Report of a Survey

Concerning Rule ,

Federal Rules of

Civil Procedure

John Shapard, George Cort,

Marie Cordisco, Thomas Willging,

Elizabeth Wiggins & Kim McLaurin

Federal Judicial Center



This Federal Judicial Center publication was undertaken in furtherance

of the Center’s statutory mission to conduct and stimulate research and

development for the improvement of judicial administration. The views

expressed are those of the authors and not necessarily those of the Federal

Judicial Center.
Introduction

At the request of the Advisory Committee on Civil Rules of the Judicial

Conference of the United States, the Federal Judicial Center surveyed

attorneys and judges concerning Rule  of the Federal Rules of Civil Procedure. The survey sought respondents’ views of the effects of Rule 

before , the effects of amendments to Rule  that became effective

December , , and the merits of proposals that would in large measure reverse the  amendments. This is the report of the results of that

survey.

Among other changes, the  amendments () provided that the

purpose of Rule  sanctions is solely the deterrence of objectionable filings; () created a “safe harbor” against sanctions for filings that are withdrawn; () made the imposition of sanctions discretionary; () allowed

filing of factual contentions absent evidentiary support, as long as they

are likely to have evidentiary support after discovery; and () removed

discovery-related activity from the scope of the rule. Proposed legislation would reverse each of those changes and would provide that sanctions imposed must include payment to the other party of all reasonable

expenses incurred as a direct result of the filing.1

 Debate about Rule 

has been based in part on a  Federal Judicial Center survey of judges

that indicated general support for Rule  at that time.2

 The survey reported here was designed, in part, to elicit judges’ current views based

on their experience with the  amendments. It should be noted that

the questionnaire generally limited its focus to the choice between the

existing rule and proposed changes. It does not address any other changes

that might be proposed and possibly preferred by many judges and lawyers.

On June , , questionnaires were mailed to representative samples

of , federal trial attorneys and  federal district judges.3

 Appendix

A explains the method for choosing these samples. Appendix B contains

the questionnaires used in the survey. The questions asked judges and

attorneys were as identical as possible, but it should be recognized that

judges and attorneys may have different perspectives on Rule , not only

because of their different roles in the litigation process but also because

most attorneys work primarily on certain types of cases (e.g., personal

injury) whereas judges have experience with many different types of cases.

If particular problems commonly occur in a given type of case, such prob-

. See, e.g., The Attorney Accountability Act of , H.R. , th Cong., st Sess.

().

. See Elizabeth C. Wiggins et al., Rule : Final Report to the Advisory Committee on

Civil Rules of the Judicial Conference of the United States (Federal Judicial Center ).

. A reminder and new questionnaire were mailed on July , , to those who had

not responded as of : pm that day. Responses were received from % of judges and

% of attorneys.

Report of a Federal Judicial Center Survey on Fed. R. Civ. P.  1
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

lems would be known to most or all judges but only to attorneys who

handle that type of case.4

The survey responses suggest that a majority of attorneys and judges

generally oppose the proposed changes to Rule , with one notable exception: A majority of judges and defendants’ attorneys, and a near majority of plaintiffs’ attorneys, believe that the purpose of Rule  sanctions should encompass compensation of parties injured by violations

of Rule  as well as deterrence of such violations. However, a majority of

all three groups believe that sanctions should not be mandatory for any

violation and that compensation should not be mandatory when a sanction is imposed.

Results

The questionnaire was addressed quite pointedly to the concerns about

Rule  that were at issue when the  amendments were recommended

by the Advisory Committee on Civil Rules of the Judicial Conference of

the United States. The proposed legislation puts these concerns in issue

once again. These five core concerns provide the organization for this

section.

Is there a problem with groundless litigation, and has that problem

increased or decreased since the  amendments?

When asked about the extent of problems with groundless litigation, a

majority of judges and attorneys described the problem as no larger than

“small.” Of course, these judgments pertain to a context where Rule 

may effectively dissuade filing of groundless pleadings. A very large majority of respondents agree that some form of Rule  is needed, suggesting that those who regard the problem with groundless litigation as small

believe Rule 11 keeps it from being a larger problem.5 Although there

appears to be significant agreement between judges and defendants’ attorneys, with both reporting moderate or large problems much more

frequently than plaintiffs’ attorneys, it is important to note that judges

and attorneys may be responding to this question from very different

. In drafting the questionnaire, we sought to promote considered answers by explaining briefly the proponents’ and opponents’ views of alternative proposals. In doing

so, although we tried to assure that the statements were balanced and unbiased, we clearly

risked creating unintended bias. We designed the statements to summarize fairly the

arguments on both sides. The length of a statement on one side or the other is simply a

product of the amount of explanatory material needed. For example, it takes many words

to describe a change like the safe harbor provision, but few words to communicate the

meaning of a repeal of the same provision. The wording of the statements reflects the

belief that short statements can be at least as persuasive as long ones.

