May 01, 2015

House Judiciary Committee approves Rule 11 legislation

The House Judiciary Committee approved ABA-opposed legislation May 14 that would amend Rule 11 of the Federal Rules of Civil Procedure to require, rather than permit, the imposition of monetary sanctions against lawyers for filing non-meritorious claims.

H.R. 758, approved by a vote of 19-13, would circumvent the Rules Enabling Act to eliminate provisions adopted in 1993 authorizing, but not requiring, the imposition of sanctions and allowing parties and their attorneys to avoid sanctions by withdrawing frivolous claims within 21 days after a motion for sanctions is served. The current system, which gives judges the option to sanction parties, replaced a mandatory sanctions provision that was in place from 1983 to 1992 but had been shown to increase non-meritorious lawsuit filings rather than reduce them.

Sponsors of the bill maintain that the legislation will reduce frivolous lawsuits by restoring accountability to the legal system.

In a letter to the committee, ABA Governmental Affairs Director Thomas M. Susman wrote that the ABA opposes enactment of H.R. 758 for three main reasons: the legislation would circumvent the Rules Enabling Act that Congress established for amending the Federal Rules of Civil Procedure; there is no demonstrated evidence that  the existing Rule 11 is inadequate and needs to amended; and, by ignoring the lessons learned from 10 years of experience under the 1983 mandatory version of Rule 11, Congress incurs the substantial risk that the proposed changes would encourage additional litigation and increased court costs and delays.

He explained that the Rules Enabling Act, which would be bypassed by the bill, establishes a demanding process for amending the Federal Rules of Civil Procedure. Under that act, the Judicial Conference of the United States drafts proposed rules and amendments, makes them available for public comment and submits them to the U.S Supreme Court after Judicial Conference approval. The Supreme Court transmits the proposals to Congress, which retains the final authority to reject, modify or defer any rule or amendment before it takes effect.

In contrast to the time-proven and exhaustive Rule Enabling Act process, the legislation “proposes to amend the federal rules over the objections of the judiciary on an ad hoc basis that relies on anecdotes rather than empirically based evidence and fails to examine how the proposed changes will affect the administration of justice,” Susman wrote.

He emphasized that the ABA’s objective in opposing H.R. 758 is not to stifle discourse on the underlying issues.

“While we do not believe that Rule 11 requires amendment, we respect that some members of Congress are deeply concerned that frivolous lawsuits are adversely affecting the administration of justice and believe that their concerns and proposed solutions deserve a full and robust examination.” The best way to accomplish this, he said, is to defer to the Rules Enabling Act process, which will assure a comprehensive and evidence-based development of any remedial proposal.

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