Groundless Pleading and Certifying Attorneys in the Federal Courts

47 Pages Posted: 8 Mar 2018

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: 1985

Abstract

Pursuant to the August 1983 amendments to Rule 11 of the Federal Rules of Civil Procedure, the signature of an attorney on a pleading filed in federal district court constitutes a certification by the attorney that "to the best of his knowledge, information, and belief formed after reasonable inquiry [the pleading] is well grounded in fact." If an attorney signs a pleading in violation of this standard, the trial court shall impose "an appropriate sanction." Such a sanction is often levied directly on the attorney, and usually requires the payment of money that cannot be charged to or paid by the attorney's client. The signature requirement and the accompanying sanctioning authority were intended to alter both attorney and judicial conduct in order to "streamline the litigation process by lessening frivolous claims of defenses." The changes in the signature requirement were designed to make the attorney more responsible for shielding the federal courts from frivolous pleadings. The changes in attorney responsibility have made the certification standard for attorneys "more stringent," and have led to the expectation that "a greater range of circumstances will trigger" violations of the signature requirement. Changes in the sanctioning authority also make the trial judge more responsible for shielding the federal courts from frivolous pleadings. The changes in the sanctioning authority stress "a deterrent orientation in dealing with improper pleading," and were intended to focus "the court's attention on the need to impose sanctions for pleading abuses." The recent efforts toward imposing greater responsibility on both attorneys and judges for insulating and ridding the federal district courts of frivolous pleadings are commendable extensions of prior procedural reforms. The 1983 amendments to the federal civil rules were intended to stimulate more fair, prompt and affordable dispute resolutions by reducing the problems associated with frivolous pleadings. The rule changes, however, provide only an insufficient shield from frivolous pleadings. Further changes that impose additional responsibilities regarding groundless pleadings on both attorneys and judges are warranted. An attorney's additional responsibility should include a continuing duty to stand behind signed pleadings and a mandatory duty to amend pleadings on the substantial completion of discovery or on the initiation of pretrial conference preparation. The increased responsibility should also include the recognition that, pursuant to federal common law, an attorney may be held financially responsible to those injured as a result of filing and pursuing frivolous claims or defenses. The suggestions in this article reflect the view that pleading abusers can be deterred without significant harm to the policy favoring free access.

Keywords: Federal Rules of Civil Procedure, FRCP, frivolous claims, frivolous pleadings, signature requirement, sanctions

Suggested Citation

Parness, Jeffrey A., Groundless Pleading and Certifying Attorneys in the Federal Courts (1985). Utah Law Review, Vol. 1985, No. 325, 1985, Available at SSRN: https://ssrn.com/abstract=3129104

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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