Report of a Survey of United States District Judges’

Experiences and Views Concerning Rule 11,

Federal Rules of Civil Procedure

David Rauma & Thomas E. Willging

FJC Project Team:

George Cort

Vashty Gobinpersad

Maria E. Huidobro

Federal Judicial Center

2005

This Federal Judicial Center publication was undertaken at the request of

the Judicial Conference’s Advisory Committee on Civil Rules and is 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 Advisory 

Committee or of the Federal Judicial Center.
Blank pages inserted to preserve pagination when printing double-sided copies.
iii

Contents

Introduction 1

Summary of Results 2

Results 3

Frequency of Groundless Litigation 3

“Safe Harbor” Provision and Rule 11 Activity 5

Rule 11 Sanctions 7

Three Strikes 9

Application of Rule 11 to Discovery 12

How to Control Groundless Litigation? 13

Conclusion 15

Appendix A: Method 16

Appendix B: Questionnaire 18
Blank pages inserted to preserve pagination when printing double-sided copies.
1

Introduction

The Judicial Conference’s Advisory Committee on Civil Rules asked the

Federal Judicial Center to design and implement a survey of a representative national sample of federal district judges. The purpose of the survey 

was to gather information about the judges’ experiences with Rule 11 of the

Federal Rules of Civil Procedure as well as to elicit their opinions about recent proposals in Congress to amend Rule 11. The chair of the Advisory

Committee and the committee’s reporters helped develop the questionnaires. Center staff conducted the survey and analyzed the results during

December 2004 and January 2005.

As currently written, Rule 11 expressly authorizes judges to impose

sanctions on lawyers and parties who present to a district court a pleading,

written motion, or other paper without reasonable support in fact or law or

for an improper purpose, such as to cause unnecessary cost or delay. Rule

11 provides that sanctions for violations are within the judge’s discretion;

that a party should have a period of time, a “safe harbor,” within which to

withdraw or correct a filing alleged to violate Rule 11; and that Rule 11’s

primary purpose is to deter future violations and not necessarily to compensate the opposing party for losses, including attorney fees.

In the 108th Congress, the House of Representatives passed H.R. 4571,

the Lawsuit Abuse Reduction Act of 2004,1 which would have amended

Rule 11. That bill would have provided for mandatory sanctions for violations, repealed the safe harbor, and required judges to order the offending

lawyer or party to compensate the opposing party for attorney fees incurred

as a direct result of a Rule 11 violation. The proposed legislation would 

have reversed three amendments to Rule 11 adopted through the rulemaking process in 1993: to convert mandatory sanctions to discretionary

sanctions, to create a safe harbor, and to deemphasize attorney fee awards.

The proposed legislation also would have introduced a requirement that a

district court suspend an attorney’s license to practice in that district for one

year if the attorney was found to have violated Rule 11 three or more times

in that district.

The survey was designed, in part, to elicit district judges’ views based on

their experience with the 1993 amendments. The Advisory Committee was

particularly interested in having the survey identify any differences in the

views of district judges concerning the current Rule 11, the legislative pro1. H.R. 4571, 108th Cong. 2d Sess. (2004). The House version was introduced in the Senate on

Sept. 15, 2004, referred to the Committee on the Judiciary, and was not the subject of a vote.
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posal, and the pre-1993 version of Rule 11. The pre-1993 version differs

from the legislative proposal in significant ways, particularly in its treatment

of attorney fees as a discretionary, not a mandatory, sanction for a violation 

of Rule 11.

On December 10, 2004, the Center E-mailed questionnaires to two random samples of 200 district judges each. District Judge Lee H. Rosenthal,

chair of the Advisory Committee on Civil Rules, provided a cover letter for

the E-mail. One sample comprised solely judges appointed to the bench before January 1, 1992, who would be expected to have had considerable experience with the pre-1993 version of Rule 11. The other sample comprised

solely judges appointed to the bench after January 1, 1992, who would be

expected to have had most of their judicial experience working with the

1993 amended version of Rule 11. Judge Rosenthal sent a follow-up E-mail

on January 3, 2005. Of the 400 judges, 278 responded, a rate of 70%. Appendix A explains the methods used to select the samples. Appendix B contains a composite copy of the two questionnaires used in the survey.

