Sifton, Charles

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Response to a Practitioner\u27s Commentary on the Actual Use of Amended Rule 11

Fordham University School of Law

Fordham Law Review Volume 54 Issue 1 Article 8 1985 Response to a Practitioner's Commentary on the Actual Use of Amended Rule 11 Charles Sifton Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Charles Sifton, Response to a Practitioner's Commentary on the Actual Use of Amended Rule 11, 54 Fordham L. Rev. 29 (1985). Available at: https://ir.lawnet.fordham.edu/flr/vol54/iss1/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. REMARKS OF CHARLES SIFTON*Well, I have the impression that part of this debate has been going onfor years. This Rule has been around, as Judge Carter pointed out, 3° foran awfully long time, and it has had a lot of predecessors. I don't think itis the simple existence of this kind of rule that brings us here tonight, andI don't think this debate should be about whether lawyers can be im-proved by rules enjoining ethical conduct or whether judges should havetools like this with which to vent occasionally their passions against law-yers they don't like. That kind of issue has been the subject of debate foryears without any significant result. What I think is interesting and, Itake it, brings us together tonight is that it looks as if something is hap-pening at present to this Rule that hasn't happened before. Not only it isoccasioning conferences like this, but in some small measure the Rule isbeginning to be enforced.131I submit that it is being enforced in an effort to shift the cost, thecrushing cost of litigation, in recognition of the fact that one of the inju-ries that can occur in this society is the injury that is inflicted by thereceipt of one's own lawyers' bill. With that kind of injury clients arenaturally going to look around for a remedy. They are going to ask theirlawyer why do I have to put up with the kind of bill you are giving me todefend this lawsuit when you tell me the lawsuit is totally without merit?Having said that, if only because it seems to remove some of the emo-tions and moral overtones from this debate, I'd like you to consider thisRule as if it had created a new cause of action for the tort of inflictingunnecessary litigation on someone. I think that is useful because, for onething, you can compare it with the tort we have at present, the tort ofmalicious prosecution. Malicious prosecution is a tort that you can'teven start to sue on until after you prevailed in some separate lawsuit.1 32Maybe that is a good idea. Maybe that requirement of success in anearlier lawsuit would remove these problems of conflict between the at-torney and his present client which have been mentioned by others.The tort of malicious prosecution also requires a finding of malice, andthere has been some suggestion in the discussion this evening that Rule11 as well requires malice. 133 It doesn't, as I read the Rule; I suggest toyou that judges are going to start reading this Rule rather carefully or* Judge, United States District Court for the Eastern District of New York.130. See supra notes 11-12 and accompanying text (Remarks of Robert L Carter).131. Vairo, supra note 1, at 74.132. See Worley v. Columbia Gas of Ky., Inc., 491 F.2d 256, 261 (6th Cir. 1973), cert.denied, 417 U.S. 970 (1974); De La Cruz v. Du Fresne, 512 F. Supp. 1204, 1205 (D. Nev.1981); Selas Corp. v. Wilshire Oil Co., 344 F. Supp. 357, 360 (E.D. Pa. 1972). One courthas defined malicious prosecution as "an action in tort to recover damages for the insiti-tution, maliciously and without probable cause, of a suit which has terminated in favor ofthe defendant therein." Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla.278, 289, 109 So. 623, 626 (1926).133. Welsh v. Kinchla, 577 F.2d 767, 769 (1st Cir.), cert. denied, 439 U.S. 983 (1978);Williams v. City of New York, 508 F.2d 356, 359 (2d Cir. 1974); Skarbinski v. Henry H.FORDL4M LAW REVIEWthey will be forced to read it rather carefully by clients looking for aremedy for the injury done them by their own lawyers' bills. As JudgeCarter noted in referring to the opinion by Judge Bicks, 1 4 even in a situ-ation where you act with the best of good faith, if you fail to make rea-sonable inquiry-in other words, if you are negligent-you have violatedthe Rule and opened yourself or your client up to some sort of shifting ofthe expense that you have caused as a result of your negligence. So,under this Rule it is not entirely a matter of bad faith, and it is not en-tirely an attack on your personal character for someone to ask for