Observations on Recent Efforts to Deter Frivolous Papers in the Illinois Circuit Courts

Recently, significant legislative initiatives have been made to deter the filing of frivolous papers in the Illinois Circuit Courts. These initiatives authorize the imposition of sanctions on those who file litigation papers determined to be without adequate support. The 1986 amendments to section 2-611 of the Illinois Code of Civil Procedure and the 1989 Illinois Supreme Court's adoption of Rule 137 represent the most significant of these legislative initiatives. These changes in Illinois law were comparable to the procedural law changes effected recently for many other state trial courts and for the federal district courts. This nationwide outburst of change regarding litigation papers, in large part, was sparked by the 1983 amendments to Rule 11 of the Federal Rules of Civil Procedure. The amendments to Illinois Code of Civil Procedure section 2-611 constituted an effort to create a more stringent sanction for ill-founded claims in otherwise meritorious cases. The amendments were patterned after Federal Rule of Civil Procedure 11, and were thought to depart so substantially from earlier provisions that existing cases likely were to have only a "general continuing relevance." In particular, the amendments covered every pleading, motion or other paper (not only allegations and denials); included all such papers regardless of their truthfulness (not only untrue papers); expressly required that a reasonable inquiry be undertaken before a paper is filed; and, encompassed both party and attorney conduct (not only party conduct). The adoption of Rule 137 was said to render section 2-611 obsolete." Yet, like section 2-611, the new rule substantially tracks Federal Civil Rule 11. Unlike Rule 11 and section 2-611, however, the new Illinois rule does not require the imposition of a sanction for any violation and includes an express requirement that the trial judge "set forth with specificity the reasons and basis of any sanction" that is imposed. Illinois judges, like federal and other state court judges, have had significant difficulties employing the recent legislative initiatives on frivolous papers. Besides grappling with how to exercise the broad discretionary authority over the choice and severity of sanctions, courts remain uncertain about such questions as 1) what constitutes a reasonable inquiry; 2) when is an assertion well-grounded in fact, warranted by existing law, or a good faith argument for a change in the law; 3) what forms of sanctions are available to trial judges; 4) what are the differences in the standards for lawyer and party conduct; and, 5) how should judges handle papers that were reasonable when filed, but that remain on file though no longer reasonable? In a recent survey distributed to Illinois Associate Judges attending the 1989 Associate Judges Meeting, judicial responses indicated that significant difficulties continue in both the interpretation and the application of the Illinois laws governing frivolous papers. In an effort to reduce some of the difficulties, this Article will briefly review Illinois frivolous paper laws. It will then describe the litigation event on which the survey was based. The responses to this survey will be discussed in order to elucidate some of the difficulties indicated by the participants. The Article concludes with recommendations for addressing some of the problems posed by the new frivolous paper laws.