I have been threatened with Rule 11 sanctions many times, and at least a couple of lawyers have served me with a Rule 11 motion. Nothing causes an inexperienced lawyer to panic like a threat of sanctions, but with a better understanding of the rule comes the ability to deal with threats and motions more effectively.
Despite my experience dealing with threats and getting served with Rule 11 motions, I have only argued a single Rule 11 motion in court, and it was for someone else. In fact, I didn’t even write the response, and I barely remember the hearing. So, I reached out to lawyers with more experience litigating Rule 11 motions for their input.
The First (and Second and Third) Rule of Litigation is Don’t Violate Rule 11
Rule 11 is deceptively simple. Here is basically what it says:
- Don’t file things to be a jerk or waste everyone’s time.
- Make sure your claims have merit, or you have a good argument why they should.
- Make sure you can support your allegations of fact, or that you are pretty sure you will be able to after some discovery.
- Same for denials.
The first is clear enough. However, if your filing has merit and has the side benefit of pissing off opposing counsel or gaining time, you are probably fine.
The second can be harder. It is not always clear whether a defendant has actually violated a law. In fact, that is often the source of disagreement. In my own experience, defense counsel often took the position that their client’s conduct was not a violation of the law, and that I was a moron who couldn’t read the statute or the case law. But just because we disagree about the law, that does not mean I violated Rule 11. If you have a good faith argument for why the defendant’s behavior violates the law, you may still get threats, but you don’t need to fear them.
Other times, opposing counsel would argue that my client was lying, which falls under Rule 11(b)(4). I think it is best practice to always assume your client is lying until you see some evidence that backs up their story. Don’t be a jerk about it; just be a stickler for detail. When you can get evidence, get it. For example, phone records were often important to my cases, and they are a lot better than memory when it comes to the dates and times of phone calls from debt collectors. Insisting on corroborating evidence is better than listening to your client change his story every time new evidence comes to light.
As Susan Minsberg says:
The most important thing to demonstrate to the court is that you made a reasonable inquiry before you asserted the allegations and that the allegations have evidentiary support. That is true whether you are the Plaintiff or the Defendant.
Defense counsel seem to forget this more than plaintiffs, but maybe that is just my bias. I have dealt with many defendants who follow the “deny everything” strategy when it comes to answering a complaint. This seems like a good idea unless you re-read Rule 11(b)(4). Just as the plaintiff must read and re-read the complaint to make sure that every claim and every allegation of fact make sense and have merit, defense counsel must exercise some restraint in making denials. You cannot just deny everything and tack on a laundry list of every conceivable affirmative defense.
Now, scrupulous compliance with Rule 11 will not guarantee freedom from threats of sanctions.
You can safely ignore most threats of sanctions. As a general rule, lawyers who actually think you violated Rule 11 will not make threats; they will take action. A lawyer blustering about sanctions is probably just trying to intimidate you, and it is usually best to wait and see what kind of lawyer you are dealing with. If they do not serve you with a motion, they are probably just full of bluster. If they do, they are probably going to play it straight throughout the litigation, if you survive the motion.
Karen Ciano’s advice is along the same lines:
Keep calm — remember sanctions motions are meant to be rarely made and even more rarely granted. No matter how terrible or how false the accusations against you, try not to get rattled. Treat it like any other motion, because that’s how the Court will see it.
My usual response when threatened with sanctions Is something like this: “If you think I have violated Rule 11, serve your motion. Otherwise, let me know when you are ready to talk about settlement.” Most of the time, threats are as far as opposing counsel is willing to go. Bryan Battina faced many threats, but only one motion:
I have had a number of threats for Rule 11, but only one firm had the balls to actually file one, and the judge ordered them to pay my fees for having to respond.
(Bryan also has advice for those contemplating filing a Rule 11 motion: “it better be based on something other than ‘my client didn’t do what you say he did.'”)
Rule 11 is designed to encourage lawyers to serve motions, not to threaten them. That is why there is a 21-day safe-harbor provision. Rule 11 motions must be served with all supporting documents 21 days before they can be filed. That means you have three weeks to mull over the motion, brief, and any supporting affidavits, talk about it with your mentors, and decide whether or not to withdraw the thing opposing counsel is complaining about. Threats are worthless and lazy. And with some lawyers, they are frequent, too. Try not to worry too much about threats.
Of course, you will not actually be able to ignore most threats. They will make your heart beat faster and keep you up at night. That happened to me, too. Every time. But you can reassure yourself that if opposing counsel is not serious enough to serve a motion, you probably do not have anything to worry about.
Now is a good time to consult with a mentor or colleague. A little reassurance that your case is not frivolous and the threats are probably empty will do wonders for your ability to sleep.
