Chapter §11.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§11.8STRATEGIC AND PRACTICAL CONSIDERATIONS

The request for CR 11 sanctions is not something that should be part of the everyday practice of law. Indeed, it is the rare case in which such sanctions are warranted. Very few requests under the civil rules invoke the scorn of opposing counsel and are viewed as skeptically by the courts as requests for CR 11 sanctions. That is not to say, however, that such requests are never warranted. As the cases discussed above demonstrate, requesting CR 11 sanctions can be appropriate in certain situations.

Because there are so many counties and state superior court judges, it is not possible to describe any generalized approach to sanctions. The best practice guides appear to come from local anecdotal knowledge and cited appellate decisions. Previous editions of this chapter offered nine practice tips, several of which are now a part of the CR 11 and FED. R. CIV. P. 11 case law. This version of the chapter reiterates and expands those tips:

(1)	Know your judge. Some judges view requests for CR 11 sanctions as unnecessary "sharp practice," while others view such requests as part of the normal litigation practice. Given the lack of consensus, it is important to find out as much as possible about the attitude and CR 11 history of the judge who will decide the CR 11 motion.
(2)	Don't automatically react. Refrain from automatic, routine, knee-jerk CR 11 motions. The rule was intended above all as a stop-and-think rule. It is of course true that a CR 11 motion groundlessly filed is itself a basis for the imposition of CR 11 sanctions. Given the distaste many superior court judges have acquired for CR 11 motions, some might be tempted to impose sanctions sua sponte on the moving attorney if the motion is viewed as unnecessary or frivolous. The reason such sanctions are not imposed more frequently may be concern on the part of the judges that such a course of action would simply lead to another hearing and another round of arguments and counterarguments, all adding to the cost of the litigation and further delaying its ultimate resolution.
(3)	Build a record. If you believe that the legal process is truly being abused by frivolous pleadings, motions, or legal memoranda that fall within the purview of CR 11, build a record before seeking sanctions. Good practice under CR 11 requires a warning prior to filing for sanctions, and there is nothing impermissible about advising an adversary as

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