Last year, I wrote a few posts intended to provide information - facts and figures - you can use when you hear someone making claims - claims that are widely held - but that are not true. The problem with these false ideas is that they lead to legal and social changes that have bad consequences. For example, in the 108th Congress, the House of Representatives passed H.R. 4571, the Lawsuit Abuse Reduction Act of 2004. It did not pass the Senate.
So let's talk a bit about the supposed avalanche of frivolous lawsuits. This claim is being used to cut back on the right to sue for all sorts of even very serious injuries.
The McDonald's Coffee Case is certainly the poster child for the idea that we are awash in frivolous cases. I discussed the truth about the McDonald's Coffee Case last year. Click on that link and read about it and then come back, or take a look at it later.
Consider, if there were an onslaught of frivolous lawsuits crowding our dockets, wouldn't you expect judges to be aware of the problem and even active in demanding a solution to the problem? Who better to know what a case is really about and whether it is frivolous or notl?
In fact, there is a study that asked judges about this issue conducted by the Federal Judicial Center. Never heard of the Federal Judicial Center? Well, here is a description:
The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620-629), on the recommendation of the Judicial Conference of the United States. The many specific statutory duties of the Center and its Board fall into a few broad categories:
o conducting and promoting orientation and continuing education and training for federal judges, court employees, and others;
o developing recommendations about the operation and study of the federal courts;
o conducting and promoting research on federal judicial procedures, court operations, and history.By statute, the Chief Justice of the United States chairs the Center's Board, which also includes the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.
Hardly folks who could be called wild-eyed radicals.
In 2005, they issued a report on sanctionable behavior, and that includes the filing of frivolous lawsuits: Report of a Survey of United States District Judges’ Experiences and Views Concerning Rule 11, Federal Rules of Civil Procedure by David Rauma & Thomas E. Willging
The study - a survey of most of the federal judges - was performed, because many were claiming that frivolous lawsuits were common and that Federal Rule of Civil Procedure R. 11 needed to be beefed up. Rule 11 provides for sanctions for litigants, lawyers, and lawfirms who file suits where they have not done reasonable investigation into the facts and law and where there is not factual and legal support for their filings. Or as the study describes Rule 11.
As currently written, Rule 11 expressly authorizes judges to impose sanctions on lawyers and parties who present to a district court a pleading, written motion, or other paper without reasonable support in fact or law or for an improper purpose, such as to cause unnecessary cost or delay. Rule 11 provides that sanctions for violations are within the judge’s discretion; that a party should have a period of time, a “safe harbor,” within which to withdraw or correct a filing alleged to violate Rule 11; and that Rule 11’s primary purpose is to deter future violations and not necessarily to compensate the opposing party for losses, including attorney fees.
Here is the study abstract:
A report of the results of a survey completed by 278 of 400 (70%) federal district judges in the winter of 2004-05. The Center conducted the study at the request of the Judicial Conference's Advisory Committee on Civil Rules. A questionnaire elicited the judges' experiences and opinions about the merits of past and current versions of Federal Rule of Civil Procedure 11 and about a legislative proposal to modify Rule 11. The judges expressed a strong preference for Rule 11 in its current form.
The study asked judges whether frivolous lawsuits were a problem. The overwhelming majority said no.
The views of judges who responded to the survey are likely to be related to their estimation of the amount of groundless civil litigation they see in their own docket, especially when focusing on cases where the plaintiff is represented by counsel. Approximately 85% of the district judges view groundless litigation in such cases as no more than a small problem and another 12% see such litigation as a moderate problem. About 3% view groundless litigation brought by plaintiffs who are represented by counsel as a large or very large problem. For 54% of the judges who responded, the amount of groundless litigation has remained relatively constant during their tenure on the federal bench. Only 7% indicated that the problem is now larger. For 19%, the amount of groundless civil litigation has decreased during their tenure on the federal bench, and for 12% there has never been a problem.
What is most interesting is that judges appointed more recently feel that way most strongly.
The overwhelming result was that Rule 11 sanctions should not be amended to be made harsher. Here are the more detailed results:
More than 80% of the 278 district judges indicated that “Rule 11 is needed and it is just right as it now stands.” In evaluating the alternatives, 87% of the respondents preferred the current Rule 11, 5% preferred the version in effect between 1983 and 1993, and 4% preferred the version proposed in H.R. 4571.
Judges’ opinions about specific provisions in Rule 11 and the proposed legislation followed a similar pattern. The results indicated that relatively large majorities of the judges who responded to our survey have the following views about Rule 11:
• 85% strongly or moderately support Rule 11’s safe harbor provision;
• 91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;
• 84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation.
I cannot provide a link that gets you directly to the study. You can find it by going here and doing a search for sanctions.
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