Posted On: March 17, 2011

Frivolous lawsuits and Rule 11: Is the cure worse than the problem?

Few would argue the merits of frivolous lawsuits, but the “cure” being proposed in Congress this week is far worse than the disease. One only needs to journey back in history a few decades to get a preview of what could easily happen again if the groups pushing for tougher measures get their way in the fight against frivolous lawsuits.

At the heart of the battle is Rule 11 of the Federal Rules of Civil Procedure. Originally drafted more than 70 years ago, it has been revised twice in the last thirty years: first to toughen up sanctions against attorneys filing frivolous lawsuits, and a decade later to mitigate the damage caused by the first revision. In today’s version of Rule 11, judges have some latitude in determining whether or not to impose attorney sanctions, and lawyers in civil cases are granted a 21-day “safe harbor” period during which time they can withdraw a lawsuit following a sanctions motion.

This week, though, lobbyists representing two of the country’s most powerful small-business interest groups have testified on Capitol Hill that they want to see Rule 11 brought back to its 1983 state – that is, the time of the first, lamentable revision. Their argument: that in its current form, Rule 11 is creating a chilling effect on small businesses. These lobbyists are asking Congress to reinstate mandatory attorney sanctions under Rule 11 and remove the rule’s provision granting the 21-day withdrawal period. What these small-business interest groups may not realize is that the Rule 11 of today is far less “chilling” to the American judicial system than the Rule 11 to which they want to revert.

University of Houston law professor Lonny Hoffman, who testified against the proposed changes, put it best, recalling the chaos that ensued after Rule 11 was first amended in 1983: “Sanctions practice took on a life of its own…with lawyers routinely battling over the minutiae of all the new obligations imposed.” Indeed, rather than reduce litigation, Rule 11 added both time and expense to it.

In his testimony, Hoffman cited another legal scholar, Georgene Vairo, who wrote about the “avalanche” of satellite litigation unleashed by the 1983 revisions, including one study that found that in a one-year period almost 55% of respondents had experienced either formal or informal threats of Rule 11 sanctions.

Even more disturbing about Rule 11, particularly after it was amended in 1983 and before it was revised again in 1993, was that those most hurt by it were low-income civil rights and employment discrimination plaintiffs. These were the people least likely to have the funds to keep the battle going. In effect, Rule 11 became an intimidation technique and had a chilling effect on free access to the courts. Even in its current form, Rule 11 suffers similar criticisms. It also encroaches upon the American rule disfavoring the award of counsel fees for the losing party.

When, in 1993, Congress revised Rule 11 to give judges more latitude in imposing sanctions and to create the safe-harbor provision, Congress was attempting to correct much of the damage of Rule 11 in its earlier form. Now groups representing small businesses want to have Rule 11 brought back to those glory days of the mid-1980s?

Before we rush to do that, we should pause and reflect on history. After all, as American philosopher George Santayana once said, “ Those who do not learn from history are doomed to repeat it.”

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Posted On: March 1, 2011

Jurors and the Internet: Time to Ask Some Pointed Questions

It has been widely reported that jurors’ cyber-surfing has wreaked havoc in the courtroom, with mistrials, appeals and overturned verdicts at record levels. Though largely the result of jurors’ chatting online about the trials on which they are serving, even jurors’ seemingly innocuous web expeditions have stopped trials in their tracks. Earlier this year, a judge in Florida declared a partial mistrial and threatened a juror with charges of criminal contempt after she was found to be conducting online research about head injuries during a capital-murder trial.

As judges grapple with the myriad complexities involved in keeping jurors off their Smart Phones, iPads and Facebook pages, lawyers can help mitigate the damage. Voir dire is a good place to start. In this social-networking age, trial lawyers should be routinely asking members of the jury pool whether they have Facebook accounts, Twitter accounts, even blogs. When hands go up, follow-up questions should include, “How often do you check your Facebook page?” “How often do you post?” “Do you Tweet?” and, if so, “How often?” This should tell you how plugged-in your potential jurors are.

Other questions will give you insight into where they go for information: You might ask, “Do you have blogs or websites you check daily or weekly?” and “What are they?” It might also be helpful to find out how they feel about Wikipedia – do they trust it as a source of information? And you might want to ask how often they Google. An individual who spends hours Googling and YouTubing may need to be reminded in no uncertain terms that trolling online for information relevant to the case is off limits.

As social-networking options evolve, trial lawyers should stay abreast of the latest forums so you not only know how to pose questions, but also how to conduct research. After all, ten years ago, no one would have needed to ask a juror if he Tweets. Today it’s a perfectly reasonable question.

If a potential juror shares that he has several blogs of his own, a few favored blogs on which he posts regularly, a couple of Facebook accounts he checks dozens of times a day and a Twitter account that keeps him hopping, it’s possible that he would ignore a judge’s instruction not to post anything about the case or not to do online research, even if said juror has the best of intentions. It’s just too pervasive. It’s akin to asking him to lock himself in a room with no windows for what could be a month or longer.

By no means is this post meant to suggest that every potential juror with an active social-media life be banned from serving on a jury. Increasingly, that runs contrary to the goal of selecting a jury of one’s peers. On the other hand, as a trial lawyer, it is your job to know what you are dealing with. Not only will this help you in jury selection, but also in how to present information to the jury once the trial is underway. That is, assuming you realize that at least some jurors may still log on.

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