Summary of Results

More than 80% of the 278 district judges indicated that “Rule 11 is needed

and it is just right as it now stands.” In evaluating the alternatives, 87% of

the respondents preferred the current Rule 11, 5% preferred the version in 

effect between 1983 and 1993, and 4% preferred the version proposed in

H.R. 4571.

Judges’ opinions about specific provisions in Rule 11 and the proposed

legislation followed a similar pattern. The results indicated that relatively

large majorities of the judges who responded to our survey have the following views about Rule 11:

• 85% strongly or moderately support Rule 11’s safe harbor provision;

• 91% oppose the proposed requirement that sanctions be imposed for

every Rule 11 violation;

• 84% disagree with the proposition that an award of attorney fees

should be mandatory for every Rule 11 violation; and 

• 72% believe that having sanctions for discovery in Rules 26(g) and 37

is best.

A majority of the judges (55%) indicated that the purpose of Rule 11

should be both deterrence and compensation; almost all of the other judges

(44%) indicated that deterrence should be the sole purpose of Rule 11.
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The views of judges who responded to the survey are likely to be related 

to their estimation of the amount of groundless civil litigation they see in

their own docket, especially when focusing on cases where the plaintiff is

represented by counsel. Approximately 85% of the district judges view

groundless litigation in such cases as no more than a small problem and another 12% see such litigation as a moderate problem. About 3% view

groundless litigation brought by plaintiffs who are represented by counsel

as a large or very large problem. For 54% of the judges who responded, the

amount of groundless litigation has remained relatively constant during

their tenure on the federal bench. Only 7% indicated that the problem is

now larger. For 19%, the amount of groundless civil litigation has decreased

during their tenure on the federal bench, and for 12% there has never been a

problem.

Results

The Advisory Committee was especially interested in having a survey that

was designed to inquire about district court judges’ experience with Rule 11

as well as to solicit judges’ opinions about the current Rule 11 relative to

the proposed changes contained in the legislation. Those interests shaped

the organization and content of the survey questionnaires. The survey results in this section of the report are presented in tables and text in the order

in which the questions appeared on the survey instrument. The title of each 

table states the question asked of the judges, and the response categories are

a shorthand version of the responses called for in the questionnaire. The

preface of each questionnaire indicated in bold type that “This questionnaire

is about the effects of Rule 11 in cases in which the plaintiff is represented

by counsel.” Many of the questions were modeled on questions asked of

judges in a 1995 Center survey.2 In order to facilitate comparisons between

the findings of the 1995 survey and the current survey, we present applicable results of both surveys with appropriate references.

Frequency of Groundless Litigation

The questionnaire first asked judges about their perception of any problems

with groundless litigation and whether such problems, if they exist, had

2. John Shapard et al., Report of a Survey Concerning Rule 11, Federal Rules of Civil Procedure (Federal Judicial Center 1995) [hereinafter FJC 1995 Rule 11 Survey].
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changed since Rule 11 was last amended in 1993. Table 1 shows that 85%

of the judges described any perceived problem with groundless litigation as

being no more than a small one. Among judges commissioned before January 1, 1992, this figure was over 75%; the figure was almost 90% for judges

commissioned after that date. In our 1995 study, 40% of the judges indicated that the problem with groundless litigation was moderate to very

large;

3 only 15% believed this to be the case in the current study.

Table 1

Responses to Question 1.1, Is there a problem with groundless litigation in federal civil

cases on your docket?

Possible Answer

All Judges

(N=276)

4

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=148)

No problem 15% 13% 16%

Very small problem 38% 31% 43%

Small problem 32% 34% 30%

Moderate problem 12% 16% 9%

Large problem 2% 2% 2%

Very large problem 1% 3% 0%

I can’t say 0% 1% 0%

The questionnaire next asked whether such problems, if they exist, had

changed since Rule 11 was last amended in 1993. Table 2 shows that about

7% said that the problem had increased. More than half said that the problem was the same, and 12% said that there has never been a problem.

Judges commissioned after January 1, 1992, were more likely to say that

there has never been a problem but, if there is a problem, it is about the

same as it was during their first year on the bench.

