Amendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 online

We have the most experimental work in the country going on I
think at the moment in Phoenix, and what is happening there is



55

that we have a court reporter but we have the video in the actual
courtroom and we are seeing the text of the testimony on the
screen within seconds of its utterance; and it can be printed off
automatically, you can find what you want. And the plain fact is
that a nation tnat can put a man on the moon is not going to let
trials be held up for months and months while people hammer out
mechanical stuff that doesn't need to be hammered out.

The fact also is that this is an honorable and worthy profession
and deserves some protection. I have made the suggestion in my
testimony that you give serious thought in any report you have to
making clear that for at least a 10-year period, a period of transi-
tion, you will not welcome and will not encourage any further ac-
tion which may have the effect of restricting court reporter func-
tions. This becomes experimental and limited; a period of transition
is in order. This is commonly done in industry as technological im-
provements take place, and you might want to give some sympa-
thetic thought to tnat.

My main thought, however, is that I hope you move this package.
There are so many things here that are really worthwhile that will
really help, let it not please be tied up with doubt over details.

Mr. Chairman, I thank you very much.

Mr. Hughes. Thank you, Mr. Frank.

[The prepared statement of Mr. Frank follows:]

Prepared Statement of John P. Frank, Senior Partner, Lewis and Roca Law

Firm, Phoenix, AZ

My name is John P. Frank and am the senior partner of the law firm of Lewis
and Roca in Phoenix, Arizona. I attach my Who's Who * identification to this state-
ment and will say briefly only that I have my law graduate degrees from the Uni-
versity of Wisconsin and Yale Law School and prior to September 15, 1954, taught
law at Indiana University and at Yale, in both schools teaching procedure. I have
taught on shorter term bases at various schools in the United States and have lec-
tured, commonly on either constitutional or procedural subjects, in many states. I
am the author of numerous books and articles on court administration and proce-
dure and constitutional and legal historical subjects.

I served on the then Supreme Courts Advisory Committee on Civil Procedure by
appointment of Chief Justice Warren under the chairmanship of Mr. Dean Acheson
from approximately 1960 to 1970. I was a member and from time to time chairman
of the Arizona State Committee for Civil Procedure for some thirty years and have
participated in and have appeared at all hearings by the Committee on the Rules
of Civil Procedure from 1960 to the present time. I have repeatedly appeared before
House and Senate committees on jurisdictional and procedural matters.

In connection with the rules presently before this Committee, I have been active
in connection with them throughout their several year history. An informal commit-
tee consisting of Professor Judith Resnik of the University of Southern California
Law School, my partner Janet Napolitano who is now chairman of the Arizona State
Committee for Civil Procedures and is our U.S. Attorney designate, and I have var-
iously divided up the rules. In behalf of all of ourselves and of other groups, we pre-
sented positions on the various rules at public hearings.

I am, thus, acquainted with all of the rules and have taken a stand on all of them.
In our division of labor my particular assignment was Rule 11, the sanctions rule.
As I shall elaborate in connection with that rule, on Rule 11 I presented the views
of numerous United States Court of Appeals Circuit and District judges, the leader-
ship of the Litigation Section of the American Bar Association, the Board of Gov-
ernors of the American Trial Lawyers Association, the committee on civil procedure
of the American College of Trial Lawyers, and the views of numerous state bars.
In this connection I worked particularly closely with the New York Bar and the out-
standing chairman of its civil procedure committee, Judge Hugh Jones, formerly of



•The statement was not made a part of the hearing record and is therefore retained in sub-
committee files for pubhc review upon request.



56

the New York State Court of Appeals. I also represented the views of the leadership
of civil rights groups on the Rule 11 problems.

I. THE GENERAL VIEW

Permit me to begin by stating two conclusions:

1. I hope that this Committee will conclude to let all of these proposals take effect.
The package is not perfect and if 1 were writing the rules I would not have all of
them as they are here. But the procedure has been extremely fair and thorough.
We of the bar or of academia, and, indeed, thosejudges who wished to express
themselves, had our innings before Judge Pointer. The hearings were thorough and
fair.

