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No. 1 Reason for Lawyer Sanctions in 8th Circuit: Frivolous Claims
The National Law Journal
August 18, 2008
Frivolous claims in cases before the 8th U.S. Circuit Court of Appeals were the most likely reason lawyers were slapped with sanctions in nearly 100 cases during the past 14 years, the preliminary results of a University of Iowa College of Law study showed.
Such frivolous conduct was behind 32, or one-third, of the 96 cases in which sanctions were issued by judges in the circuit from 1994 through this year, according to the study by law professor Margaret Raymond. Sanctions for that bad behavior were nearly three times more common than the second-biggest cause, which was failure to comply with discovery orders or rules.
Raymond undertook the study to explore some fundamental questions about the nature of sanctions, such as: Are certain lawyers sanctioned more often than others, and how big are sanctions generally? She excluded some types of cases from the study, such as bankruptcy cases and those that included contempt of court.
"You do sometimes see cases in which it looks like the lawyer doesn't have a lot of experience in federal court," Raymond said during a presentation of the preliminary results at the annual 8th Circuit Judicial Conference in Chicago this month.
In some instances, she reduced the pool of cases to better understand general patterns. For instance, she excluded the extensive products liability litigation related to the Bayer AG anticholesterol drug Baycol in analyzing some of the data.
The sanctions, which can be monetary or nonmonetary, most often required payment of attorney fees and expenses to the other side. Sanctions cost more than $50,000 in 6 percent of an 87-case sample, between $25,000 and $50,000 in 3 percent of the cases, and less than $200 in 31 percent, the results showed. The only two characteristics that the small number of sanctions greater than $25,000 shared were that lawyers in those cases tried to relitigate matters that had already been decided or tried to mislead or lie to the court.
The legal authority for the sanctions was drawn from Federal Rules of Civil Procedure 11, 16, 26 and 37; §1927 of U.S.C. 28; and the inherent court powers derived from Chambers v. NASCO Inc., 501 U.S. 32 (1991). The most common infraction in the full 96-case sample was against Rule 37 in failing to comply with discovery orders, but when the Baycol litigation was eliminated from the sample, the most common misstep in 65 cases was with respect to Rule 11, relating to misconduct in filing of briefs, motions or other documents.
"The judges seemed to be using fairly flexible ways in which to impose the sanctions they think are just," Raymond said in an interview.
Plaintiffs lawyers in civil rights cases were the most likely type of lawyer to be sanctioned, while plaintiffs lawyers in general commercial litigation were the second most likely to be sanctioned, the results showed.
The study didn't pinpoint any "hanging judges," or those who were more likely to sanction lawyers, Raymond said. Rather, she found "a distinct scattering" of the sanctions across the circuit, she said.
Raymond also noted that there were few referrals for attorney discipline in the cases that led to sanctions.