coststo be shifted under Rule 11. People of fine character fail from time totime to act as a reasonably prudent person would act under the samecircumstances.Another useful reason for considering this Rule as if it created a newcause of action is that it makes you think a moment about causation andabout damages. One of the things that will happen if people start sittingdown and determining what the expenses are that have been caused bythe filing of a lawsuit is that you are going to add to this body of lawwhich is growing up as to how much a lawsuit properly ought to cost andhow much should somebody pay for a discovery motion. I think this isgoing to do everybody a lot of good. It is going to cause some considera-tion being given not only by the person who is being neglectful, but alsoby the lawyer who is defending the improperly brought lawsuit, of howmuch expense ought to be created for a client in defending the lawsuit.Does the client really need two lawyers to draft the papers or to appearin court when he may find himself eventually in a position where he canonly recover the expense of one of those lawyers.However, having said all of this, and to get to the anecdote that MelWeiss suggested might be told pertinently in this context, there are andremain policy considerations separate and apart from the considerationswarranting the shifting of the expense of unnecessary litigation from oneside to the other-that is, that we want to keep our courts open to peoplewith grievances, 135 even those who are mistaken on who is at fault. Thatis why we have limited ourselves to the tort of malicious prosecution inthe past. I think we have to remember that, if we go from our presentpractice of having each party bear his or her own costs and move to-wards a situation in which it is all or nothing-you are either right oryou pay for everybody's litigation expense-that you're going to work asignificant change in the judicial system that we presently have. In thisconnection, I would suggest to you that, if you look at some of theseKrause Co., 378 F.2d 656, 658 (6th Cir. 1967); Pratt v. Bernstein, 533 F. Supp. 110, 118(S.D.N.Y. 1981).134. See supra notes 16-19 and accompanying text (Remarks of Robert L. Carter).135. See Kihneman v. Humble Oil & Ref. Co., 312 F. Supp. 34, 38 (E.D. La. 1970);Levine v. Mills, 114 A.2d 546, 548 (D.C. 1955), affid in part, rev'd in partper curtam, 233F.2d 16 (D.C. Cir.), cert. denied, 352 U.S. 858 (1956); Petrich v. McDonald, 44 Wash. 2d211, 217, 266 P.2d 1047, 1050 (1954) (quoting Abbott v. Thorne, 34 Wash. 692, 694-95,76 P. 302, 303 (1904)).[Vol. 54RULE 11 SYMPOSIUMother areas in which cost shifting is developing most rapidly-for exam-ple, in the civil rights area, where the prevailing party can recover fromthe other side,136 and under the Equal Access to Justice ActI 37 where thelitigant against the United States Government can recover the expensesof litigation where the government's position is not substantially justi-fied-you will find that there has been remarkable tolerance for what youmight call meritless litigation. This is right because we really have toleave the courts relatively open and shift this kind of expense accordingto standards applied with an eye towards the benefits of keeping thecourts open.This brings me to the anecdote I think Mel Weiss was talking about. Ithink it is the one about the pro se litigant who came into court, heardhis adversary's position, and got so furious that during the recess he wentout and pulled out a can of mace-this happened on the fourth floor ofthe Eastern District Court-and maced his adversary. The adversary, Iam sure, would rather have responded to a frivolous argument in courtthan be attacked in this fashion. Or Mr. Weiss may be referring to some-thing I keep on my desk, which is a yellowing copy of a New York Timesarticle about a gentlemen who saw fit to resolve his complaint about em-ployment discrimination at IBM by walking into their offices in Armonk,New York, and shooting everybody in sight. He may not have had ameritorious claim against his employer, but he sure was mad. I think itwould have been better for an individual with that kind of feeling that hehad been wronged to have him come into court and file a completelyfrivolous lawsuit. We should encourage that option rather than havepeople take the law into their own hands.136. See 42 U.S.C. § 1988 (1982).137. 28 U.S.C.A. 2412 (Supp. 1985).1985]

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Response to a Practitioner\u27s Commentary on the Actual Use of Amended Rule 11

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