The same has been true up the line. Judge Keeton has conducted the proceedings
of the Standing Committee with exemplary fairness and thoroughness. He has made
himself available for informal discussions. The review by the Standing Committee
was very thorough. Moreover, the review by the Judicial Conference of the United
States was also far from cursory. Indeed, the Judicial Conference very wisely de-
leted one rule. I mention that action only to highlight fact that the Judicial Con-
ference review is not perfunctory, but, indeed, represents contemplative judgment.

It is part of the lawyer's job to advocate, and wnen he has been heard, to acqui-
esce in the conclusions. The statute permits intervention by Congress at this stage;
your role is not perfunctory either. But there is, I believe, no difierence so grave
that it warrants your always unusual power of intervention.

2. Please permit me to applaud the Committee and its staff for your prompt atten-
tion to these rules problems. You have many demands upon your time. WhUe not
many of these rules are in the slightest degree controversial, a couple of them are.
The rules will go into efiect unless adverse action or staying action of some kind
is taken before November 1. Your scheduling this hearing so promptly is clear evi-
dence that you are tending to this business without delay. Some of the rules
changes are relatively minor, but some of them are genuinely important and the bar
and the courts will benefit greatly by your early attention.

II. THE MATTERS NOT WARRANTING DISCUSSION HERE

While the changes are generally improvements, a good many of them do not reach
the level which seems to require Congressional attention. While I may be wrong as
to some of these, and if so I ask to be questioned concerning them, I will otherwise
put aside the following

Rule 1. An amiable piety on the administration of the rules.

Rule 2. Changes in the methods of serving summonses. The rule is intended to

fromote economy and it probably will. I must in integrity acknowledge to you that
find it a long-winded efiusion which will be more nuisance to the bar than profit,
and it illustrates the kind of change which I would not of my own motion have
made, but its purpose is good and it is not important enough to be worth your atten-
tion.

Rule 5. This is a small improvement to permit local courts to permit electronic
filing and is clearly a good idea.

Rule 12. This rule on time for response is essentially an adaptation to the new
summons rule previously identified.

Rule 15. This is merely a cross reference.

Rule 16. This makes a number of changes in the pretrial conference. It does not
truly broaden authority as much as it gives a kind of a checklist or schedule to the
court and the parties as to what can come up at the pretrial conference. Rule 16
for some time has been serving fundamentally as such a checklist and this broadens
this function. It will be particularly useful for new judges and for the less experi-
enced members of the bar.

Rule 28. This is the detail concerning depositions in foreign countries, conforming
that procedure to treaty practice.

Rule 29. This tightens trial scheduling by encouraging parties to work out discov-
ery matters informally except where they would delay trials. It represents what
good lawyers have been doing and is a worthwhile encouragement.

Rule 30. The larger portion of this rule deals with electronic depositions and that
matter will be discussed separately. But the other changes, in any case, are minor
and good.

Rule 31. This is an improvement in the procedures in taking depositions of pris-
oners; it is not a matter of broad concern.

Rule 32. This essentially conforms the use of depositions to the new procedures
for taking them. If Rule 30 were seriously altered. Rule 32 would neea attention
as well.



57

Rule 33. This rule limits the number of interrogatories and slightly changes the
procedure for objections to them. A similar proposal was made some ten or more
years ago at the Committee stage and was opposed by Judge Mary M. Schroeder
of the Ninth Circuit Court of Appeals and by me both at the hearing in San Fran-
cisco and in an article in the American Bar Association Journal. We then believed
that the limitation on the number should be the product of more experimentation
at the district courts. The rule was not then adopted. That experimentation has oc-
curred and it is now clear that these limitations are highly beneficial, and moreover
that they make litigation much less expensive. I do, therefore, now warmly, however
belatedly, endorse this proposal and regard it as genuinely important; interrog-
atories have grown out of all reason. It is one of the best features of this new series
of rules.

Rule 34. This rule on production of documents is simply an adaptation to other
changes.

Rule 36. This rule on admissions is, likewise, simply an adaptation to other
changes.

