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Civil Procedure: Ethical Constraints on Pleading

Let’s talkabout the ethical constraints on pleading. We’ve looked at three cases and I’ll just share their holdings before getting into a nice overview of Rule 11.

 The first case is McCormick v. Kopmann in which the court held that a party can state two or more statements, regardless of consistency, in the alternative or hypothetical when the party is in doubt. A bad alternative doesn’t affect a good one. Alternative fact allegations made in good faith and based on genuine doubt aren’t admissions against interest so as to be admissible in evidence against the pleader.

 The next case is Business Guides v. Chromatic Communications Enterprises in which the court held that the standard of conduct under Rule 11 is one of objective reasonableness which includes conducting a reasonable inquiry (more on this later).

 The final case is Moore v. Keegan Management Co. Here, the court held that sanctions must be imposed on the signer of a paper that is frivolous, meaning a filing that’s both baseless and made without a reasonable and competent inquiry.

 Having looked at these holdings, we can look at Rule 11. There are three parts to Rule 11. Part (a) says that every pleading, motion, and paper has to be signed. Part (b) requires certification that the document was prepared after reasonable inquiry and to the best of the signer’s knowledge. Part (b) has three subparts: 1) the document isn’t for improper purposes, 2) non-frivolous, 3) the legal contentions have adequate support, and 4) the factual contentions have adequate support. The final part, Part (c) says that if a document not meeting (a) or (b) isn’t withdrawn 21 days after service, the court may impose sanctions. Since Part (a) is pretty straight-forward, let’s look at Part (b), the guts of the rule.

 Certification after the inquiry is to be reasonable under the circumstances. Those circumstances include time expediency, the track record with the client, red flags, etc. An example of time expedience is in Business Guides. There, the client wanted a temporary restraining order which means time was of the essence. The court was forgiving of errors made that early in the game, but not so much when errors persisted. Now, there is a split of authority on whether a reasonable inquiry is an independent requirement. The Moore majority said that a reasonable inquiry isn’t an independent standard. That means that I can take a shot in the dark with a claim and if it happens to be on the mark, I wouldn’t be sanctioned.

 Subpart 1 says that the document isn’t for an improper purpose. Such purposes include harassment of opponents, multiplying litigation costs, and publicity and media attention. Subpart 2 says that the document can’t be frivolous. Factors in determining whether a document is frivolous include the plain language of the governing law, prominence, number and date of decisions on point, level of support in those decisions, etc. For Subparts (3) and (4) the reasonable inquiry will dictate the basis of allegations and denials. If you’re not sure of things, you need to use the alternative or “likely to have” language because those standards are applicable only if the issue is expressly designated as such.

 In Part (c), the rule gives us a 21 day grace period to change or withdraw the document. The goal is to reduce satellite litigation. Further, it’s important to notice that there’s a sua sponte exception which means the court can, on its own accord, impose sanctions when it wants. The sanction is limited to what is sufficient to deter the behavior. The standard sanction is the award of reasonable attorney fees, but fines or non-monetary sanctions are also available.


November 8, 2006 - Posted by | Civil Procedure

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