintiff was intoxicated, an allegation that the defendant was aware of a defect in their product, an allegation that the plaintiff purchased the product from an unauthorized reseller under the first of these two prongs. Here you need evidence in the file if you're going to put that factual allegation in a pleading or a motion. Now, how much evidence do you need? Well, once again, that's frustratingly and deliberately vague. Let's put a fine point on this. Do you right now have evidence that I'm recording this episode while seated? After all, you can probably tell that I'm almost certainly not walking because you don't hear any outside sounds and I'm not out of breath and I'm probably not standing. Well, this is certainly not the most compelling evidence but query whether it is evidence that I'm seated. Nonetheless, if you are alleging that the defendant was speeding, do you need some objective evidence or just your client's perception? Or maybe your client didn't even see the defendant speeding, but just heard someone else say it while they were being treated by the E M T at the scene of an auto accident. The rule doesn't clarify the specific standard, but we can see what the fight would be about. Did you have evidence in your file when you made that factual assertion to the extent that that ambiguity scares you away from deploying that prong saying, I don't know if I have evidentiary support. Tell me what's the other option here? The other option is that you will have evidentiary support in due course. And of course this is frequently the case. Now, I don't know if the defendant was speeding, but let me get some access to some security cameras and let me ask the defendant some questions under oath and let me find all of the eyewitnesses. Well, if I don't need evidence now and if all I need is good reason to believe that I will have evidence, well then what's the big deal here? Answer. The big deal is the fact that if you are relying on this second prong where you are saying, I don't have evidentiary support right now, but I will have evidentiary support, the problem is these allegations under this second prong must be quote specifically so identified closed when made in the pleading the motion or the other paper. So if you can't allege that the defendant was speeding because you don't presently have evidence that they were speeding, then you need to say that in the complaint to avoid a rule 11 problem. The problem with specifically so identifying such a factual allegation is that it's a bit like writing that allegation in purple Inc with a unicorn emoji in the margin because you're saying these are allegations for which I lack evidence, but I have big dreams, I have fantasies that I'm gonna find evidentiary support for these factual allegations. A practical consequence of that purple ink and unicorn emoji is that a court is unlikely to take those allegations very seriously when for example, it is reviewing a complaint on a 12[inaudible][inaudible] motion. So adding the qualifier that you don't presently have evidentiary support for this allegation solves the rule 11 problem. It in insulates you from a rule 11 sanction, but it creates another problem. And 12[inaudible][inaudible] is a good example of the problem it could create. Such is the seamless web of practice and procedure. Paragraph four of rule B applies to denials. This paragraph B four is an effort to make the obligation of defendants when answering more symmetrical with the obligations under B3 that tend to apply to plaintiffs. Defendants need evidence in order to deny an allegation. So if you're denying the allegation that the defendant was speeding, you need evidence that the defendant was not speeding or once again because there is symmetry with b3, you may instead identify it with this. Well, we don't have evidence right now, but we expect to find it now. There is not real symmetry here in the consequences for plaintiffs and defendants under B3 and B four respectively. When Purple Inc and unicorn emojis appear in a complaint, plaintiffs run the risk of a dismissal under 12[inaudible] six by contrast, when purple in and unicorn emojis appear in an answer, the defendant faces only a theoretical risk that the court might deem that paragraph of the answer to be an admission of the allegation in the complaint, and that in turn could in theory lead to a 12[inaudible] judgment on the pleadings or maybe a summary judgment for the plaintiffs, but it's just not a practical risk. That's why the symmetry is missing. So those are our representations under 11 B. Next, let's talk about how a violation of Rule 11 doesn't necessarily mean that sanctions will be imposed. Paragraph C one says that the court may not must, may impose an appropriate sanction in the text of the rule, doesn't give judges any guidance on when they should or when they shouldn't sanction. As a practical matter, judges tend to consider a few things. I'll list three here. One of them would be the level of culpability. So look at the behavior and analyze whether it was willful or just careless, negligent. Was it intentional or unintentional? So the first factor would be that level of culpability. The second judges are looking for whether this is an isolated event or something that's part of a pattern. So look for repeat offenders or recidivists. And in the third line of inquiry, I would encourage you to try to analyze the havoc that was created by the conduct. Did it infect the whole pleading or maybe even the whole case, or was the harm caused by this conduct contained to a limited universe? The more expansive it is, the more recidivous the offender is and the more culpable the offender is, the more likely sanctions will be imposed. Some criticize the discretionary nature of sanctions. Naturally there's going to be unevenness of enforcement inconsistency in application and still others criticize not the inconsistency or unevenness of enforcement, but rather the practical likelihood that sanctions just won't be imposed that this mandate is toothless. The argument there is that judges don't like imposing punishment, and so if they have an escape hatch, they'll probably take advantage of it and not impose sanctions. These critics say that judges might actually prefer it if we tied their hands and forced them to sanction when the rule was violated, make sanctions mandatory. Those who defend the discretionary nature of sanctions would say we are just as committed as the mandatory folks are to the systematic enforcement of the norms here. It's not that we're