Rule 37. This rule deals with the failure to make disclosure or to cooperate in dis-
covery. It is, at least generally, a clear improvement in encouraging cooperation
amongst attorneys in solving these problems without burdening the courts with
them. It stiffens the sanctions for failure of honest disclosure and I am afraid that
this is probably necessary. These changes are generally of some importance and are
not believed to be seriously controverted in any quarter.

Rule 38. This is a minor correction in the method of demanding jury trial.

Rule 50. This is a technical amendment on judgments as a matter of law.

Rule 53. This is a very minor adapting change concerning masters.

Rule 54. This is a very important and worthwhile stabilization of procedures for
establishing attorneys' fees where they are to be determined by the court. Inch by
inch we are moving more and more toward to the English rule and are allowing
courts to assess counsel fees against losing parties in a number of situations. Con-
gress has adopted some 100 fee-shifting statutes. This development creates a whole
new series of legal decisions which need to be made in determining what fees are
to be allowed. We have had no clear procedure on this and Rule 54 establishes one.
It is particularly constructive because it requires that this matter be settled prompt-
ly. This is a big improvement.

Rule 58. This rule on entry of judgment is one of the best features in the whole
package. It relates to the attorneys' fees problem and provides that the trial court
may merge the judgments on the main case and on the attorneys' fees so that there
can be only one appeal and the two matters can be decided together. This solves
a major problem and is very valuable.

Rule 71(a). This is some minor conforming detail concerning service in condemna-
tion cases.

Rule 72. This is simply a matter of labeling magistrates.

Rule 73. This is a small but real improvement on the use of magistrates, protect-
ing the parties so that they won't be pushed into accepting a magistrate if they don't
really want that method of procedure.

Rule 74. This is another matter of relabeling magistrates.

Rule 75. This is yet another matter relabeling magistrates.

Rule 76. And again, the labels of magistrates.

Summary: Twenty of the rules are minor changes which will be useful but which
probably do not deserve thought from this Committee. Rules 33, 54 and 58 are very
important. Because there appears to be no dispute concerning them, the Committee
may not wish to give them any further consideration. But they are different from
the first group in the sense that they are truly important and the bar and the courts
really need them, and need them now. They are reasons for moving this package
along.

III. THE MAJOR CHANGES
A. Rule 11

Rule 11, as adopted in 1983 and enforced today, has been described by Professor
Charles Alan Wright as the worst self-infiicted wound in the history oi the rules-
making process. It has been a blight. Seldom was an effort made with better inten-
tions or higher purposes, but, as has been trenchantly observed by Professor Judith
Resnik of the University of Southern California, most of the time rules reformers
are mopping up after the mistakes of past rules reformers; and Rule 11 is a brilliant
example.

Rule 11 is a genie which came out of a small bottle and filled all available space.
No one would have supposed in 1983 that it would be so consequential. The rule



58

is short and in both prose and intention benign. It provides that every pleading, mo-
tion and other paper must be signed by the attorney and if there is no attorney,
by the party. The signature then becomes a certificate that the attorney has made
^ reasonable inquiry and that to the best of his or her knowledge, information and
belief, the document is well grounded in fact and warranted by existing law or rep-
resents a good faith effort to alter existing law. If the pleading or motion or other
paper is found to have been signed in violation of the rule, the court is authorized
to impose an appropriate sanction which includes an order to pay to the other party
the reasonable expenses involved in countering the pleading, including attorneys
fees.

Great oaks from little acorns grow. In the less than ten years since the adoption
of Rule 11, we have had thousands of cases invoking its application. Asking for
sanctions because of challenge to the allegedly good faith inquiry into either Tacts
or law has become a major industry. It has become routine that the attorneys now
have a double duty, one to try the case and the other to try the opposing counsel.

