Purpose of Rule 11

Rule 11 Certification and Sanctions

Purpose of Rule 11

Suppose Peters sues Dupont for negligently driving a car into him and breaking his leg. The complaint is legally sufficient. But Peters actually broke the leg playing basketball, or perhaps neither Peters nor his lawyer read the police report showing that Edmunds, not Dupont, was driving. Nothing in Rule 12(b)(6) or Rule 12(f) protects against allegations that are dishonest, sloppy, mistaken, or ill-motivated.¹ Rule 11 does.

Rule 11(b) works by turning each paper into a certification. Presenting a paper to the court—signing, filing, submitting, or later advocating it—certifies that the presenter believes, after a reasonable inquiry, that the paper is sound on four points.² It is not presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.³ Its legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing the law or for establishing new law.⁴ Its factual contentions have evidentiary support or, if specifically so identified, will likely have it after a reasonable opportunity for further investigation or discovery.⁵ And its denials of fact are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.⁶

The certification manages a tension at the center of law practice. A lawyer is charged with zealous advocacy, yet is also an officer of the court and cannot pursue the client’s interest by deceiving the court or the opponent.⁷ Rule 11 draws that line at the point where the paper reaches the court.

The rule demands inquiry, not merely honesty. A basis-in-fact requirement presupposes a duty to look before suing; without one, an “empty head” defense—“I wasn’t pleading in bad faith; I just didn’t know”—would defeat the requirement. Even if Peters did not know that Dupont was not the driver, he should have made some inquiry, such as reading the police report.⁸ In Mars Steel Corp. v. Continental Bank, the Seventh Circuit called this the objective component of Rule 11 and identified it as the big change in the 1983 amendment. A paper filed in the best of faith by a lawyer convinced of the client’s cause is sanctionable if counsel neglected to make reasonable inquiry beforehand. “An empty head but a pure heart is no defense.”⁹

Contract law shows how much that choice matters. Forbearance from suit on a clearly invalid claim is not consideration for a promise, but forbearance from suit on a claim of doubtful validity is, if the claimant sincerely believes in it.¹⁰ Sincere belief counts there. Under Rule 11 it does not save a signer who skipped the inquiry.

The same opinion explains whom the rule protects. Rule 11 creates a duty to one’s adversary, which is to avoid needless legal costs and delay. It creates a duty to the legal system, which is to avoid clogging the courts with paper that wastes judicial time, defers the disposition of other litigants’ cases, and, by leaving judges less time for each case, increases the rate of error. The rule lets judges husband their scarce energy for litigants with serious disputes.¹¹

Before 1983 the rule lacked that objective component and accomplished little. Signature requirements of this kind remind attorneys of their obligations to the legal system, but they have been weak control devices because judges were reluctant to sanction without a finding of subjective bad faith, a most difficult element to prove.¹² Under the old version, sanctions were never mandatory, were imposed only on a finding of bad faith, and were few.¹³ In Cooter & Gell v. Hartmarx Corp., the Supreme Court recounted that the Advisory Committee had found two problems with the old rule. The first was confusion about when a pleading should be struck, what standard of conduct made an attorney liable, and what sanctions were available. The second was reluctance by courts to impose discipline and by attorneys to invoke the rule.¹⁴ The 1983 amendment answered with the objective component.¹⁵ An objective test asks what a reasonable inquiry would have shown rather than what the signer was thinking, so the hard-to-prove element drops out. The 1983 version also made sanctions mandatory; the 1993 revision made them discretionary again and placed limits on monetary sanctions.¹⁶

Rule 11 is not a loser-pays statute. Under the American Rule each side bears its own attorneys’ fees, and Rule 11 ensures that each side really does bear the expenses of its own case, so that the proponent of a position pays for investigating the facts and the law.¹⁷ The sanction provisions fit that aim. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, it may impose an appropriate sanction.¹⁸ A monetary sanction should ordinarily be paid into court as a penalty. Payment to the other party is ordered only when warranted for effective deterrence and is limited to the fees and expenses directly resulting from the violation.¹⁹

Because the rule looks to conduct before filing, the question to ask is whether the paper was deficient when presented, not whether it succeeded. The focus is ex ante, meaning what should have been done before filing, rather than ex post, meaning how things turned out. How much investigation is reasonable depends on the circumstances, and a court may not award sanctions merely because matters went poorly after an investigation that was adequate in light of what was known and how much time was available.²⁰

Both this claim and Peters’s fail. Only Peters’s signer skipped the inquiry the rule requires, and the difference lies entirely in what happened before filing.

The rest of this chapter follows a paper through the rule. Rule 11(a) requires that every pleading, written motion, and other paper be signed by an attorney of record or, for an unrepresented party, by the party personally.²¹ The signature carries the Rule 11(b) certification: a reasonable inquiry applied to four prongs covering proper purpose, legal contentions, factual contentions, and denials. Rule 11(c) then supplies the sanctions machinery, under which the court may sanction any attorney, law firm, or party that violated the rule or is responsible for the violation.²² The chapter closes with the limits of the rule: what it excludes, how appellate courts review it, and the court’s other sources of power against litigation abuse.