When I first started on the bench, my deputy clerk walked into chambers with a six-inch-thick emergency motion to dismiss. I looked at her skeptically and said, “Seriously? How can you have an emergency motion to dismiss?” Then I read it.
A man had received a money judgment against another man for hundreds of thousands of dollars, and in response to every effort to collect the judgment, the defendant filed a new lawsuit against the victorious plaintiff. Attached to the motion were six complaints, all of which had been dismissed as vexatious filings. They spanned the country from the East Coast to the West and a few districts in between. What was most remarkable was an email exhibit wherein the losing defendant threatened that he would continue to file these lawsuits requiring the plaintiff to pay for an attorney to fly in, file the motion to dismiss, and get the case dismissed. The threat was that this would continue until the plaintiff paid the same amount of the money judgment as he had won in court against the filer. Wow.
So when the parties appeared and I confronted the filer with his own email and he admitted he had sent it and that he had filed the previous six suits, I dismissed the case. I also sanctioned him—making him pay for the plane ticket, the hotel, and the attorney’s time in preparing the motion. As I was ruling, the attorney who had flown in to get the case dismissed looked up at me as though I was an apparition. He had such shock on his face that I asked him if he was feeling OK. “Yes,” he blurted out. “It’s just that no one has ever sanctioned him!” It seemed like an obvious slam dunk to me. Of course, he was correct in that all of the previous six lawsuits were dismissed without any penalty. “Well, it is just the right thing to do,” I responded.
After the hearing, I joined a small group of judges for lunch in the cafeteria. Having been on the bench only a matter of weeks, I casually asked them, “How many times have you sanctioned someone?” I did not reveal that I had done so twice in my first few weeks on the bench. But that look of shock on the lawyer’s face made me second-guess what I had done. Had I made a mistake? Was I a rogue judge?
One judge, who has been on the bench for 30 years, said, “I think twice.” Another said, “Never.” A third, “I probably have but I can’t think of a time I did.” I raced back to Westlaw to research sanctions. After a few hours, hmm, I thought, you are fine. So what gives?
Now 13 years later, I think that is what most lawyers are asking. When do judges impose sanctions? When can I ask for sanctions? What is the line in the sand that judges draw?
Truth is, just about every motion to compel in my district ends with a prayer for relief that includes sanctions. That is a lot of motions for sanctions. So I gathered a group of judges and asked them when they give sanctions and why. Of course, I am keeping them anonymous, but suffice it to say there were six of them with time on the bench from five years to 30 years.
The Consensus on Sanctions
First, you should know that the word “sanctions” in itself had different meanings for the judges. Most did not consider any financial penalty imposed on a party for violating a discovery rule or deadline a “sanction.” One said simply, “The rule provides for it, so I don’t really think of that as a sanction.” Another said, “If I am imposing a financial penalty that is, for example, the cost of filing the motion, I don’t consider that to be a sanction. I think of ‘sanctions’ as a term to be used when you are ordering a penalty due to a lawyer’s behavior.” This makes sense, of course, because many sanctions are authorized by the rules of civil procedure. See, e.g., Fed. R. Civ. P. 37(b) (discovery violations), 16(f) (failure to obey a scheduling or other pretrial order), 41(b) (dismissal for failure to comply with rules or court order). So, when discussing sanctions, most judges think of those that are within the “inherent authority of the court.”
Second, there appeared to be consensus from all of the judges that I interviewed that any “intentional” violation was worthy of sanctions. That being said, not all were comfortable imposing them. Citing concerns about not knowing how to ascribe a monetary value to an act, the fear of affecting an innocent party due to his or her lawyer’s actions, and a general sense that a monetary sanction is imposed only for the most egregious violations, a number of judges were willing to put up with a certain amount of, shall I say, misconduct. When I asked them if they had ever referred a lawyer to the Attorney Discipline and Registration Commission (as is required by Illinois law for attorneys who are aware of violations of the Rules of Professional Conduct), only one judge replied that he had.
Third, all the judges believed it was necessary to sanction if the conduct was egregious in order to preserve the respect for the court, the integrity of the justice system, and the norms of professionalism. I should note, that when the judges did impose sanctions, they did so on a thorough record. Many held hearings, many asked for supplemental briefing, and all wrote opinions documenting the evidence of the misconduct.
