RULE 11 Terminology Big theme “Satellite litigation”

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Presentation transcript:

RULE 11 Terminology Big theme “Satellite litigation” Deter bad behavior v. Increase cost of litigation More strategic use of rules

WHERE WE ARE Pleadings Pre-Trial Trial & Post-Trial Appeal Complaint Answer 12(b) Motions Amended Pleadings Pre-Trial Trial & Post-Trial Appeal

PLEADING The Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Rule 9: Special Pldg Req’ts?

WHERE WE ARE Approaches to pleading Federal Rules Common law writs specialized requirements Code pleading focus on facts Check the box access for pro se’s Federal Rules Rule 8 lenient approach to pleading Rule 11 additional requirements

WHERE WE ARE Today Stricter Pleading Req’ts? Rule 9 Court rulings 12(b)(6) motions to dismiss

THE ADVISORY COMMITTEE What it is Appointed by “Judicial conference” Who is on it Judges Academics Lawyers How it works “Transparency”

THE ADVISORY COMMITTEE Amend Rule 9? The Proposals Repeal Rule 9(b) req’t for fraud “averments of fraud . . . shall be stated with particularity” Amend Rule 9 “averments in civil rights actions . . . shall be stated with particularity”

THE ADVISORY COMMITTEE Amend Rule 9? The Proposals Repeal Rule 9(b) req’t for fraud “averments of fraud . . . shall be stated with particularity” Amend Rule 9 “averments in civil rights actions . . . shall be stated with particularity”

INSTITUTIONAL COMPETENCE Heightened pleading requirements Who should decide?

TAKEAWAYS Procedure isn’t neutral! Federal Rules Liberal Pleading Requirement Limited by Rule 11 Rule 9 Pressure from courts

TAKEAWAYS Significance of pleading reqt’s Access to courts Strict pleading = barrier to decision on merits Cost of judicial process Liberal pleading  Increase costs? Impact on negotiations “Bargaining in the Shadow of the Law”