3. Id. at 3.

4. N refers to the number of judges who answered the question. The value of N varies across tables because of differences in the number of judges who answered a particular question. Percentages

in columns with results for all judges are weighted to reflect the fact that, by drawing two samples

independently from two groups of judges, we have a stratified sample. In this case, weighted results

for the entire sample are appropriate. Weighting is unnecessary for results reported separately by

group. Finally, as a result of rounding, column percentages may not sum to 100.
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Table 2

Responses to Question 1.2, Is the current problem (if any) with groundless litigation in civil

cases on your docket smaller than, about the same as, or larger now than it was

before Rule 11 was amended? (asked of pre-1992 judges) or

during your first year as a federal district judge? (asked of post-1992 judges)

Possible Answer

All Judges

(N=276)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=148)

There has never been a problem 12% 9% 14%

The problem is much smaller

now than it was then

8% 11% 6%

The problem is slightly smaller

now than it was then

11% 14% 9%

The problem is the same now as

it was then

54% 48% 59%

The problem is slightly larger

now than it was then

6% 5% 7%

The problem is much larger now

than it was then

1% 2% 1%

I can’t say 7% 11% 4%

“Safe Harbor” Provision and Rule 11 Activity

The questionnaire asked judges if they supported or opposed the Rule 11

“safe harbor” provision, which was added as part of the 1993 amendments.

Table 3 shows that 86% of the judges said they supported it, with the majority of the judges expressing strong support. Table 3 also shows somewhat

stronger support among judges commissioned after 1992. This subgroup has

very little or no experience with the pre-1993 version of Rule 11, which did 

not include the safe harbor provision. Overall, the percentage of judges supporting the safe harbor has increased from 70% to 86% since 1995; judges

showing strong support has increased from 32% to 60%. The percentage of

judges opposing the safe harbor has decreased from 16% to 10%.

5

5. FJC 1995 Rule 11 Survey, supra note 2, at 4.
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Table 3

Responses to Question 2.1, Based on your experience and your assessment of what would

be fairest to all parties, do you oppose or support Rule 11’s “safe harbor” provision?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Strongly support 60% 53% 65%

Moderately support 26% 25% 26%

Moderately oppose 6% 9% 3%

Strongly oppose 4% 5% 2%

I find it difficult to choose 4% 6% 3%

I can’t say 1% 1% 1%

The questionnaire contained a follow-up question for the pre-1992

judges about changes in Rule 11 activity as a result of the addition of the

safe harbor provision. Judges commissioned prior to 1992 were asked how

the safe harbor provision has affected the amount of Rule 11 activity since

the provision went into effect in 1993. Table 4 shows that 45% of these

judges reported that Rule 11 activity had decreased, either slightly or substantially, and 29% reported that activity was about the same. Only 5% reported increases in Rule 11 activity, and 21% indicated that they could not

give a definitive answer to this question. Similarly, judges commissioned

after 1992 were asked about Rule 11 activity since their first year on the

bench. Table 4 shows that almost two-thirds of the post-1992 judges reported that Rule 11 activity had remained about the same, 22% reported decreases, and 7% reported increases.
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Table 4

Responses to Question 2.2,

How has the safe harbor provision affected the amount of Rule 11 activity on your docket

since it went into effect in 1993? (asked of pre-1992 judges) or

Since your first year as a district judge what, if any, changes have you observed in the

amount of Rule 11 activity on your docket? (asked of post-1992 judges)

Possible Answer

Judges

Commissioned

Before 1/1/92

(N=127)

Judges

Commissioned

After 1/1/92

(N=148)

Increased substantially 1% 0%

Increased slightly 4% 7%

About the same 29% 65%

Decreased slightly 17% 12%

Decreased substantially 28% 10%

I can’t say 21% 6%

Rule 11 Sanctions

The current version of Rule 11 allows a district judge to impose sanctions

for violations of the rule, at his or her own discretion, with the purpose of

deterring similar conduct in the future. H.R. 4571 would require sanctions

for every violation, with the purpose of compensating the injured party for

reasonable expenses and attorney fees as well as to deter repetitions of such 

conduct.

The judges were asked first whether sanctions, monetary or nonmonetary, should be required. Table 5 shows that 91% said that sanctions should

not be required. Among judges commissioned before 1992, 86% said sanctions should not be required; for judges commissioned after 1992 the figure

was 95%. In 1995, 22% of the judges thought that a sanction should be required for every Rule 11 violation, compared with 9% who think so now.

