Rule 11 as a Litigation Tool
| Publication year | 1983 |
| Pages | 1242 |
1983, August, Pg. 1242. Rule 11 as a Litigation Tool
Rule 11 of the Federal and Colorado Rules of Civil Procedure is the centerpiece of judicial control over frivolous litigation. On both the federal and state levels, the Rule unfortunately has had more bark than bite. In recent years, though, the Rule has been invoked by courts to strike pleadings at an early stage and penalize parties and attorneys who burden the courts with unwarranted pleadings. Rule 11 has been revised, effective August 1, 1983, on the federal level. The coverage and sanctions available are expanded by the revision. However, the litigation-curbing device of a motion to strike under the new Rule may not be allowed to continue its development. This article discusses Rule 11 and analyzes its revision.
In general, six types of conduct are prohibited by Rule 11: (1) failing to sign a pleading; (2) signing the pleading in other than an individual name; (3) omitting the address of the signer; (4) failing to include the name of an attorney representing an ostensibly unrepresented party; (5) signing of a pleading by an attorney who has not read it; and (6) signing of a pleading by an attorney who did not have "good ground" to support it. Prohibitions 1-3 are seldom litigated, as they are often the result of oversight. Attorney violations of Rule 11, on the other hand, have been the subject of some controversial case law.
Colorado's version of Rule 11, as revised in 1964, differs from the federal Rule 11 in a few significant respects.(fn1) Both the federal and state rules recognize that an attorney's signature constitutes certification that there is good ground for the pleading and that it is not being interposed for delay. The Colorado Rule also recognizes that a pleading in violation of the Rule may be stricken, but deletes the words "as sham and false." This gives the impression that under state procedure, the trial court is given more latitude in determining why a pleading may be stricken.(fn2)
The state Rule provides for a wider range of remedies on its face. An attorney who wilfully violates the federal Rule may be subject to "appropriate disciplinary action." Colorado's Rule 11 states that a violating attorney may be subject to "appropriate punishment as in contempt cases, and the court may also direct him to pay to the other party reasonable attorney's fees and costs occasioned by said violation. . . ." The impact of this distinction is that state judges have a greater range of potential sanctions against attorneys who file a pleading without "good ground" or for delay.(fn3) Despite the Colorado Rule's greater flexibility, the reported cases fail to show a more expansive use of Rule 11 on the state level than in federal court.
With its admonition against baseless pleadings, Rule 11 has, at least in theory, an important and distinct place among the rules of civil procedure. The Rule is consistent with Rule 1 at both the federal and state levels, which states that the rules shall be "construed to secure the just, speedy, and inexpensive determination of every action," and with Rule 8(f), which requires that all pleadings "shall be construed as to do substantial justice."
Rule 11 on the federal level can work well in tandem with 28 U.S.C. § 1927. Revised in 1980, 28 U.S.C. § 1927 imposes sanctions against attorneys who multiply the proceedings in any case unreasonably and vexatiously. Under that statute, the court may impose excess costs, expenses and attorney's fees against the attorney. While federal Rule 11 does not expressly provide for assessment of costs and attorney's fees against attorney violators, a serious violation of the Rule would almost always be a violation of the statute.
On the state level, the Rule 11 sanction is consistent with, and in some respects overlaps, C.R.S. 1973, § 13-17-101 et seq., as amended. This legislation imposes attorney's fees against a party whose "bringing, maintaining, or defense" of an action was "frivolous or groundless."(fn4) The statute is broader than state Rule 11 in that it applies to all conduct in litigation, whereas the Rule governs only "pleadings"---a term carefully limited by Rule 7(a).(fn5) The statute is narrower than the Rule in that it applies only to suits involving money damages,(fn6) whereas the Rule covers all civil litigation. The statute also does not...
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