One of the goals of the 1993 amendments to the Federal Rules of Civil Procedure was to reduce the frequency of motions and cross-motions for Rule 11 sanctions, in recognition of the time and resources spent litigating such motions. To accomplish these objectives, Rule 11 was amended to require a party, prior to filing a motion for sanctions with the court, to serve the motion on the opposing party and provide a 21-day “safe harbor” period during which the allegedly offending pleading could be withdrawn or amended and the sanctions motion thereby avoided.
Those efforts were largely successful, at least in part because the changes added substantial time and expense to making a sanctions motion. Indeed, the revised process created the real possibility that the opponent’s pleading would be amended and the sanctions motion never heard. Thus, over the past two decades, sanctions motion practice has become a relatively small part of litigation in commercial cases in federal court, typically reserved by most practitioners for rare and truly egregious misconduct. In the view of some, this development also improved the civility among litigators, lowering the name-calling and hyperbolic accusations that some lawyers liked to use as weapons in civil litigation.
