Sanctioning Legal Organizations Under the New Federal Civil Rule 11: Radical Changes Loosen More Unforeseeable Forces
Parness, Jeffrey A.
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Prompted by their perception that significant civil litigation misconduct involving frivolous papers was occurring in federal trial courts, the federal judicial rulemakers first effected a major overhaul of Rule 11 of the Federal Rules of Civil Procedure in 1983. The changes in the rule, which had remained unamended since 1938, greatly expanded the circumstances under which sanctions for frivolous papers might be imposed. The changes led to a "cottage industry of routine sanctions motions" for litigators and to "a cottage industry of writing about Rule 11" for academicians. One distinguished observer noted that the rulemakers had undertaken "radical changes in direction" that loosened unforeseen forces. Rule 11 was again overhauled in 1993. These amendments, founded on both anecdotal and empirical evidence about the 1983 Rule, dampened the cottage industries. But new industries emerged, as once more the civil rulemakers undertook radical changes with unforeseen consequences. One such change involved new institutional responsibilities for legal organizations, including private law firms, in-house corporate legal departments, and public offices housing such officials as attorneys general or agency commissioners. This article examines the new loosened forces, arguing that the 1993 Rule provides unprecedented opportunities for effective judicial oversight of the litigation practices of legal organizations extending beyond any oversight that might be undertaken in disciplinary or tort settings.