The rule has become more of a defendant's mechanism than a plaintiffs, but the
defendants have not liked it either. Approximately 75% of the sanction applications
are against plaintiffs. Nonetheless, there are enough against defendants to create
a mutual burden. Indeed, the Rule 11 operation is just as obnoxious to the leaders
of the defense bar as it is to the plaintifi's bar. The root goal is the desire to sanc-
tion frivolous cases. The underlying problem here is that the phrase 'Trivolous
cases" has a happy ring to it as though it were saying something meaningful, when
in truth this is false. One judge's frivolous case is another's serious question. In a
Federal Judicial Center study, a group of judges who considered the same complaint
divided fifly-fifly on whether it was frivolous.'^

The system has been particularly onerous on civil rights plaintiffs.

I am aware of statements from the Federal Judicial Center that the use of Rule
11 in civil rights matters is not "disproportionate." This depends on how one meas-
ures disproportionate. It is perfectly true that in the FJC study there are more Rule
11 motions in contract and tort cases than in civil rights cases. However, there are
also vastly more contract and tort cases than civil rights cases to start with. The
percentage of civil rights cases with Rule 11 sanctions is higher than the percentage
in tort and contract cases. When we allow for these circumstances, civil rights plain-
tifTs are big losers.

I do not pause with what I think are the substantive misfortunes under Rule 11
because the point that particularly concerns me is what I think the grossly unrea-
sonable and unwholesome burden it has added to judicial administration. The Amer-
ican Judicature Society has done a major study. That study reported that in 7.6%
of the cases studied there were Rule 11 sanctions and in 24.3% there was some in-
volvement without sanctions. That meant that there had been some kind of Rule
11 activity of a formal enough sort to be noticed in a third of the cases. This in turn
means that a great number of time-consuming and dollar-consuming decision points
have been put into the legal system.

When the attention goes from the frequency of Rule 11 in a batch of cases to the
frequency of Rule 11 problems for lawyers in general, the American Judicature Soci-
ety comes up with the astonishing figure that 82% of the bar studied has had some
Rule 11 contact. This is a terrible and costly burden to put on the profession. It is

Farticularly undesirable because under Rule 11 there are no uniform standards. As
have mentioned, one Federal Judicial Study, judges divided fifly-fifly as to which
cases were and which were not frivolous.

The Judicature Society also speaks of the threat element in the Rule 11, as law-
yers charge each other. In the Seventh Circuit study on the rising incivility of the
bar, an appreciable part of it dependent on Rule 11 combat, illustrates the vices of
this system. Exchanges between lawyers of the "I'm going to get you" variety don't
help civility very much.

It is, in short, a bad rule and needs changing.

As against that background, I had the pleasure and opportunity to be coordinator
on the Bench-Bar proposal to revise Rule 11. I append a list of those who sponsored
the Bench-Bar proposal. It included an astonishingly complete representation of the
bar, the Litigation Section, ATLA, the College of Trial Lawyers, numerous state
bars, and numerous judges and professors; the list will speak for itself. We asked
for a very comprehensive revision of Rule 11.

We did not get what we asked for. I regret that. The plain fact is that the Rule
11 dispute reflects class dilTerence within the profession. Most of the judges who
have tne Rule 11 power like it. The lawyers on whom it is exercised or feel its con-
sequences do not. In the world of cats and mice, it is more attractive to be a cat.



ij. M. Kassenkissen, An Empirical Study of Rule 11 Sanctione, 26 (1985).



59

This is illustrated in the dissent by Justices Scalia and Thomas from even the mod-
est Rule 11 changes which are now before you.

Nonetheless, while the changes are less than I would have liked, the improve-
ments are noteworthy. A strenuous concern of the American College of Trial Law-
yers was the provision in the 1983 rule that sanctions were mandatory. If the judge
found any of the triggering circumstances existed, the court had no discretion to
waive the sanctions but was compelled to impose them. That aspect is changed by
the new rule. Another improvement is that the sanctioning power is broadened to
cover firms as well as persons who actually sign documents in court. Frequently the
signer is a junior attorney who is simply doing what he is told. He is not a policy
maker. It would have been better to eliminate any sanctions on such persons, but
at least now the courts will have discretion to put the responsibility where it be-
longs, which is on the firm itself.

