Academic journal article The Review of Litigation

The Lawsuit Abuse Reduction Act: The Legislative Bid to Regulate Lawyer Conduct

Academic journal article The Review of Litigation

The Lawsuit Abuse Reduction Act: The Legislative Bid to Regulate Lawyer Conduct

Article excerpt


Let me just begin by saying how honored I am to be here. I have long admired The Review of Litigation-and many of you in this room probably already realize this-because it manages to straddle that fence between high theory and hard practical reality. For those of us who are interested both as lawyers and academics in procedure, the journal's ability to balance both of these different positions has been invaluable. This certainly has been the case as to The Review's previous record of publishing articles concerning certification and sanctions regimes, such as Rule 11 of the Federal Rules of Civil Procedure. Over the years, The Review has published a number of very important and insightful papers on Rule 11 and the comparable state sanctions provisions here in Texas (Rule 13 of the Texas Rules of Civil Procedure and Chapter 10 of the Civil Practice and Remedies Code). It is a real credit to The Review that they have been able to attract and publish such important work.1

Speaking about the cross between high theory and hard practical reality, I think you can't pick a better example than Rule 11 to illustrate a procedural subject that manages to reside comfortably in both of theses camps. Reflecting on the debate that has gone on over the years regarding Rule 11 is like looking through a window right into our own litigation soul.2 It's the kind of debate that takes place not just in law journals among academics but very much is a subject that matters to lawyers in everyday litigation decisionmaking. It also bears enormous significance in terms of how we structure our civil justice system. Rule 11 is a reflection of prevailing attitudes about how best to police and regulate lawyer behavior. The rule is a key tool employed for regulating excessiveness and, in some essential ways, deterring that which we'd like to see expunged from the system. Of course whether regulation through Rule 11 is as effective as other available mechanisms in addressing abuses in litigation is a question that is hotly debated. I will have much more to say about this in a moment.

We are at a significant crossroads right now regarding Rule 11 because the Congress has been debating legislation-the Lawsuit Abuse Reduction Act (LARA)-that would supersede the existing rule.3 In 2005, LARA passed the House of Representatives overwhelmingly;4 the House previously passed an earlier and very similar version of this same bill a couple of years ago.5 The bill has not yet gone up for a vote in the Senate and it is not clear what its prospects are for passage. The legislation is not at the top of the agenda of the Republican leadership in the Senate at the moment; but there are good reasons for thinking it may gain legislative momentum in the not too distant future.6


Before saying more about what LARA would do, it is valuable to take a couple of minutes to talk about where we have been first. There have only been three significant constitutive textual events in regard to Rule 11: its enactment in 1938, and amendments adopted in 1983 and 1993. The 1938 version of the rule remained unchanged until 1983. That Rule 11 remained unchanged for nearly half a century is not too remarkable. As Richard Marcus and others have reminded us, these first fifty years were a period of time in which there was relatively little tinkering with the rules.7 That said, we may also consider how infrequently the rule was invoked during these years to see what an obscure and basically unused provision was this original version of the rule.

As Professor Peter Joy has noted, from 1938 to 1976 there were only nineteen reported Rule 11 decisions and of those there were only eleven occasions when a violation of Rule 11 was found; and of those eleven times, sanctions were only awarded in three cases.8 With that kind of a background it is not surprising that lawyers were not running to invoke the rule. Peter Joy calls this version "nothing more than a blinking yellow light on the litigation road. …

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