Legislation & Lobbying

ABA letter says tort reform bill could actually increase litigation

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The ABA today urged members of Congress to oppose a bill that seeks to reduce frivolous lawsuits—but which, the ABA Governmental Affairs Office says would actually increase litigation.

The letter (PDF), signed by ABA governmental affairs director Thomas Susman, opposes H.R. 758, named the Lawsuit Abuse Reduction Act, which would reinstate mandatory sanctions for filing frivolous lawsuits in federal court. Currently, such sanctions are imposed at a judge’s discretion. It also eliminates a “safe harbor” provision giving parties a chance to withdraw their claims within 21 days of a sanctions motion.

The disputed provision of Rule 11 of the Federal Rules of Civil Procedure was adopted in 1983 but dropped 10 years later, according to the letter. During a prior attempt to pass this legislation, in 2013, Susman wrote in a letter (PDF) that “an entire industry of litigation revolving around Rule 11 claims inundated the legal system.” According to a 2004 letter from the U.S. Judicial Conference, the mandatory rule encouraged meritless Rule 11 motions by creating a possibility of monetary sanctions. It also, the Judicial Conference wrote, created an incentive not to withdraw a meritless case and thus admit a mistake that could lead to sanctions.

“By ignoring the lessons learned from 10 years of experience under the 1983 mandatory version of Rule 11, Congress incurs the substantial risk that the proposed changes will harm litigants by encouraging additional litigation and increasing court costs and delays,” Susman writes today.

The ABA also opposes the bill because it was drafted without the input of the Judicial Conference. The Rules Enabling Act was passed to give the conference input into changes to the Federal Rules of Civil Procedure. By contrast, the letter says, the Judicial Conference objects to HR 758.

Finally, the letter says, there’s no evidence suggesting that Rule 11 isn’t working right now. In fact, it says, research has shown that the current rule may actually have increased sanctions imposed under other rules and laws, including the court’s own power. Judges have many other tools to sanction frivolous litigants, the letter notes.

“Past experience strongly suggests that the proposed changes would encourage new litigation over sanction motions,” Susman wrote. “This is a costly and completely avoidable outcome.”

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