Rule 11 Revisited

When Rule 11 of the Federal Rules of Civil Procedure went into effect 4 years ago, it was hoped that this rule would stem the tide of litigation abuse. Currently, controversy over the impact of the rule is growing. Supporters argue that the rule has curbed litigation abuse, that benefits outweigh detriment, and that no alternative yet proposed is viable. However, critics argue that the rule breeds wasteful litigation and chills creative advocacy. Two major problems with the current execution of the rule are considered: 1. the lack of predictability of the standard of compliance, and 2. the excessive amount of litigation produced by the rule. An approach to enforcement constructed to accomplish the rule's purpose more efficiently and at less cost is proposed, including a rethinking of the rule to emphasize its dual purpose of focusing on the merits and lack of merits of claims and defenses. While not solving every problem, this shift in focus likely will result in less frequent imposition of sanctions. Once the private incentive to seek sanctions is lessened, courts will leave it to case management to relieve the financial burden that baseless litigation imposes.