Report from Governmental Affairs

Standing Pat On Rule 11

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A bill’s sponsors in Congress have titled it the Lawsuit Abuse Reduction Act, but the ABA is voicing concern that established procedures for revising rules in federal and state courts would get roughed up if the measure passes.

In its current form, Rule 11 of the Federal Rules of Civil Procedure gives judges in federal cases discretion to decide whether to impose sanctions against attorneys who file lawsuits or motions that are not well-founded in fact or law. The rule also includes a “safe harbor” provision that allows a filing to be withdrawn within 21 days after it is challenged by opposing counsel.

If passed, the Lawsuit Abuse Reduction Act would replace judicial discretion with mandatory sanctions against attorneys for frivolous filings in federal cases and eliminate the safe harbor provision. The bill also would apply those Rule 11 provisions to civil cases related to interstate commerce that are in state courts.

The bill passed the House of Representatives during the 108th Congress (in 2003-04), but did not come to a vote in the Senate. The bill was reintroduced in the House this year by Rep. Lamar S. Smith, R-Texas.

The ABA opposes the bill because it seeks to circumvent the process for amending federal court procedures set forth in the Rules Enabling Act. The ABA also opposes the bill on grounds that it would violate principles of federalism by imposing the changes in Rule 11 on certain cases filed in state courts.

The ABA further opposes language in the bill that would impose venue restrictions for personal injury lawsuits filed in either state or federal courts.

“This piece of legislation is particularly offensive not only because it is being offered without the benefit of the federal Rules Enabling Act, but also because certain of its provisions violate our time-honored principles of federalism,” says Dennis J. Drasco of Roseland, N.J., who chairs the ABA Section of Litigation.

In February, the Litigation Section and the Tort Trial and Insurance Practice Section, chaired by James K. Carroll of New Orleans, co-sponsored a recommendation that the ABA’s policy-making House of Delegates oppose the changes to Rule 11 being considered by Congress. The House approved the recommendation in a voice vote.

Wrong Ends, Wrong Means

Pursuant to that policy, the ABA maintains that there is no demonstrated reason to amend the frivolous filing provisions in Rule 11. (The U.S. Judicial Conference also favors Rule 11 in its current version.)

Moreover, the ABA says, the proposed legislation seeks to bypass established and viable guidelines for revising the Federal Rules of Civil Procedure that were established by Congress in the Rules Enabling Act. That process recognizes that the judiciary is in the best position to initiate changes in procedural rules, even though Congress holds the ultimate veto power over them.

At the same time, the federal process should not be used by Congress to dictate changes in court rules for the states, the ABA says. In the association’s view, Governmental Affairs Director Robert D. Evans says, “it should remain solely within the purview of the individual states to establish local rules for procedures, whether through their state legislatures or through a grant of rule-making authority to their state judiciary.”


This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

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