6

6. Id. at 6.
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Table 5

Responses to Question 3.1, Should the court be required to impose a monetary or

nonmonetary sanction when a violation is found?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Yes 9% 13% 5%

No 91% 86% 95%

I can’t say 0% 1% 0%

Judges were next asked whether an award of attorney fees, sufficient to 

compensate the injured party, should be mandatory when a sanction is imposed. Table 6 shows that 84% of the judges said no. The result is approximately the same whether the judges were commissioned before or after

1992. The percentage of judges favoring mandatory attorney fees for Rule

11 violations was 15% in both the 1995 and 2005 surveys.

7

Table 6

Responses to Question 3.2, When a sanction is imposed, should it be mandatory that the

sanction include an award of attorney fees sufficient to compensate the injured party?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Yes 15% 14% 16%

No 84% 85% 83%

I can’t say 1% 1% 1%

Regarding the proposed legislation’s inclusion of financial compensation

as a general purpose for Rule 11, judges were asked what should be the

purpose of Rule 11. Almost 100% of the judges said that a purpose of Rule

11 should be deterrence. Their views were split on the role of compensation. The results in Table 7 reveal that slightly more than half, 55%, said 

that the purpose should be deterrence and compensation; 44% said that the

purpose should be deterrence, with compensation if needed for the sake of

deterrence. Reading the Table 7 results in light of the opinions expressed in

7. Id.
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Table 5 and 6, it appears that most judges who favor compensating the opposing party do not favor such compensation in all cases and do not necessarily favor compensation in the form of attorney fees. In the 1995 survey,

66% of the judges thought that Rule 11 should include both compensatory 

and deterrent purposes.

8

Table 7

Responses to Question 3.3, What should the purpose of Rule 11 sanctions be?

Possible Answer

All Judges

(N=275)

Judges

Commissioned

Before 1/1/92

(N=126)

Judges

Commissioned

After 1/1/92

(N=149)

Deterrence (& compensation if warranted) 44% 40% 46%

Compensation only 0% 1% 0%

Both deterrence & compensation 55% 58% 53%

Other 1% 1% 1%

Three Strikes

Under the proposed legislation, when an attorney violates Rule 11 the federal court would determine how many times that attorney had violated Rule

11 in that court during the attorney’s career. If that attorney had committed 

three or more violations, the court would suspend for one year the attorney’s license to practice in that court.

To gauge the frequency with which this portion of the proposed Rule 11 

might be invoked, judges were asked whether they had encountered an attorney with three or more violations in their district. Table 8 shows that

77% of the judges reported that they had not. Of the remaining 23%, more

than half were not sure if they had encountered an attorney with three or

more violations. Judges commissioned before 1992 were more likely to say 

they had encountered such an attorney. This result may, of course, be

largely the result of their longer time on the bench.

8. Id.
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Table 8

Responses to Question 4.1, In your experience as a district judge, have you encountered an

attorney who has violated Rule 11 three or more times in your district?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Yes 11% 15% 8%

No 77% 71% 81%

I can’t say 12% 14% 11%

At present, the efforts and methods required to enable courts to track attorney violations, in order to apply the proposed legislation’s “three strikes”

provision, are unknown. Judges were asked for their views, which are reported in Table 9. The choices were not mutually exclusive: Judges could

check more than one response and therefore the percentages do not sum to

100. The most frequent response, given by 48% of the judges, was that a

new database would be required to track Rule 11 violations. Examination of

prior docket records was the next most frequent response, given by 35% of

the judges. Only 4% said that little or no additional effort would be required, and nearly one-third (32%) were unsure about what would be

needed to apply the three strikes provision.
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Table 9

Responses to Question 4.2, In your district, how much effort would be required to obtain

information about the number of prior Rule 11 violations committed by an attorney during

his or her career?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Little or no additional effort 4% 3% 5%

Examining prior docket records for

past violations

35% 35% 34%

Creating a new database for Rule 11

violations

48% 53% 44%

An affidavit or declaration from each

attorney

19% 17% 20%

Other court action 3% 2% 3%

I can’t say 32% 29% 34%

Judges were next asked their views on the impact of the proposed three

strikes provision in deterring groundless litigation relative to the cost of implementation and in light of their courts’ existing procedures for disciplining attorneys. Table 10 shows that 40% felt that the cost of implementation

would exceed the deterrent value, while 25% of the judges felt that the

value of the deterrent effect would exceed the cost of implementation. However, 27% were unsure about the tradeoff between cost and deterrent effect.