. See the heading “General views about Rule 11,” infra p. .

2
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

perspectives. As explained earlier, if existing problems with groundless

litigation occur primarily in certain types of cases, then only attorneys

who handle those types of cases will report these problems. However, it

is likely that most or all judges will be aware of them.

Table 

Is there a problem with groundless litigation in federal civil cases in

which you serve as counsel? [for judges: on your docket?]

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys

Possible Answer (n = )6 (n = )7 (n = ) (n = )

There is no problem 3% 39% 10% 19%

There is a very small problem 26% 31% 22% 28%

There is a small problem 31% 19% 29% 23%

There is a moderate problem 24% 5% 24% 22%

There is a large or very large problem 16% 2% 13% 4%

When asked whether the problem with groundless litigation had

changed since the  amendments to Rule , very few judges or attorneys indicated that the problem is now larger. Most judges and attorneys

indicated that the problem either never existed or is the same or smaller

than it was before .

Table 

How has the problem of groundless litigation in civil cases changed since

Rule  was amended in ?

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys

Possible Answer (n = ) (n = ) (n = ) (n = )

There has never been a problem 3% 30% 5% 12%

The problem is larger now 9% 1% 10% 5%

The problem is the same now 68% 31% 53% 48%

The problem is smaller now 14% 11% 12% 13%

I can’t say 6% 27% 20% 23%

. n represents the number of respondents who answered the question. The value of

n varies slightly from table to table because of variation in the number of respondents

(usually one or two) failing to answer the question.

. Attorneys were asked whether they primarily represented plaintiffs or defendants

in their civil practice. Those who said they represent plaintiffs more often than defendants are called “plaintiffs’ attorneys.” Those who more often represent defendants are

called “defendants’ attorneys,” and those who represent about the same number of plaintiffs and defendants are called “other attorneys.”

3
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

Is the “safe harbor” provision supported, and how has it affected

judicial workload?

The  amendments to Rule  provide a “safe harbor” so that a party

cannot be subjected to sanctions on the basis of another party’s Rule 

motion unless, after receiving the motion, the party refuses within twentyone days to bring its actions into compliance with Rule . Proposed legislation would eliminate the safe harbor provision. Opponents have argued that the safe harbor provision unduly weakens the deterrent against

filing groundless claims, while proponents of the provision believe that

it leads to the efficient resolution of issues with less court involvement

and gives parties incentives to withdraw or abandon questionable positions.

When asked whether they support or oppose the safe harbor provision, a notable majority of judges (%) and attorneys (% overall: %

of defendants’ attorneys and % of plaintiffs’ attorneys) indicated that

they either moderately or strongly support it.

Table 

Do you oppose or support the inclusion of a safe harbor provision in Rule ?

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys Possible Answer (n = ) (n = ) (n = ) (n = )

Strongly oppose 7% 8% 10% 9%

Moderately oppose 9% 6% 17% 15%

Moderately support 38% 19% 33% 29%

Strongly support 32% 61% 28% 38%

I find it difficult to choose 9% 5% 8% 2%

I can’t say 5% 2% 4% 7%

Judges were also asked whether the safe harbor provision had affected

the amount of Rule  activity on their dockets. The vast majority indicated that Rule  activity either remained the same (%) or decreased

(%). Only two judges thought the safe harbor provision had resulted

in more Rule  activity, and % were unable to answer the question.8

Should the rule require that factual allegations have evidentiary

support at the time of filing?

The  amendments to Rule  changed the certification standards for

factual allegations to permit not only factual contentions that have evidentiary support at the time of filing, but also factual contentions that

. The questionnaire was sent only to judges who had been appointed to the bench

before , but some may have had insufficient experience with the pre- rule to

answer the question. Moreover, even if Rule 11 activity had changed since the  amendments, some judges might not be confident that the safe harbor provision had caused the

change.