trying to undermine Rule 11, they would say instead, it's really hard to articulate the right standard to make sure that we're getting the right enforcement of the norms because our norms are not trying to discourage innovative claims. Innovative causes of action litigation at the frontier is not a bad thing. And so because it's hard to sort out the frivolous from the frontier, the dubious and unwanted from the ambitious and welcome and because it's hard to sort that out because we can't state that with precision in the 11 B representations that describe or prescribe the certain conduct, we deal with it instead at the back end at the enforcement stage by allowing judges to use their discretion to decide whether sanctions are appropriate. Uh, lukewarm interest in enforcement shows up in other respects in the rule as well. It's not just the discretionary nature of sanctions. The guiding principle in B four of the rule says that even when you are imposing sanctions, the sanction should be limited to what is necessary to deter this kind of conduct. So notice that there's sort of a principle of laity embedded in Rule 11 with respect to the magnitude of the sanction. The emphasis here in the rule is on deterrence, and that is a deliberate departure from earlier versions of this rule. Earlier versions saw rule 11 as more about punishing the offender and more about compensating the victim, the moving party, not anymore. Now the rule is just about deterrence. You can see this also in the preference for public interest remedies such as fines and reprimands being the norm. Those are public interest remedies because even monetary penalties should ordinarily be paid into the court rather than to the victim or the moving party. Again, it's not about compensating the victim, it's not even about punishing the offender. Rather, it's about deterring this sort of conduct, this earlier version of the rule, and specifically what I mean by earlier, there is a decade from 1983 to 1993 when this Rule 11 really became much more about fee shifting where the victim of the sanctionable conduct would get their attorney's fees paid for by the offender. And so for that decade, rule 11 had this fee shifting vibe associated with it that a 1993 amendment tried to remove, hence reforms making sanctions, discretionary reforms, emphasizing the deterrence only nature of the rule reforms, making monetary penalties generally payable to the court rather than to the moving party. And since 1993, the rule itself has contemplated greater use of non-monetary sanctions. These non-monetary sanctions are not outlined in the rule, but they include things like judges issuing formal warnings or judges requiring the offender to circulate the opinion that imposes sanctions or maybe it's a non-monetary sanction that is a referral to a bar association for some sort of inquiry. Another non-monetary sanction would be drawing inferences or deeming things to be admitted or striking pleadings trying to deal with the sanctionable conduct through these non-monetary approaches. And as you might imagine, there are quite a few one-off sanctions where somebody does something like, well, I read a case where a judge required a lawyer as their punishment for violating Rule 11 to represent a pro se plaintiff in another case query, whether that's also punishing the Wouldbe pro se plaintiff that now has this clown as an attorney, but how was the judge's sanction? Let's turn now to the process for initiating sanctions and once again, we have two prongs. There are two ways that sanctions can be initiated. The first prong involves sanctions being initiated by the judge on her own initiative, and there's not much of a process for that. The judge does have to give notice and the opportunity to be heard. That's the importance of the reference in 11 C three to the show cause close quote, you are more likely to be asked about the second prong, which is how attorneys can initiate the sanction process. And it is in this second prong where we deal with the safe harbor provisions of rule 11. Here's what we're talking about with respect to the safe harbor. If you want to initiate the sanction process, if you think your adversary has violated one of the representations of 11 B, you prepare a Rule 11 motion so you write it up. But rather than filing that motion with the court, don't file it. Instead you serve that motion on the other side. This needs to be a separate motion. Don't combine it with something else. And it can't just be a letter, some sort of informal notice. Nope, it needs to be a motion that you serve on the other side. You then, according to this safe harbor provision must give the other side 21 days from service of that motion to take some corrective action. You give them three weeks to respond to that motion. If during that period they cure whatever you brought to their attention that violated rule 11 B, if they cure it, maybe they amend the pleading, withdraw the pleading, dismiss their case or dismiss the count. If they cure, then you never file that rule 11 motion, your rule 11 motion becomes moot. Now, if the other side doesn't cure, if they don't amend or they don't withdraw or they don't dismiss or they do something but not enough, then you file your motion After the 21 day period, you have complied with the safe harbor provision and then file your rule 11 motion with the court. Remember that the point of the safe harbor is to give the other side this opportunity to cure. So if in any fact pattern you have a situation where the defendant didn't have that opportunity to cure, if they didn't get the full 21 day period to cure, then sanctions should not be imposed. And so for example, imagine that a plaintiff serves a complaint and the defendant files a motion to dismiss with the court and also at that same time serves the plaintiff with a Rule 11 motion. And then imagine that just 10 days later, the court grants the motion to dismiss What happened happens to the pending rule 11 motion answer, it's now obsolete. You can't file it because the defendant didn't have the full 21 day period to respond to your Rule 11 motion. So you can think of it as the failure to withdraw that is really the sanctionable conduct. We've had this safe harbor provision for nearly 30 years now in litigation, but it's still the subject of criticism. Obviously it takes some of the bite out of the mandate and some argue that it even encourages thoughtless, reckless, and harassing pleadings because the safe harbor is gonna give you notice before you are actually subject