There was also universal consensus that requests for sanctions were sought too often and flippantly. One judge noted about a lawyer, like the boy who cried wolf, “Oh, she always asks for sanctions.” Yet, each judge believed that an appropriately placed request for sanctions was a matter that the judge took seriously and thought was an essential part of preserving the integrity of the court. Facts mattered. When a party submitted a motion with exhibits that supported each allegation, the judge was in a position to recognize the seriousness of the allegation. When looking for that line in the sand, I would say the best analogy would be the cases on spoliation. Was the act negligent? Was it reckless? Was the statement to the court material? What was the impact of the conduct on the litigation as a whole? Was there prejudice to the other side? How much harm has been inflicted on the profession for this type of conduct?
Yet, lawyers know that the devil is in the details. It’s easy to answer “yes” to the question “Would you impose sanctions on an attorney who intentionally attempted to defraud the court?” It’s much harder to analyze that attempt when the attorney standing in front of you is offering reasons from overwork to “my secretary made the mistake.” So I pushed a little harder with my colleagues and got some interesting responses. One said it’s like the difference between a red card and a yellow card in soccer. In one case, an attorney directly denied saying something particularly damaging in a Title VII case. The attorney told the judge, “I never said that.” The judge found otherwise and was particularly disturbed by the attorney’s lack of candor to the court. “Mistakes were made,” said the lawyer. Red card.
A Distaste for Sanctions
Perhaps not surprisingly, nearly all judges that I spoke with described a distaste for imposing sanctions. One said, “I am sanction allergic.” Others explained that we are expected to be patient and open-minded, so reacting with sanctions immediately strikes against that image. For example, one judge said, “For me, it’s three strikes and you’re out.” So, essentially, an attorney must violate the rule twice before being sanctioned. One judge even commented that we see so much behavior that is worse than what attorneys ask us to sanction, we become inured to it. Others chimed in, “No, you have to be so careful.”
So true. Judges in my district and others in the Seventh Circuit just received some helpful guidance from Evans v. Smith, 932 F.3d 1043 (7th Cir. 2019). There, the district court dismissed a pro se prisoner’s civil rights suit because the prisoner refused to be deposed at the correctional institution because he had not received notice of the deposition. As is the requirement of the prison, the judge had entered an order permitting the defendants to depose the incarcerated plaintiff at the prison. Finding that the inmate had violated the court’s order, the judge dismissed the case as a sanction.
Not so fast, held the Seventh Circuit. In a helpful opinion delineating the distinction between a sanction imposed under Rule 37 and a sanction imposed pursuant to the inherent authority of the court, Judge Wood, writing for the panel, held that lesser sanctions should be considered first before imposing the ultimate sanction of dismissal. Judge Wood wrote:
Dismissing a case with prejudice is one of the harshest sanctions a court can impose, and so courts must be especially careful before taking that step. Even in the case of an indigent prisoner for whom a high-dollar fine might be inappropriate, other sanctions, including those listed in Federal Rule of Civil Procedure 37(b)(2), are available: for example, a warning from the court, a small financial sanction, taking certain facts to be established in favor of the party that secured an order compelling discovery, or dismissal without prejudice. One of these will often be enough to deter and punish misconduct. And the gravity of the misconduct must always inform the choice of sanction.
Id. at 1048; see also Ridge Chrysler Jeep v. Daimler Chrysler Fin. Servs., 516 F.3d 623, 626 (7th Cir. 2008) (affirming dismissal of case as a sanction: “Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed.”).
After my survey, I had a few conversations about the results with litigators, who expressed frustration at the shortage of judges who impose sanctions, essentially complaining that they follow the rules, work hard to do so, and are faced constantly with others who don’t follow the rules while judges allow it to happen. It reminded me of a quote from Huckleberry Finn when Huck asks, “What’s the use you learning to do right when it’s troublesome to do right and ain’t no trouble to do wrong, and the wages is just the same?” Hmm. I think my casual surveys are not done. Next time, I’m going to get the lawyers’ perspective. As one judge said to me, “I’d really like to know if that is a prevalent thought. Maybe they need to educate us.”
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