4
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

are specifically identified as “likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery.” Proposed

legislation would repeal that change and thus require that all factual contentions have evidentiary support at the time of filing.

Proponents of the  change argue that it was needed to avoid deterring meritorious filings in which a prefiling inquiry uncovers apparent facts that need discovery or further investigation to provide evidentiary support. Opponents argue that the change permits groundless papers to be filed without an adequate prefiling inquiry.

A large majority of plaintiffs’ attorneys favored the current provision

of Rule  permitting filing of factual allegations “likely to have evidentiary support after a reasonable opportunity for further investigation or

discovery.” Judges and defendants’ attorneys, however, were about equally

split between support for the current rule and support for the proposed

change. Judges were more likely than plaintiffs’ or defendants’ attorneys

to report that the pros and cons of the  amendment are about equally

balanced.

Table 

Which of the following actions do you think would be fairest to all parties in

the cases with which you are experienced?

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys Possible Answer (n = ) (n = ) (n = ) (n = )

Keep Rule  as it is 40% 79% 45% 68%

Require that all factual contentions

have evidentiary support

at the time of filing 38% 12% 40% 20%

I find it difficult to choose, because

I think the pros and cons of the

 amendment are about

equally balanced 17% 4% 10% 8%

I can’t say 5% 5% 5% 4%

Purpose and requirements for Rule  sanctions

The  amendments to Rule  state that sanctions imposed for violation of the rule shall be limited to what is sufficient to deter similar violations, and they permit sanctions that compensate the injured party only

when necessary for effective deterrence. Moreover, the  amendments

leave to the court’s discretion whether to impose any sanction for a violation of the rule. Proposed legislation would reverse these aspects of the

amendments by requiring that Rule  sanctions () compensate as well

as deter, () be imposed for any violation of the rule, and () include an

award of attorneys’ fees sufficient to compensate the injured party. The

survey respondents indicated support only for changing the purpose of

the rule to include compensation as well as deterrence.

5
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

Table 

Affirmative response to proposed changes in aspects of Rule 

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys

Proposed Change (n = ) (n = ) (n = ) (n = )

Purpose of Rule 11 sanctions should

include compensation as well as

deterrence 66% 43% 63% 66%

The court should be required to

 impose a sanction when a

violation is found 22% 24% 27% 25%

When a sanction is imposed, the

sanction should be required to

include an award of attorneys’ fees

sufficient to compensate

the injured party 15% 21% 34% 31%

Should sanctions for violation of rules concerning discovery

be governed only by the discovery rules, only by Rule , or by both discovery rules and Rule ?

The  amendments to Rule  removed discovery-related activity from

the scope of the rule, largely because Federal Rules of Civil Procedure

(g) and  establish certification standards and sanctions for discovery

matters. Proposed legislation would reverse the amendments and include

discovery-related activities within the scope of Rule  once again; thus

sanctions for violations of discovery rules would be governed both by

Rule  and by Rules (g) and . The questionnaire asked about these

options, as well as about a third option that might be said to exhaust the

set of possibilities—consolidating sanctions matters in Rule  and eliminating them from Rules (g) and . Pluralities in all groups favor the

approach adopted in the  amendments, although a small but notable percentage of each group thinks discovery-related sanctions provisions should be covered in both Rules (g) and  and Rule . There is

little support for consolidating the provisions in Rule  and eliminating

them from Rules (g) and .

6
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

Table 

Which would be the best option for sanctions provisions related to discovery?

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys

Possible Answer (n = ) (n =) (n = ) (n = )

They should be covered only in

Rules (g) and  (the current rule) 48% 59% 49% 54%

They should be covered in both

Rules (g) and  and Rule  33% 12% 27% 19%

They should be consolidated in

Rule  and eliminated from

Rules (g) and  6% 9% 6% 4%

There is no significant difference

among the three options 8% 10% 9% 12%

I can’t say 6% 11% 9% 11%

General views about Rule 

Finally, we asked respondents a very general question about whether and

in what direction Rule  should be modified, in light of factors other

than Rule  (e.g., informal admonitions, Rule  conferences,  U.S.C.

§ , prompt dismissal of groundless claims) that may deter or minimize the harmful effects of groundless assertions or arguments. The vast

majority agreed that Rule  is needed in some form, but there are notable differences among respondents whether and in what respect the

rule should be modified.

Table 

How, if at all, should Rule  be modified?

