Proposal Unfairly Targets Civil Rights Plaintiffs and Chills Meritorious Claims

Federal and state laws already exist to discipline attorneys who try to bring frivolous lawsuits. Proposed revisions to the federal law, known as Rule 11, would chill meritorious claims, especially civil rights cases.

What is Rule 11?

Many may not realize that judges have the authority under what is known as "Rule 11" to penalize attorneys who violate the rules and bring frivolous claims by imposing sanctions that include:

• Monetary damages to cover the cost of the disciplinary proceedings;
• Monetary damages to penalize the offending attorney, law firm, or parties that have violated the rules; and
• Any directives of a nonmonetary nature the court sees fit.

The current rule requires litigants to “stop-and-think” before making legal or factual contentions. It also, however, emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention.

Efforts to Go Backward

In 1993, the U.S. Congress amended Rule 11 to its current version in large part because it was being abused by defendants in civil rights cases who filed a series of Rule 11 motions to harass the men and women who dared to challenge unjust discrimination and impede meritorious claims.

Now, a bill under consideration in the U.S. House of Representatives (known as the "Lawsuit Abuse Reduction Act") threatens to undermine the carefully crafted standards for sanctioning attorneys and go back to the version of Rule 11 in place before 1993 that would force litigants to operate under terms that were used to punish and deter valid claims of discrimination.

Expressing his concerns about the former Rule 11, the Honorable Robert L. Carter, United States District Court Judge for the Southern District of New York, noted:

“I have no doubt that the Supreme Court’s opportunity to pronounce separate schools inherently unequal [in Brown v. Board of Education] would have been delayed for a decade had my colleagues and I been required, upon pain of potential sanctions, to plead our legal theory explicitly from the start.”

Federal Judiciary Opposes Going Backward

The vast majority of the federal judiciary opposes going backward on Rule 11. The Judicial Conference of the United States, headed by the late Chief Justice Rehnquist, clearly stated in a letter to the U.S. House of Representatives Judiciary Chair that "the proposed changes to Rule 11 will not help deter litigation abuses, but will increase satellite litigation, costs, and delays."

The letter also notes there is "a remarkable consensus" among Federal district court judges in opposition to changing the rule. A recent poll of federal judges conducted by the Federal Judicial Center found that more than 80 percent of judges said the current Rule 11 was "needed and just right as it now stands," and that, "87 percent preferred the current rule to the version in effect between 1983 and 1993 or the rule as it would look under the Lawsuit Abuse Reduction Act."

Judicial Experts In Their Own Words

A review of the expert criticisms of the 1983 version of Rule 11 confirms that the 1983 version of Rule 11 as proposed in Congress unfairly targeted civil rights plaintiffs:

• "A Congress considering reinstating the fee-shifting aspect of Rule 11 in the name of tort reform should understand what it will be doing. It will be discouraging the civil rights cases disproportionately affected by old Rule 11 in the name of addressing purported "abuse" in an area of law, personal injury tort, found to have less abuse than other areas." (Prepared Testimony of Professor Theodore Eisenberg, Professor of Law, Cornell University, submitted in House Committee on the Judiciary Oversight Hearing, June 22, 2004, pg. 21.)

• "our evidence tends to confirm the commentary about Rule 11's disproportionate impact on civil rights." (The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 966.)

• "The researchers found that the most interesting findings related 'to the frequency of civil rights cases as compared to other types of cases. Although civil rights cases made up 11.4% of federal cases filed, our survey shows that 22.7% of the cases in which sanctions had been imposed were civil rights cases.' Of more immediate interest is the disproportionately low rate of sanctions in personal injury cases…personal injury cases constitute 19.2% of cases filed but…they account for only 15.1% of Rule 11 sanctions. Thus, personal injury cases were found to be the subject of abuse at a rate less than that present in other civil litigation." (Prepared Testimony of Professor Theodore Eisenberg, Cornell University, submitted in House Committee on the Judiciary Oversight Hearing citing Lawrence C. Marshall et al., The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943 (1992).)

• "…24% of civil rights plaintiffs' lawyers reported that they had not filed particular papers in a given case that they would have liked to file, compared to 10% of those doing civil rights defense work." (The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 970.)

Updated October 17, 2005