The worse feature of the 1983 rule, which I have already mentioned, is that the
rule became a fee-shifting device so that the prevailing lawyer was required to try
to get his fees out of the losing lawyer's side. The Bench-Bar proposal urged that
any sanctions under the rule should be paid into court. That proposal was not en-
tirely adopted in the new rule but long steps were taken in that direction. The
Court adopted the views of Justice O'Connor in a recent opinion that there should
be heavy stress on deterrence and not profiteering as the objective of the rule.
Hence, the Committee has provided that any sanctions "should ordinarily be paid
into court as a penalty" and that fee shifting should be limited to "unusual cir-
cumstances." This is an improvement. In addition, the new rule provides that there
shall be no sanctions if the offending pleading is withdrawn, and the objecting party
must give the other side this opportunity. A major improvement in the rule is its
improvement on the notice, hearing and determination practices recpiired before
sanctions will be allowed. Anybody sanctioned must have a specific charge, must
have a reasonable opportunity to respond, and the court must show its reasons on
the record for any order it makes. This is particularly important because the court's
order is reviewed only for abuse of discretion, so there must be a record to show
whether discretion has been abused.

I am aware of no one who will come before you criticizing the proposed new Rule
11. It is greatly desired by every segment of the bar and particularly by civil rights
groups. The existing situation is simply intolerable.The proposed new rule is ur-
gently needed and merits your blessing.

B. Rule 26

I supported Rule 26 in an earlier form before th' Rules Committee and support
it in its highly modified form now. I am aware that the procedure by which the final
form of Rule 26 came into the rules was out of the ordinary, and I do not think
it is right. However, the present form of the rule is sufficiently modest in the
changes it makes that further hearings would probably not have shed any new light;
the earlier discussions had been very thorough.

Specifically, I think my colleagues the bar who are troubled at this Rule 26 are
spooked over nothing. The plain fact is that disclosure is the contemporary wave.
Tne disclosure system adopted in my own state of Arizona is so much more radical
than this that the proposal before you seems child's play. Disclosure is being adopt-
ed by district courts under the 1990 statute and no one seems to have been hurt
by it.

Let me be very specific. Federal proposed Rule 26 imposes three types of disclo-
sure duties:

1. Initial disclosure of individuals likely to have discoverable information relevant
to disputed facts; copies of or descriptions by category of all documents in the dis-
closing party's possession, custody, or control relevant to disputed facts; damages
evidence; and insurance agreements. (26(a)(1)).

2. Expert testimony, including the identity of experts as well as required written
reports. (26(a)(2)).

3. Pretrial disclosure, including the identity of witnesses and whether they will
be presented live or by deposition and the identity of anticipated trial exhibits.
(26(a)(3)).

The proposed rule also sets forth the timing requirements for each of these disclo-
sures, the method for making each of these disclosures, and the method for claiming
attorney-client or work product protection.

All these things have to be done now, though at a slightly later stage. These rules
simply accelerate the interrogatory procedures of Rule 33 and the document disclo-
sures of Rule 34, plus the various details of Rule 26. Of course one must identify
one's witnesses and identify the trial exhibits and reveal the expert testimony and



81-258 0-94-3



60

reveal the facts of insurance. The question, therefore, is not one of substance but
purely one of timing.

The qruestions then arise as to whether somehow the earlier timing works an in-
justice. This must be balanced against the fact that lawsuits take too long and there
is too much jockeying around now about interrogatories and documents. The rule
is carefully designed so that no one has to discover what he doesn't yet know; there
are adequate devices, as there are in the existing rules, for supplementation and
there is plenty of room for protection. The country is impatient with the pace of liti-
gation and the cost of it, and it is at least reasonable to hope that this Rule 26 will
speed the pace and reduce the cost; it may by earlier cards on the table improve
the prospects of early settlement.

The question then arises as to whether this rule should be delayed until there
are furtner reports under the 1990 statute. This question can be twice answered in
the negative: first, the local experimentation permitted under the 1990 statute con-
tinues unaffected by this rule. Second, this rule may well give the local districts a
model with which to complete their tasks under the 1990 act.

This rule speeds up discovery and will take away much of the gamesmanship of