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House GOP Turning Back Time With Rule 11 Mandatory Sanctions

By William Peacock, Esq. on November 15, 2013 11:49 AM

Those darn lawyers, always filing frivolous litigation. We need to curb the rampant abuse and frivolous litigation that plagues our court systems!

Yep. You've heard it before. We've heard it before. And even if there is a problem with frivolous motions and litigation, we're not so sure that the solution proposed by the Lawsuit Abuse Reduction Act of 2013 will do anything whatsoever to help.

In fact, if the history cited by the ABA is any indication, it'll have the opposite effect -- clogging the docket with Rule 11 litigation.

Rule 11 and LARA

Rule 11, when initially introduced, provided for mandatory sanctions whenever an attorney filed frivolous litigation or motions. About a decade after its introduction, the rule was advised to include a "safe harbor" provision, which allows attorneys to withdraw the frivolous paperwork within 21 days of a motion for sanctions to avoid punishment. The revision also made sanctions discretionary.

LARA, which was passed by the House earlier this week, would make the sanctions mandatory. If you're curious about the party split, it was 225 Republicans and 3 Democrats in favor, and 193 Democrats and 2 Republicans voting against the bill, for a total vote of 228-195. The bill specifically would:

  • Reinstate sanctions for Rule 11 violations;
  • Make those sanctions, including attorney's fees and costs, mandatory; and
  • Kill the "safe harbor" provision.

ABA Objects

In a letter to the House earlier this week, the ABA made a pair of strong arguments against the bill's passage: separation of powers and a look at the last time Rule 11 sanctions were mandatory.

Get Your Hand Outta My Docket

The Rules Enabling Act put the courts in charge of their own rules. Why? It's because the courts know the courts. Who better to write the rules than those who spend every day, week, and year in those wood-paneled courtrooms, dealing with frivolous litigation and motions? Plus, separation of powers makes us feel all warm, fuzzy, and constitutional.

Furthermore, when was the last time some unqualified person told you how to do your job, like a client suggesting a completely inapplicable legal strategy? What was your response?

Déjà Vu

Speaking of rules based on experience, though this blogger is a bit young to remember the 1993 change, if the ABA's account is accurate, the situation created by making sanctions mandatory would clog the docket far more than any present-day issues.

Why? The safe harbor. Before the safe harbor existed, attorneys had no reason to back down. "Oh, you think my motion was frivolous. Hmmm, I can drop it, and get sanctioned, or I can fight to the death, and maybe get sanctioned. I'll take billing my client and getting sanctioned for $300, please!"

See the issue? We'll see how the Democrat-controlled Senate responds. If the House's split is any indication, this is pretty much a non-issue.

What are your thoughts? Do we need to curb frivolous litigation and motion practice? Is LARA crafted to fix the problem? Tweet us @FindLawLP.

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