Persuading Courts to Impose Sanctions
By Douglas J. Pepe
Each state has its own sanctions powers, often modeled after those in federal court. Federal sanctions law is a tangled web. Each rule covers a limited sphere of conduct and has unique requirements, yet some rules overlap with others. Some of the most egregious conduct faced every day by courts and litigants is not covered at all. The omnipresent inherent power is both broader in scope and more circumspectly applied than the rules and can be used to fill the gaps when the rules fall short.
Rule 11. Surprisingly narrow and frequently misused, Rule 11 imposes two basic categories of duties: when presenting a paper to the court, the presenter certifies that (1) the paper is not presented for an improper purpose; and (2) reasonable inquiry was made into the factual and legal contentions made. These are not high hurdles, and the touchstone is not the ultimate merit of the arguments (unless the arguments are so entirely frivolous that the absence of factual or legal inquiry is obvious).
If you want attorney fees, Rule 11 is not the best place to start. The rule authorizes the imposition of deterrent, not compensatory, sanctions. Attorney fees are awardable only if “warranted for effective deterrence” (Rule 11(c)(4)). Other sanctions powers, like 28 U.S.C. § 1927 or the inherent power of the court, are not so limited.
If you face discovery misconduct on the part of your opponent, don’t use Rule 11. It has nothing to do with discovery. Rule 11 was amended in 1993 to make this clear. See Rule 11(d). Look instead to the discovery sanctions rules—Rules 26(g), 30(d), and 37—or, absent a governing rule, the court’s inherent power.
If you’re dealing with something other than a paper presented to the court, don’t use Rule 11. Letters exchanged between counsel are not covered. Misrepresentations in settlement discussions or communications are not covered. Oral motions, no matter how baseless, are not covered. Misconduct during trial is not covered. Your adversary can flat out lie about the law and the facts at oral argument. If your opponent is not advocating a position taken in his brief, he is free from the grip of Rule 11 (but behold the wrath of the court’s inherent power!).