to sanctions. I can say whatever I want with impunity knowing that I'll get the 21 day opportunity to fix whatever is brought to my attention. That's true and not true. It's not true to the extent that the safe harbor does not apply to judges. Remember that first prong judges can impose sanctions without complying with the safe harbor. They merely need to give the offender notice and the opportunity to be heard. It's only when parties are bringing rule 11 motions that the safe harbor is triggered. Let's talk next about who can be sanctioned Under the rule. Any attorney law firm or party can be sanctioned. Now the attorney is the most obvious, but the rule also says that absent exceptional circumstances, a law firm must be held jointly responsible. So this puts some bite back into the rule as if it weren't embarrassing enough to be sanctioned. Getting your law firm sanctioned would heighten that shame. You will see in the rule that clients can also be sanctioned, but when the offending conduct concerns the council's competence, especially on matters that are beyond the client's understanding. Well, the rule is set up so that council alone and the council's law firm will be sanctioned, but the rule also contemplates situations where the offending conduct is rooted in the client's misrepresentations or the client's failure to disclose. And under those circumstances, we might imagine a situation where the attorney's reliance on the client's misrepresentation or failures was reasonable, in which case only the client might be sanctioned. Or maybe it's a combination where the client and the attorney and the attorney's law firm are sanctioned. The rule contemplates each of those possibilities. Rule 11 also allows judges to sanction unrepresented litigants, pro se parties. Since you'll be the lawyer, you're not likely to worry about that. But here's something you should worry about. What if you help some unrepresented party by ghost writing for them? Your name's not on the pleading or the motion, but you helped them write it and sign their own name. There are these cases and what courts have found is that that is unprofessional conduct and is a violation of Rule 11 by the ghost writer. So be warned. Now, we're about to wrap up Rule 11 here, but I want to make sure that you see Rule 11 also in a broader constellation or broader context. Rule 11 is just one authority for courts to sanction. It's the only one we cover in depth in a first year civil procedure course, but it's also probably the most muted of all of the various sources of authority to sanction. All I want to do here is flag some of these other sources just so you've heard them once. Courts also have what's called inherent authority to sanction. They also have the power to hold someone in contempt. There is also statutory authority under section 1927 of Title 28 that gives them some authority to sanction. And of course there is also the board of Bar Overseers who impose discipline on members of the profession. So Rule 11 is just one component of this larger battery of available measures to regulate attorney conduct. And what most distinguishes Rule 11 from these other sources is that it's the motion most available to litigants, to litigators to trigger the process for getting someone sanctioned. Judges have other sources, but even there, the basic thinking is that matters that fall within the purview of Rule 11 should be dealt with by judges within the infrastructure of Rule 11 rather than those other sources, which are in a sense, fallback sources. Even if those fallback sources in many respects have a much bigger punch associated with them than Rule 11. I'm gonna conclude this episode with three profound questions about Rule 11, some profundities that you can insert into a conversation about Rule 11. Question number one, does rule 11 actually make things worse if we are trying to to reduce or to deter conduct that makes litigation inefficient? That makes litigation nasty? Well, what about all of the litigation that Rule 11 creates? Sanctions require enforcement proceedings and that in turn requires investments of time and money. So what about that distraction? What about that waste, that delay? And what about the increased tension and acrimony that's generated by Rule 11 hearings and by the prospect of Rule 11 hearings? Maybe Rule 11 is net beneficial, but make sure that your calculation is indeed a net calculation profundity. Number two, think about whether judges are well positioned to evaluate the quality of lawyering. Judges are assessing the lawyer's legal homework, their factual homework, their purpose, their litigation strategy, the reasonableness of the lawyer's inquiry. There is certainly an argument that it's difficult to put yourself in that lawyer's shoes or put another way to put yourself in that lawyer's shoes would require a rather lengthy, complex undertaking to fully appreciate all of the potentially relevant factors and influences. So when Rule 11 expects a judge to second guess a lawyer's work, either they're gonna do it with an incomplete inquiry, which is problematic for all the obvious reasons, or they have to do the full hearing, which is cumbersome and expensive and distracting. And so the simple, yet important point here is that we're expecting judges to do something that might be unrealistic. Third and final of our profound questions. If we were genuinely trying to deter the sort of conduct that is prescribed in Rule 11, what would we do with the information that a lawyer violated this rule? The not so subtle criticism here is that information about sanctions is not widely broadcast. There is no national database of sanctions. There is no systematic public shaming. There might be a news story about it, but that would be the extent of the distribution of that information. That said, let me be clear that if you are sanctioned, you will be asked about it. You will be asked about it when you, you are seeking a judgeship, for example, or you may be asked about it when you are looking for insurance or maybe if you are looking for a job with another firm. The point of this third question is not that the imposition of sanctions is entirely inconsequential, but rather that the information is not publicly broadcast. I think that's enough of an overview to the Rule 11 motion in practice. Thank you for listening to this episode of the Civil Procedure Podcast. I appreciate your attention. Please consult your podcast feed or take a look@civilprocedure.com for related episodes. And of course, have a good day.