Judges commissioned after 1992, compared with those commissioned

earlier, were more likely to view the cost as exceeding the value of the

proposed legislation and were less likely to view the deterrent value as exceeding the cost. They were also more likely to express uncertainty over the

tradeoff.
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Table 10

Responses to Question 4.3, Which of the following statements best captures your

expectations regarding the impact of the proposal in deterring groundless litigation in

comparison to the cost of implementing the proposal in your district?

Possible Answer

All Judges

(N=277)

Judges

Commissioned

Before 1/1/92

(N=128)

Judges

Commissioned

After 1/1/92

(N=149)

Value of the deterrent effect

would greatly exceed its cost

16% 15% 16%

Value of the deterrent effect

would somewhat exceed its cost

9% 11% 7%

Value of the deterrent effect

would about equal its cost

9% 13% 7%

Cost of implementing the

proposal would somewhat exceed

the value of the deterrent effect

10% 6% 13%

Cost of implementing the

proposal would greatly exceed the

value of the deterrent effect

30% 32% 28%

I can’t say 27% 23% 30%

Application of Rule 11 to Discovery

The proposed legislation would extend Rule 11’s application to discoveryrelated activity. Standards and sanctions for discovery are currently covered 

by Federal Rules of Civil Procedure 26(g) and 37, and the proposed legislation would augment these rules with an expanded Rule 11. The sampled 

judges were asked their opinion on the best combination of rules and sanctions. Table 11 shows that 72% of the judges (compared with 48% in 1995)

9

feel that the best option is the current version of Rule 11; 14% favored the

proposed legislation. Judges commissioned after 1992 were a little more

likely to favor the current version of the rule than judges commissioned before 1992.

9. Id. at 7.
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Table 11

Responses to Question 5, Based on your experience, which of the following options do you

believe would be best?

Possible Answer

All Judges

(N=276)

Judges

Commissioned

Before 1/1/92

(N=127)

Judges

Commissioned

After 1/1/92

(N=149)

Sanctions provisions

contained only in Rules

26(g) and 37

72% 68% 75%

Sanctions provisions

contained in Rules 26(g),

37, and 11

13% 15% 12%

Sanctions provisions

consolidated in Rule 11

5% 7% 3%

No significant difference

among the three options

5% 6% 4%

I can’t say 5% 5% 5%

How to Control Groundless Litigation?

To gauge judges’ overall views on the proposed legislation and on controlling groundless litigation, the judges were asked whether Rule 11 should be

modified. Table 12 shows their responses to the given options. The great

majority of judges (81%) said that Rule 11 is just right as currently written.

In 1995, 52% of the judges indicated that the same version of Rule 11 was

just right as written. In 2005, there were differences among judges depending on when they were commissioned: 71% of judges commissioned before

1992 agreed that the current Rule 11 is just right, compared with 89% of

judges commissioned afterwards. There was almost no support for modifying Rule 11 to reduce the risk of deterring meritorious filings, and only

some support, primarily among the longer-serving judges, to modify Rule

11 to more effectively deter groundless filings.
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Table 12

Responses to Question 6, Based on your view of how effective or ineffective these other

methods are, how, if at all, should Rule 11 be modified?

Possible Answer

All Judges

(N=270)

Judges

Commissioned

Before 1/1/92

(N=124)

Judges

Commissioned

After 1/1/92

(N=146)

Modified to increase its

effectiveness in deterring

groundless filings

13% 21% 7%

Rule 11 is just right as it now

stands

81% 71% 89%

Modified to reduce the risk

of deterring meritorious

filings

1% 2% 1%

Rule 11 is not needed 1% 2% 1%

I can’t say 3% 4% 3%

Finally, the judges were asked which version of Rule 11 they would prefer to have if and when they have to deal with groundless litigation. Given 

the choice among the current version of Rule 11, the pre-1993 version, or

the proposed legislation, 87% of the judges preferred the current version.

The percentages for surveyed judges commissioned before and after 1992

are 83% and 91%, respectively. There was little support expressed for either

the pre-1993 version or the version contained in H.R. 4571.