Plaintiffs’ Defendants’ Other

Judges Attorneys Attorneys Attorneys

Possible Answer (n = ) (n = ) (n = ) (n = )

Rule  is needed, but it should be

modified to increase its effectiveness

in deterring groundless filings

(even at the expense of deterring

some meritorious filings) 32% 11% 37% 24%

Rule  is needed, and it is just

right as it now stands 52% 41% 37% 40%

Rule  is needed, but it should be

modified to better avoid deterring

meritorious filings (even at the

expense of failing to deter some

groundless filings) 7% 27% 12% 16%

Rule  is not needed 4% 12% 4% 10%

I can’t say 5% 9% 10% 10%

7
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

Appendix A

Method

Questionnaires, in three forms, were sent to samples of , attorneys

and  federal district judges:

• All judges received identical questionnaires, which included one

experience question not asked of lawyers.

• All lawyers received the same questionnaire, which included one

experience question not asked of judges.

• Approximately half of the lawyers received questionnaires with answer spaces adjacent to the questions and the rest received questionnaires with separate answer sheets.9

 The questionnaires are

reproduced in Appendix B.

The attorney questionnaires were produced in two different formats

to test whether return rates or responses from attorneys would differ as a

function of questionnaire form. Both to facilitate prompt completion of

the survey and to reduce expenses, we employed personal computer software to automatically read the responses to questionnaires returned to

us by facsimile machine (we established a toll-free  telephone number for the faxed returns). This avoids the labor that would otherwise be

required to enter the questionnaire responses into our computer. This

savings may be at least somewhat offset, however, by the long distance

telephone expenses associated with questionnaires returned by fax. The

cost of a fax return exceeds the postage necessary for questionnaires returned by mail when the returned document exceeds three pages in

length.10 Because a single answer sheet is sufficient to record responses

for even a lengthy questionnaire (most of which is taken up by the questions, not the answers), we wanted to compare the success of using a

single answer sheet with the standard approach we have used in the past,

where the answers are indicated on the questionnaire itself and the full

document is returned to us. We were concerned that the answer sheet

approach might suffer from reduced response rates because of its imper8

. To avoid confusion from receipt of different questionnaire forms by attorneys in

the same office, we sent one form to attorneys with odd-numbered zip codes and the

other to those with even zip codes. Hence the two groups were not exactly equal in size:

 received the regular format questionnaire, and  received the separate answer sheet

form.

. This is a rough guideline. We currently pay . per minute for long distance calls

within the United States, and with most fax machines the transmission time is less than

one minute per page. We pay regular first-class mail rates for returned questionnaires,

usually by including a postage-paid return envelope with the questionnaire, so we pay

postage for each such envelope, whether or not returned, which increases the overall

unit price per returned questionnaire. With faxed responses, we pay telephone charges

only for questionnaires actually returned.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

sonal character and because of unpleasant memories of separate answer

sheets in standardized tests (e.g., the multistate bar exam).11

The response rates did not differ notably between the two different

questionnaire formats. Responses were received from % of attorneys

sent the separate answer sheet form and from % of those sent the standard form. The difference is not statistically significant.

Sample of attorneys

The questionnaires were sent to all attorneys listed as lead counsel of

record in a particular sample of civil cases filed in the federal district

courts during the six months ending October , . Selection criteria

sought to enhance the likelihood that the attorneys would be familiar

with Rule  and that we could obtain the attorneys’ names and addresses

quickly.

First, we excluded from consideration certain types of cases that were

unlikely to involve Rule , because the attorneys involved in those cases

may be relatively unfamiliar with the rule. The cases excluded from consideration were () prisoner cases (mainly habeas corpus and actions alleging civil rights violations by prison officials), () Social Security cases,

() forfeiture and penalty actions, () bankruptcy matters, () foreclosure actions, and () actions to recover defaulted student loans or overpayments of veteran’s benefits.

Second, we limited the sample to cases filed in thirty-three federal

districts, which were identified by randomly selecting half of the sixtyfive districts that employ the pacer (Public Access to Court Electronic

Records) system. Because the survey needed to be completed quickly,

only attorneys from pacer districts were included because of our ability

to obtain the sample of attorney names and addresses promptly. For pacer

districts, we obtained the docket sheet (including counsel names and

addresses) by telephone connection to the court’s pacer computer. To

obtain names and addresses of counsel for cases in non-pacer districts,

we would have had to write to the court requesting photocopies of the

docket sheets of the cases in the sample and then enter the name and

address information into our computer. This would have required at least

four weeks. By restricting the sample to pacer districts, we were able to

retrieve the information directly into our computer and have the sample

ready in order to mail the questionnaires in less than two weeks.

