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June 20, 2011

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Comments

John Watkins

If the goal is reducing litigation, this is not a good idea. Going back to the future on Rule 11 will not deter frivolous litigation. Instead of securing the dismissal of frivolous litigation, it will result in "satellite litigation" about whether there was a basis for bringing the litigation. If sanctions are awarded, there will be further litigation about whether the opposing party's attorney's fees are reasonable.

The current version is a reasonable approach, because it gives the party filing the litigation a short period to re-think things, and, if appropriate, withdraw the claim. If the claim is withdrawn, the litigation ends, period. If it is not withdrawn, then the same possible sanctions are in place.

The real cure for frivolous litigation is for active judicial involvement from the beginning. It would also help if all federal judges would decide motions in a timely manner. Some do and many don't.

Theodore Araujo

If this is used as a tool for intimidation by the large firms as against the small then the Courts should sanction the party bringing the motion in the first place with abandon if it is not warranted. Rule 11 has fairly broad language. If a litigant falls outside the four corners of a non-frivolous suit then they should be sanctioned. There are too many suits that have no factual basis or legal basis. The ones I have seen are brought by counsel that are not all that bright and often see the Courts as an invitation to express a view or concern that is not recognized in the law. Those lawyers should be pushed out of the profession through financial sanctions. However, Judges who use the rule to keep causes of action that are valid out of their court rooms because they do not favor the litigant or cause should also be routinely removed from their office. I have seen many sides of the application of the rule when it was first proposed and the vast majority of litigants and judges treated it with the scorn it deserves unless a litigant is completely out of the bounds of reason when bringing the suit. Good lawyering will ameliorate any of the possible negative effects of the rule. If an attorney is worried about the application of the rule, or sees it as yet another tool to intimidate an opponent, perhaps they should not bring the suit or find another profession.

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