Table 13

Responses to Question 7, Proposed legislation would repeal the safe harbor provision in

Rule 11 and require that the court shall impose an appropriate sanction on a party or

attorney who signed a pleading, motion, or other paper in violation of Rule 11 standards.

Which approach would you prefer in dealing with groundless litigation?

Possible Answer

All Judges

(N=271)

Judges

Commissioned

Before 1/1/92

(N=123)

Judges

Commissioned

After 1/1/92

(N=148)

The current Rule 11 87% 83% 91%

The 1983–1993 version

of Rule 11

5% 7% 4%

The proposed legislation 4% 7% 2%

I can’t say 4% 4% 3%
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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Conclusion

Based on their experiences in managing groundless civil litigation in their

own courts, federal district judges find the current Rule 11 to be well suited

to their needs. Almost all of the judges reported that, in their experience,

groundless civil litigation is a small or at most a moderate problem. District

judges’ views on proposed changes to Rule 11 appear to be consistent with

their experiences on the federal bench. Substantial majorities of the responding judges said, in effect, that none of the proposals for changing Rule

11—that is, proposals for mandatory sanctions, mandatory attorney fee

awards, removal of the safe harbor, and application of Rule 11 to discovery

disputes—would resolve problems that district judges are experiencing.
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Appendix A

Method

Separate forms of the questionnaire were E-mailed by Center staff with a

cover letter from the chair of the Advisory Committee to two samples of

active and active-senior federal district court judges. The samples, each one

of 200 judges, were separately and randomly selected from within two

groups of judges defined by their commission date. Judges commissioned

before January 1, 1992, formed one group; judges commissioned on or after

that date formed the other. This date was selected in order that all judges in

the first group would have had at least one year on the bench before the

1993 amendments to Rule 11 went into effect. This group of judges received a form of the questionnaire that, where necessary, asked them to use

their pre-1993 period on the bench as a basis for comparison. The second 

group of judges received a questionnaire that instead asked them to use their

first year on the bench as their basis for comparison. A composite of the two

versions of the questionnaire is contained in Appendix B.

In order to quickly and easily convert the returned questionnaires into

data files, Center research staff used special software to produce and read

the questionnaires. Each of the two forms of the questionnaire was converted to Portable Document Format (PDF) and sent via E-mail to the 400

sampled judges. Each judge’s file was named using a sequential, numbered 

ID that was used to track returned questionnaires for follow-up purposes.

Upon receipt of the file, the judges were able to open the PDF file, answer

the questions, save the file, and return it via E-mail. The software that produced the files was used to convert the returned questionnaires to a data file

for analysis. Judges were also given the option of printing the PDF file,

completing it, and faxing it to a fax server at the Center. Of the 280 responses received, 44 were returned via E-mail; the remainder were returned 

via fax. The questionnaires were sent on December 9, 2004, and a reminder

was sent on January 3, 2005, to judges who had not yet responded. The response rates for the two samples were different. Post-1992 judges were

more likely to return the questionnaire (74%) than were pre-1992 judges

(64%).

The sample procedure described above produced a stratified sample in

which the judges’ commission dates defined the strata. In order to correctly

interpret results for the sample of all judges, when reported, these data were

weighted to reflect the fact that different sampling fractions were used for
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the different strata. Results reported separately by strata do not require

weighting.
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Appendix B

Questionnaire

The questionnaire sent to judges commissioned before January 1, 1992 is reproduced below.

Questions 1.2 and 2.2 differed in the version sent to judges commissioned on or after that date.

The differences are indicated by bracketed text. Bold and underlined text was in that format in

the original questionnaires.

RULE 11 SURVEY

PURPOSE AND INSTRUCTIONS. Federal Rule of Civil Procedure 11 (Rule 11) provides

sanctions for presenting a pleading, written motion, or other paper without reasonable support in

fact or law or for an improper purpose, such as to cause unnecessary cost or delay. This

questionnaire seeks information from you about how Rule 11 is working and also seeks your

evaluation of several issues concerning Rule 11 and current Congressional proposals to amend

that rule. Rule 11 provides that sanctions for violations are within the judge’s discretion; that a

party should have a period of time, a “safe harbor,” within which to withdraw or correct a filing

alleged to violate Rule 11; and that Rule 11’s primary purpose is to deter future violations and 

not necessarily to compensate the opposing party for losses, including attorney fees.