Limiting the sample of attorneys to those in cases from just thirtythree districts is very unlikely to result in any detectable bias. Because

most non-pacer districts are relatively small, the sixty-five pacer districts (% of the districts) account for % of the district courts’ civil

9

. We are grateful to Frank Leidy of the Center’s Planning & Technology Division for

suggesting that we experiment with the separate answer sheet format.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

caseload. Furthermore, the random selection of half of the pacer districts is unlikely to distort the survey results in a meaningful way.12

Sample of judges

The sample of judges selected to receive the questionnaires was chosen

both to afford comparability to the sample of attorneys chosen and to

provide a representative sample of the district judiciary as a whole. Because the questionnaire sought to compare the extent of problems with

groundless filings before and after the  amendments, we restricted

the sampling to active judges appointed to the district bench before .

Two groups of judges were then selected. One hundred twenty-five judges

were selected at random from the thirty-three pacer districts from which

the sample of attorneys was chosen, and an additional sample of twentythree judges was selected from among the non-pacer districts. Thus, the

full sample may be regarded as representative of all district judges because the judges were represented in the sample in the same proportions

—% and %—as the district courts’ caseload is represented by cases

from pacer and non-pacer districts.

10

. Distortion might occur if Rule  is perceived as influencing litigation or does

influence litigation very differently from the norm in a few courts and if the sample of

thirty-three pacer districts contained more or less than exactly half of such districts.

However, even a modest distortion of results that might thus occur is almost certainly

irrelevant in this context, where we seek general impressions—not precise measurements—of respondents’ perceptions and views regarding Rule .
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

Appendix B

Questionnaire

The judges’ version of the questionnaire is reproduced below and on the

following pages. Differences in the attorneys’ questionnaire are indicated

by bracketed text.

11

RULE 11 SURVEY

PURPOSE AND INSTRUCTIONS

This questionnaire seeks your evaluation of several issues concerning Federal Rule of

Civil Procedure 11 (Rule 11) and current Congressional proposals to amend that rule.

This questionnaire is about the effects of Rule 11 in cases in which both sides are

represented by counsel. Do not include in your evaluation of Rule 11 the effects it may

or may not have had on cases in which one or all parties are proceeding pro se.

Please respond to the questions on the basis of your own experience with cases on

your docket, [in federal litigation,] not the experiences of other judges or attorneys

[not the experiences of others].

For convenience, throughout this questionnaire we refer to papers that do not conform

to the requirements of Rule 11 as groundless.

Please mark your answers to the following questions on the enclosed

answer sheet.

1. FREQUENCY OF GROUNDLESS LITIGATION

1.1 Is there a problem with groundless litigation in federal civil cases on your docket? [in

which you serve as counsel?] Please mark one.

a) There is no problem.

b) There is a very small problem.

c) There is a small problem.

d) There is a moderate problem.

e) There is a large problem.

f ) There is a very large problem.

g) I can't say.

1.2 Is the current problem (if any) with groundless litigation in civil cases on your docket

[ in federal civil cases] larger, smaller, or about the same as it was before Rule 11 was

amended on December 1, 1993? Please mark one.

a) There has never been a problem.

b) The problem is much larger now than it was then.

c) The problem is slightly larger now than it was then.

d) The problem is the same now as it was then.

e) The problem is slightly smaller now than it was then.

f ) The problem is much smaller now than it was then.

g) I can't say.
12 Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

2. THE SAFE HARBOR PROVISION. The 1993 amendments to Rule 11 provide that a

motion for sanctions shall not be filed with the court until 21 days after a copy is served

on the opposing party. If the alleged violation is corrected during this 21 day period, the

motion shall not be filed at all. This provision is intended to provide a "safe harbor" so that

a party will not be subjected to sanctions on the basis of another party's motion unless,

after receiving the motion, the party refuses to bring its actions into compliance with Rule

11. Proposed legislation would eliminate the "safe harbor" provision.

Proponents of the safe harbor provision argue that it leads to the efficient resolution of

both the Rule 11 issues and the underlying legal and factual issues with less court

involvement; gives incentives to parties to withdraw or abandon questionable positions;

decreases the number of sanctions motions that are filed for inappropriate reasons; and

that abuses of the "safe harbor" can be dealt with by sua sponte sanctions. Opponents

of the "safe harbor" provision argue that it allows filing of groundless papers without

penalty and denies compensation to parties who have been subjected to groundless filings.

