House Rule 11 Revision Likely to Harm Civil Rights
Plaintiffs & Attorneys
On Sept. 8, the House Judiciary Committee approved H.R. 4571,
the Lawsuit Abuse Reduction Act. HR 4571 will gut procedural
safeguards in Federal Rule of Civil Procedure 11 that protect
civil rights plaintiffs, the attorneys, and others from
abusive Rule 11 motions. This includes parents of children
with disabilities, and others who file civil actions in
federal court. The bill is headed for the House Floor this
coming week.
The bill would restore the now-discredited 1983 version of
Rule 11. The old rule had become a large-scale fee-shifting
device focused on compensating those who won Rule 11 motions,
rather than deterring misconduct generated costly satellite
litigation as counsel challenged
sanctions; disproportionately penalized civil rights
plaintiffs and their lawyers (as well as other kinds of
plaintiffs without the resources to litigate sanctions
actions) -- and improperly chilled and deterred meritorious
claimsnot just frivolous ones.
If H.R. 4571 is going to the House Floor next week, the best
thing people can do is CALL and FAX their Congresspeople,
202-224-3121, and tell them to vote No. Congress is probably
recessing on Oct.1 and then coming for a 2-week lame duck
session after Thanksgiving. Since this is a very
short bill, it could easily be added to one of the omnibus
acts during the lame duck.Alternatively, it could be an
election stunt designed to pass the House but not get through
the Senate.
The bill is being reported in the news as a bill that limits
frivolous personal injury cases and people suing McDonalds
over hot coffee; there is no mention of Rule 11. So, its a
true stealth bill.
Under the old Rule 11 (which this bill would re-create in
part), courts disproportionately awarded sanctions against
civil rights plaintiffs, according to at least four
statistical analyses. For example, civil rights cases made up
11.4% of federal cases but 22.7% of sanctions awards in the
American Judicature Society study. Commentators have also
spoken about the disproportionate effect on civil rights
cases.
The old rule had an in terrorem effect, chilling civil rights
plaintiffs and their attorneys, causing them to abandon
potentially meritorious claims, since they lacked the
resources to risk sanctions and litigating appeals that they
could lose. An American Judicature Society study found
that 31% of civil rights plaintiffs attorneys had foregone
asserting a claim they felt had merit (versus 19.3% of counsel
overall), and 24% forewent filing papers they would have liked
to have filed, because of Rule 11 fears. The situation was
significant enough that by 1987, the Center for Constitutional
Rights even launched a project to provide pro bono
representation for public interest lawyers facing Rule 11
sanctions.
The 1983 rule was replaced in 1993 by the current Rule
11--after years of careful study by the Advisory Committee on
the Civil Rules of the Judicial Conference of the United
States and then Supreme Court approval. The new Rule 11
includes procedural safeguards that stopped the abuse and got
rid of a great deal of Rule 11 activity. By contrast, the
House bill, getting rid of these safeguards, has moved through
Committee in less than 4 months.
HR 4571 gets rid of at least 3 very important safeguards: the
bill makes sanctions mandatory, not discretionary; it
eliminates the safe harbor, so Rule 11 movants will not need
to warn their adversaries of a Rule 11 motion (allowing the
pleader to withdraw it); and it puts an emphasis
on compensating the Rule 11 movant for his/its attorneys fees,
instead of limiting sanctions to he amount sufficient to deter
misconduct.
The description of what HR 4571 does comes from the press
release accompanying the bill on September 8. The Sept. 8
version of the bill is not yet available on
http://www.congress.gov. A June version was, but it's not
clear if this is the final bill or not. The June version would
get rid of
additional safeguards, including allowing the court to impose
non-monetary sanctions or an order to pay the sanctions into
the court, and the provision that applies Rule 11
frivolousness sanctions only to counsel--not parties
themselves. I don't know if these are also in the
bill as approved by the Committee or not.
The Sept 8 bill also contains an amendment that mandates a
1-year suspension of a law license after a lawyer has filed 3
or more frivolous lawsuits in the same federal court. A
frivolous lawsuit is not that easy to identify; a Federal
Judicial Center study found that 19% of Rule 11
reversals were because the underlying claim was
meritoriousnot frivolous. That's a high rate of
false-frivolousness to risk. The real secret of Rule 11 is
that we don't really know what frivolousness really means. So,
we imposed a number of procedural safeguards that limit abuse
of the rule instead. it is those safeguards that this Rule
directly attacks.
If you feel like calling your Congressperson, its probably a
good idea. This is a pretty evil bill and Rule 11 shouldn't be
rewritten without at least the years of study that the 1993
bill had. And if they are going to rewrite it, they need to be
honest and forthright about what they are
doing, instead of hiding under news stories about McDonalds
and hot coffee. We literally found this bill by accident.