Proposed legislation (HR 4571, adopted by the House of Representatives on September

14, 2004) would amend Rule 11 to provide that sanctions for violations be mandatory, repeal the

safe harbor, and require courts to order compensation to a party for attorney fees incurred as a

direct result of a Rule 11 violation. The proposed legislation would reverse three changes made

by Rule11 amendments adopted in 1993, namely to delete mandatory sanctions, to

deemphasize attorney fee awards, and to create a safe harbor. The proposed legislation also 

requires a district court to suspend an attorney’s license to practice in that district for one year if

the attorney has violated Rule 11 three or more times in that district.

This questionnaire is about the effects of Rule 11 in cases in which the plaintiff is 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 the plaintiff is proceeding pro se.

Please respond to the questions on the basis of your own experience as a judge with cases on your docket,

not the experiences of other judges or attorneys.

For convenience, throughout this questionnaire we refer to pleadings, written motions, and other papers

that do not conform to the requirements of Rule 11 as groundless litigation.

Please respond by marking the box next to your answer.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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1. FREQUENCY OF GROUNDLESS LITIGATION

1.1 Is there a problem with groundless litigation in federal civil cases on your docket? 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 smaller, about the 

same as, or larger than it was before Rule 11 was amended in 1993? [Is the current problem (if any) with

groundless litigation in civil cases on your docket smaller, about the same as, or larger than it was during your 

first year as a federal district judge?] Please mark one.

a) There has never been a problem.

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

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

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

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

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

g) I can't say.

2. THE SAFE HARBOR PROVISION. Rule 11 provides that a motion for sanctions shall not be filed

with the court until 21 days after a copy is served on the opposing party. This provision creates a "safe

harbor" by specifying that a party will not be subjected to sanctions on the basis of another party's motion

unless, after receiving the motion, the party fails to withdraw or correct the challenged filing. 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 provides 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.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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2.1 Based on your experience and your assessment of what would be fairest to all parties, do you oppose or 

support Rule 11’s "safe harbor" provision? Please mark one.

a) I strongly support Rule 11’s safe harbor provision.

b) I moderately support Rule 11’s safe harbor provision.

c) I moderately oppose Rule 11’s safe harbor provision.

d) I strongly oppose Rule 11’s safe harbor provision.

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 How has the safe harbor provision affected the amount of Rule 11 activity on your docket since it went

into effect in 1993? [Since your first year as a federal district judge what, if any, changes have you observed

in the amount of Rule 11 activity on your docket?] Please mark one.

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. RULE 11 SANCTIONS. Rule 11 provides that the court "may" impose a sanction when the rule has

been violated, leaving the matter to the court’s discretion. Rule 11 also provides 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.

Proposed legislation would alter these standards and require that a sanction be imposed for every violation.

Proposed legislation would also provide that a purpose of sanctions is to compensate the injured party as

well as to deter similar conduct and would require that any sanction be sufficient to compensate the injured

party for the reasonable expenses and attorney fees that an injured party incurred as a direct result of a Rule 

11 violation.

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.

3.1 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.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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3.2 When a sanction is imposed, should it be mandatory that the sanction include an award of attorney fees

sufficient to compensate the injured party? Please mark one.

a) Yes, an award of attorney fees should be mandatory if a sanction is imposed.

b) No, an award of attorney fees should not be mandatory.

c) I can't say.

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

a) deterrence (and compensation if warranted for effective deterrence)

b) compensation only

c) both compensation and deterrence

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

4. THREE STRIKES PROVISION. Proposed legislation would require a federal district court, after it has

determined that an attorney violated Rule 11, to “determine the number of times that attorney has violated

[Rule 11] in that Federal district court during that attorney’s career. If an attorney has violated Rule 11 three

or more times, the court must suspend that attorney’s license to practice in that court for a period of one year.”

