|Oregon State Bar Bulletin OCTOBER 2010|
By Peter M. Appleton
Not so much here in Oregon, but for a while when I was practicing in Los Angeles almost every motion or opposition I saw contained a word processor request for sanctions. I always wondered what our clients thought about our fascination with sanctions. Sanctions are like the lottery. Can we intimidate our opponent? Can we get a busy frustrated judge to make an award big enough to inflict serious financial damage on him or her? If so, will he or she beg for mercy? Will he or she abandon his or her client? Let’s go for it. Bingo.
The obvious effect of the threat of sanctions is to make lawyers reluctant to file a chancy lawsuit and pursue it on behalf of a client. It is one thing to lose a case. It is quite another to lose your house. The separate-but-equal doctrine had been upheld by the United States Supreme Court six times before it was overturned in Brown v. Board of Education, and contributory negligence had been the law in California for 121 years before the California Supreme Court changed the law judicially to comparative negligence in Li v. Yellow Cab. Had a client come to me and asked me to handle either one of those cases, I probably would have turned them down because of concern for sanctions. What lawyer would take on a case in which a victory depended upon overturning 100 years of precedent? Even a mention of sanctions in such a situation would put the fear of God into most cautious lawyers.
Notwithstanding differences between Oregon’s sanction rule, ORCP Rule 17, and Rule 11 of the Federal Rules of Civil procedure, Oregon courts are likely to look to Rule 11 precedent for guidance on how to apply Rule 17. See, e.g. Sinio v. Bledsoe, 172 Or. App. 254 (2001). Thus someone will be tempted to cite to the Supreme Court’s refusal to review a $92,834 sanction imposed against civil rights attorney William Kuntsler or that Court’s refusal to review a $20,000 sanction award against Julius L. Chambers, the director of the NAACP Legal Defense Fund for his role in a class action lawsuit alleging that the Army had engaged in racial discrimination at Fort Bragg, North Carolina, as precedent for a high award of sanctions under Rule 17.
In 1991, Judge Mary M. Schroeder of the Ninth Circuit Court of Appeals conducted a study, which she said suggested that Rule 11 was being used as a fee-shifting device by defendants in a disproportionately large number of civil rights cases. Another problem with Rule 11 (and possibly Rule 17) is its uneven application. Many lawyers have no confidence in how a particular trial judge will react to a request for sanctions, and the Ninth Circuit’s reversal rate for Rule 11 motions is much greater than its ordinary reversal rate.
Sanctions were created to curb what was perceived to be abuses by lawyers. Was a monster created? And for what? Given the time allowed for the correction of sanctionable conduct in both Rule 17 (D) (3) and Rule 11(c), sanctions are not likely to be an effective remedy. A request for sanctions polarizes people. A motion for sanctions against another lawyer is a declaration of war. More than anything else, it makes litigation a personal contest between lawyers and not just in that one case. Memories are long and payback is not uncommon. How much valuable judicial time is devoted to resolving sanctions dispute? How many appeals would not have been taken were it not for sanctions?
We are kidding ourselves if we think that we can get sanctions rules off the books. We can, however, choose how we use those rules. We can reserve requests for sanctions to those extraordinary situations where truly egregious conduct occurred and was not timely corrected. Even then, count to 10, calculate how much it will cost to obtain the sanctions against the amount that will likely be collected, determine whether the cost of seeking sanctions can be passed on to the client, and ask another lawyer to review the situation and give you his or her take (that is how a judge is likely to do it). Remember, as professionals we should be promoting cooperation and cordiality. We do not have to give a damn about how they do it in Los Angeles or New York.
ABOUT THE AUTHOR
Peter M. Appleton is a sole practitioner in Salem. He is admitted in both Oregon and California. He is a former president of the Beverly Hills (California) Bar Association, former trustee of the Los Angeles County Bar Association, a former chair of the California State Bar Conference of Delegates and a member of the California State Bar Judicial Nominees Evaluation Committee. He hates e-mail and does not use it. You can reach him by telephone at (503) 585-0105.
© 2010 Peter M. Appleton