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Clay Rossi
Clay Rossi
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Mistakes of the 1980s: New Coke, Suzuki Samurais, and The Old Rule 11

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There’s a biblical proverb that comes to mind: “As a dog returns to its vomit, so fools repeat their folly.” Here the dog is Congress and the vomit is a revival of the draconian strictures of the 1983 version of Federal Rule of Civil Procedure Rule 11 which were abandoned in the 1993 amendments.  Mind you, the 1983 version of Rule 11 has been characterized as “one of the most ill-advised procedural experiments ever tried.” The proposed return to the bad ol’ days is being pushed under the guise of tort reform. Like a Richard Burton/Elizabeth Taylor marriage (or Eminem and Kim Scott if the former reference is too dated for some), there is no reason to think that things will be any better the second time around. The vehicle for this abysmal proposed change is H.R. 2655 named the “Lawsuit Abuse Reduction Act” or  LARA. The proposed amendment removes the discretionary function of the judge and makes Rule 11 sanctions mandatory. Accordingly, Congressman Matt Cartwright, as an attorney who has lived under Rule 11, addressed this regressive measure on the House floor and warned against the inevitable mess it will create.

That the former Rule 11 was unworkable (if your idea of “work” is the Rules’ aspirational goal of a “just, speedy, and inexpensive determination of every action”) was not a close judgment call. In a 1999 law review article Theodore C. Hirt addressed the subject and included damning comments from the Advisory Committee on Civil Rules concerning the 1983 amendment:

(1) Rule 11, in conjunction with other rules, has tended to impact plaintiffs more frequently and severely than defendants; (2) it occasionally has created problems for a party which seeks to assert novel legal contentions or which needs discovery from other persons to determine if the party’s belief about the facts can be supported with evidence; (3) it has too rarely been enforced through nonmonetary sanctions, with cost-shifting having become the normative sanction; (4) it provides little incentive, and perhaps a disincentive, for a party to abandon positions after determining they are no longer supportable in fact or law; and (5) it sometimes has produced unfortunate conflicts between attorney and client, and exacerbated contentious behavior between counsel. In addition, although the great majority of Rule 11 motions have not been granted, the time spent by litigants and the courts in dealing with such motions has not been insignificant.

Sounds peachy, doesn’t it? Well, as a bonus, what if you reduced the number of depositions under the Federal Rules from 10 to five with a maximum length of four hours and also dropped down the number of interrogatories to 15. All of this amounts to a tilted-table and a thumb-on-the-scale. LARA and other “reform” measures aren’t about separating the wheat from the chaff, they are a policy of scorched earth where lawsuits, any lawsuits, are the enemy. The very idea that a corporation could be brought to heel by a lowly individual armed with a complaint is anathema to the behind-the-scenes promoters of such measures. They believe they are entitled to be immune from suit and act with impunity towards all.

In Alabama our state motto is Audemus Jura Nostra Defendere  or “We Dare Defend Our Rights.” If LARA and her friends prevail, soon it may only be the daring who venture into court.