2.1 Based on your experience and your assessment of what would be fairest to all

parties, do you oppose or support the inclusion of a "safe harbor" provision in Rule 11?

Please mark one.

a) Strongly oppose

b) Moderately oppose

c) Moderately support

d) Strongly support

e) I find it difficult to choose because the pros and cons of the "safe harbor" provision

are about equally balanced.

f ) I can't say.

2.2 [Asked only of judges] How has the “safe harbor” provision affected the amount of

Rule 11 activity on your docket?

a) Rule 11 activity has increased substantially.

b) Rule 11 activity has increased slightly.

c) Rule 11 activity has remained about the same.

d) Rule 11 activity has decreased slightly.

e) Rule 11 activity has decreased substantially.

f) I can’t say.

3. CERTIFICATION STANDARDS FOR FACTUAL ALLEGATIONS. The 1993 amendments

to Rule 11 changed the certification standards for factual allegations to permit not only

factual contentions that have evidentiary support at the time of filing, but also factual

contentions that are specifically identified as "likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery." Proposed legislation

would repeal that change, and so require that all factual contentions have evidentiary

support at the time of filing.

Proponents of the 1993 change argue that it was needed to avoid deterring meritorious

filings in which a prefiling inquiry uncovers apparent facts that need discovery or further

investigation to provide evidentiary support. Opponents argue that the change permits

groundless papers to be filed without an adequate prefiling inquiry.

Which of the following actions do you think would be fairest to all parties in the cases with

which you are experienced? Please mark one.

a) Keep Rule 11 as it is (with the 1993 amendment permitting contentions

specifically identified as "likely to have evidentiary support after a reasonable

opportunity for further investigation or discovery").

b) Adopt the proposed legislation (i.e., repeal the 1993 amendment and so require

that all factual contentions have evidentiary support at the time of filing).

c) I find it difficult to choose, because I think the pros and cons of the 1993

amendment are about equally balanced.

d) I can't say.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P.  13

4. PURPOSE OF RULE 11 SANCTIONS. The 1993 amendments to Rule 11 provide that

the purpose of Rule 11 sanctions is to deter repetition of the offending conduct, rather

than to compensate the parties injured by that conduct; that monetary sanctions, if

imposed, should ordinarily be paid into court; and that awards of compensation to the

injured party should be made only when necessary for effective deterrence. In addition, the

1993 amendments direct that the court "may" (rather than "shall") impose a sanction

when the rule has been violated.

Proposed legislation would alter these standards, making it explicit that a purpose of

sanctions is to compensate the injured party as well as to deter similar conduct and would

require that a sanction be imposed for any violation. Proposed legislation would also

require that any sanction include an award of attorneys' fees sufficient to compensate the

injured party.

Please indicate for each of the three questions below what you think would be, on balance,

the fairest form of Rule 11 for the types of cases you encounter on your docket [in your

practice].

4.1 What should the purpose of Rule 11 sanctions be? Please mark one.

a) deterrence (with compensation only when required for deterrence)

b) compensation only

c) both compensation and deterrence

d) other (please specify in the answer space for question 8)

4.2 Should the court be required to impose a monetary or nonmonetary sanction when a

violation is found? Please mark one.

a) yes

b) no

c) I can't say.

4.3 When a sanction is imposed, should it be mandatory that the sanction include an

award of attorneys’ fees sufficient to compensate the injured party? Please mark one.

a) Yes, compensation should be mandatory if a sanction is imposed.

b) No, compensation should not be mandatory.

c) I can't say.
14 Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 

5. APPLICATION TO DISCOVERY. The 1993 amendments to Rule 11 removed

discovery-related activity from the scope of Rule 11 because Federal Rules of Civil

Procedure 26(g) and 37 establish certification standards and sanctions that apply to

discovery disclosures, requests, responses, objections, and motions. Proposed legislation

would amend Rule 11 to once again cover discovery-related activity.

Proponents of the 1993 changes argue that discovery should not be covered by Rule 11

because the sanctions provisions of Rules 26(g) and 37 are stronger and are specifically

designed for the discovery process. Opponents argue that including discovery under Rule

11 or under Rule 11 together with Rules 26(g) and 37 is more effective in deterring

groundless filings than Rules 26(g) and 37 alone.

