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Unpublished Paper
Reality meets Perception for Federal Rule of Civil Procedure 11: An Empirical Study of Practice Under the 1983 and 1993 Versions.
ExpressO (2010)
  • David B. Owens, Stanford University

The claim that frivolous litigation is an “epidemic” plaguing our civil justice system strikes a chord with many Americans. Legal ethicists and other academics have responded by emphasizing that incidents like the McDonald’s coffee case are distorted by sensationalist media coverage and, more fundamentally, that they are not representative of civil litigation. Against the backdrop of this persistent social controversy, Rule 11 of the Federal Rules of Civil Procedure has been twice significantly amended in the last 30 years—in 1983 and 1993. The most recent amendments in 1993 did not quell political concern about frivolous litigation. Indeed, as recently as 2005 Congress sought to circumvent the normal rule revision process via the Advisory Committee and resurrect something significantly similar to, though harsher than, the more strict 1983 version of the Rule. In this essay I argue that the discourse surrounding the Lawsuit Abuse Reduction Act of 2005 elucidates an important problematic facet within the frivolous litigation controversy. The problem is more than bad media coverage or even some legislative grandstanding, it results from a failure to understand how the Rule operates in practice.But, to date, no study has compared case data under both of Rule 11’s recent instantiations. Accordingly, this essay offers a novel empirical study of the Northern District of California and its experience under both sets of rules. My findings indicate that the 1993 amendments have well served their intended purpose of deterring both frivolous litigation and needless collateral litigation over sanctions, without opening the courthouse doors to a flood of baseless suits. Thus, at least for this jurisdiction, there is no justification to revive a more draconian version of the Rule.

  • Rule 11,
  • frivolous litigation,
  • empirical studies,
  • civil procedure
Publication Date
February 17, 2010
Citation Information
David B. Owens. "Reality meets Perception for Federal Rule of Civil Procedure 11: An Empirical Study of Practice Under the 1983 and 1993 Versions." ExpressO (2010)
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