4.1 In your experience as a district judge, have you encountered an attorney who has violated Rule 11

three or more times in your district? Please mark one:

a) Yes

b) No

c) I can’t say

4.2 In your district, how much effort would be required to obtain information about the number of prior 

Rule 11 violations committed by an attorney during his or her career? Mark all that apply.

a) Obtaining such information would require little or no additional effort

b) Obtaining such information would require examining prior docket records for past violations

c) Obtaining such information would require creating a new database for Rule 11 violations

d) Obtaining such information would require an affidavit or declaration from each attorney

e) Obtaining such information would require other court action (specify) ________________

f) I can’t say
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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4.3 Which of the following statements best captures your expectations regarding the impact of the

proposal in deterring groundless litigation in comparison to the cost of implementing the proposal in

your district. In assessing the value of the proposal consider the effectiveness of existing procedures

in your district for disciplining lawyers found to have engaged in misconduct of the type forbidden by

Rule 11.Please mark one:

a) The value of the deterrent effect would greatly exceed its cost

b) The value of the deterrent effect would somewhat exceed its cost

c) The value of the deterrent effect would about equal its cost

d) The cost of implementing the proposal would somewhat exceed the value of the deterrent effect.

e) The cost of implementing the proposal would greatly exceed the value of the deterrent effect.

f) I can’t say

5. APPLICATION TO DISCOVERY. Rule 11 does not apply to discovery-related activity because Federal

Rules of Civil Procedure 26(g) and 37 establish standards and sanctions that apply to discovery disclosures,

requests, responses, objections, and motions. Proposed legislation would amend Rule 11 to make it

applicable to discovery-related activity.

Proponents of that legislative proposal argue that including discovery under Rule 11 or under Rule 11

together with Rules 26(g) and 37 is more effective in deterring groundless discovery-related activity than

Rules 26(g) and 37 alone. Opponents of that proposal support the current version of Rule 11 and 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.

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.
Report of a Federal Judicial Center Survey on Fed. R. Civ. P. 11

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6. RULE 11 AND OTHER METHODS OF CONTROLLING GROUNDLESS LITIGATION. Federal

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

number of opportunities and methods for deterring or minimizing the harmful effects of groundless

claims, defenses, or legal arguments (e.g., informal admonitions, Rule 16 and Rule 26(f) conferences, 28

U.S.C. Section 1927, prompt dismissal of groundless claims, summary judgment). 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 reduce the risk of 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.

7. PREFERENCE FOR CURRENT OR PAST VERSIONS OF RULE 11 OR PROPOSED LEGISLATION.

The version of Rule 11 in effect from 1983 to 1993 required that the court shall impose an

appropriate sanction on a party or attorney who signed a pleading, motion or other paper in violation of Rule 

11 standards. The appropriate sanction may, but need not, have included an order to pay the opposing party’s

reasonable attorney fees.

Rule 11 now provides that a court may impose an appropriate sanction on a party or attorney who

signed a pleading, motion or other paper in violation of Rule 11 standards. The appropriate sanction may, but

need not, include an order to pay the opposing party’s reasonable attorney fees. Rule 11 also provides a safe 

harbor that permits withdrawal without penalty of a filing that allegedly violates Rule 11, as long as the 

withdrawal takes place within 21 days of notice that another party intends to file a motion for Rule 11

sanctions.

Proposed legislation would repeal the safe harbor provision in Rule 11 and require that the court

shall impose an appropriate sanction on a party or attorney who signed a pleading, motion or other paper in

violation of Rule 11 standards. The proposed legislation would also require that the appropriate sanction be 

sufficient to compensate the parties injured by the conduct, including reasonable expenses and attorney fees.

Which of the above approaches would you prefer to use in dealing with groundless litigation? Please mark

one.

a) I prefer the current Rule 11

b) I prefer the 1983-1993 version of Rule 11

c) I prefer the proposed legislation

d) I can’t say

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

Magistrate Judge Robert B. Collings, U.S. District Court for the District of

Massachusetts

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Chief Judge Robert F. Hershner, Jr., U.S. Bankruptcy Court for the Middle District of

Georgia

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

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

Director

Judge Barbara J. Rothstein

Deputy Director

Russell R. Wheeler

About the Federal Judicial Center

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

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), 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 seven

judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges and

court staff, including satellite broadcasts, video programs, publications, curriculum

packages for in-court training, and Web-based programs and resources. The Research

Division examines and evaluates current and alternative federal court practices and

policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with

two units of the Director’s Office—the Systems Innovations & Development Office

and Communications Policy & Design Office—in using print, broadcast, and on-line

media to deliver education and training and to disseminate the results of Center research. The Federal Judicial History Office helps courts and others study and preserve

federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries and assesses how to inform

federal judicial personnel of developments in international law and other court systems that may affect their work.