Based on your experience, which of the following options do you believe would be best?

Please mark one.

a) Sanctions provisions related to discovery contained only in Rules 26(g) and 37 (the

current rule).

b) Sanctions provisions related to discovery contained in both Rules 26(g) and 37 and

Rule 11.

c) Sanctions provisions related to discovery consolidated in Rule 11 and eliminated

from Rules 26(g) and 37.

d) There is no significant difference among the three options.

e) I can't say.

6. OTHER METHODS OF CONTROLLING GROUNDLESS LITIGATION. Federal statutes, the

Federal Rules of Civil Procedure, and inherent judicial authority provide judges with a

number of methods for deterring or minimizing the harmful effects of groundless claims,

defenses, or legal arguments (e.g., informal admonitions, Rule 16 conferences, 28 U.S.C.

Section 1927, prompt dismissal of groundless claims). Based on your view of how

effective or ineffective those other methods are, how, if at all, should Rule 11 be

modified? Please mark one.

a) Rule 11 is needed, but it should be modified to increase its effectiveness in

deterring groundless filings (even at the expense of deterring some meritorious

filings).

b) Rule 11 is needed, and it is just right as it now stands.

c) Rule 11 is needed, but it should be modified to better avoid deterring meritorious

filings (even at the expense of failing to deter some groundless filings).

d) Rule 11 is not needed.

e) I can't say.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P.  15

7. [Asked only of attorneys] Do you primarily represent plaintiffs or defendants in your

civil practice? Please mark one.

a) almost exclusively plaintiffs

b) more plaintiffs than defendants

c) about the same number of plaintiffs and defendants

d) more defendants than plaintiffs

e) almost exclusively defendants

8. Please use the space provided for any additional comments or suggestions you may

have about issues raised in this questionnaire or about Rule 11 in general.
the federal judicial center

board

The Chief Justice of the United States, Chair

Judge Bruce M. Selya, U.S. Court of Appeals for the First Circuit

Judge J. Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit

Judge Marvin E. Aspen, U.S. District Court for the Northern District of Illinois

Chief Judge Richard P. Matsch, U.S. District Court for the District of Colorado

Chief Judge Michael A. Telesca, U.S. District Court for the Western District of New York

Judge Elizabeth L. Perris, U.S. Bankruptcy Court for the District of Oregon

L. Ralph Mecham, Director of the Administrative Office of the U.S. Courts

director

Judge Rya W. Zobel

deputy director

Russell R. Wheeler

division directors

Gordon Bermant, Planning & Technology Division

William B. Eldridge, Research Division

Emily Z. Huebner, Court Education Division

Robb M. Jones, Judicial Education Division

Sylvan A. Sobel, Publications & Media Division

About the Federal Judicial Center

The Federal Judicial Center is the research, education, and planning agency of the federal

judicial system. It was established by Congress in  ( U.S.C. §§ –), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also

includes the director of the Administrative Office of the U.S. Courts and six judges elected by

the Judicial Conference.

The Court Education Division develops and administers education and training programs and services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial services offices, and management training programs for court teams of

judges and managers.

The Judicial Education Division develops and administers education programs and services for judges, career court attorneys, and federal defender office personnel. These include

orientation seminars, continuing education programs, and special focus workshops.

The Planning & Technology Division supports the Center’s education and research activities by developing, maintaining, and testing technology for information processing, education, and communications. The division also supports long-range planning activity in the

Judicial Conference and the courts with research, including analysis of emerging technologies, and other services as requested.

The Publications & Media Division develops and produces educational audio and video

programs and edits and coordinates the production of all Center publications, including

research reports and studies, educational and training publications, reference manuals, and

periodicals. The Center’s Information Services Office, which maintains a specialized collection of materials on judicial administration, is located within this division.

The Research Division undertakes empirical and exploratory research on federal judicial

processes, court management, and sentencing and its consequences, often at the request of

the Judicial Conference and its committees, the courts themselves, or other groups in the

federal system.

The Center’s Federal Judicial History Office develops programs relating to the history of

the judicial branch and assists courts with their own judicial history programs.

The Interjudicial Affairs Office serves as clearinghouse for the Center’s work with state–

federal judicial councils and coordinates programs for foreign judiciaries, including the Foreign Judicial Fellows Program.