If you actually get served with a Rule 11 motion, start taking it very seriously. You have 21 days to make up your mind whether to fight the motion or withdraw whatever it is opposing counsel is upset about.
Sound advice from Tim Maher:
Give it proper consideration. At its best, a Rule 11 Motion is a Motion from one professional to another professional, stating that a particular claim is not allowed by law (e.g. if you have alleged a cause of action that the Supreme Court has explicitly rejected). At its worst, it is a Motion from one professional acting unprofessionally to another professional by accusing the professional of acting unprofessionally.
If you did not do it before, now really is the time to consult a mentor or talk things through — in detail — with a colleague. Even if you are confident in your position, you should spend some real time talking through the issues with someone who is willing to give it the attention it is due. Make sure they are willing to read the motion and any attachments, learn all the variables, and spend enough time with you to thoroughly assess the risk.
Only you can decide whether to fight the motion. If you decide to fight and you lose, the court can assess pretty much whatever sanctions it can justify, including striking claims, monetary fines, and more, against the attorneys or parties responsible. Given that risk, it is easy to think it is better to just back down. It is not.
You cannot simply fold whenever you get a Rule 11 motion. If you do, you will be asking for more Rule 11 motions, because word will get around that you are a pushover. Rule 11 motions are a lot cheaper and easier than litigation, and that makes them a cheap and cost-effective way to win cases against litigators without guts. Opposing a Rule 11 motion, even when you are in the right, takes guts.
If you decide to stop doing whatever prompted the motion, you will probably be tempted to try to save face by explaining yourself to opposing counsel. Reasonable minds may differ on this, but I do not think it is a good idea. Don’t try to justify your decision; just do it. You will not do yourself or your client any favors by trying to sound tough while you back down.
But if you do decide to back down, make sure you only correct the problem identified by opposing counsel. Do not get excited and dismiss the entire case if the Rule 11 motion only concerns a single allegation.
Stay calm, get the stipulation you need, if you need one, and fix the problem.
Responding to a Rule 11 Motion
If you respond, start with the merits of the Rule 11 motion itself. Make sure opposing counsel has complied with the strict procedural requirements — specifically the 21-day safe harbor. And make sure the Rule 11 motion actually states a violation of the rule. Rule 11 is not a substitute or shortcut for litigation. Karen Hazel says:
I guess my “tip” is to first make sure it’s a valid Rule 11 motion to begin with.
In a Rule 11 motion Hazel faced, opposing counsel claimed it was a violation of Rule 11(a) for her to “ghostwrite” a summary judgment memorandum for a low-bono client. It is not, and she won after the judge forced opposing counsel (also the opposing party) to admit he had no law to back up his position.
Remember that a good-faith basis for your claims, defenses, allegations, or whatever else opposing counsel is upset about is basically a complete defense to a Rule 11 motion. To underline that point, here is Chad Snyder, who successfully defended two Rule 11 motions in federal court and says “responding to them at all was not one of my favorite professional experiences”:
In your response, be specific about your good faith basis — keeping in mind that good faith is judged on an objective basis. What was the basis for the factual underpinnings? What is your legal authority? If the legal basis for your claim or defense is settled, provide enough authority to show the court that it is settled. If it isn’t settled, but can be reasonably inferred from existing law, show your work — what is the existing law, and why does it support your application in the current case?
But whatever you do, once you have decided to fight a Rule 11 motion, go all-in. Tim Maher, again:
RESEARCH! Many Rule 11 Motions are poorly researched because lawyers do not want to waste time on a Motion they may never bring, if the opposing side can simply withdraw the offending document during the Safe Harbor period. Make sure your research puts theirs to shame. (And, if they have prepared any other motions in that case, feel free to compare their own excellently researched and documented Motion to Amend under Rule 15 to their poorly researched and documented Rule 11 Motion so that their own work puts them to shame.)
Remind the other side (and the Court) that Rule 11 Motions are subject to Rule 11 and the responding party DOES NOT have to bring a Rule 11 Motion in response. The Court may simply award fees to the prevailing party. Rule 11 bullies become very timid when they realize they may be sanctioned for their shoddy efforts.
That last point is pretty important. Section 11(c)(2) is a built-in make-sure-you-mean-it clause for both parties.
Finally, from Teresa Gumerman:
Just remind people that just because opposing counsel is a rabid dog, doesn’t mean you have to stoop to their level. A judge will always appreciate an attorney who remains civil, professional and calm.
Always good to remember, no matter what you are doing in court. Staying civil, professional, and calm even when you are being threatened with a Rule 11 motion will help you keep your head and respond appropriately.
This was originally published on June 25, 2013. It was revised and republished on March 16, 2014.