The Advisory Committee on the Civil Rules amended Federal Rule of Civil Procedure (Rule 11) in August 1983 because of increasing concern about attorney abuses in civil lawsuits and about the so-called litigation explosion. The revision commands courts to sanction lawyers and parties who do not undertake reasonable prefiling inquiries. Certain aspects of the new version's implementation provoked substantial controversy which continued virtually undiminished from the amendment's August 1983 effective date at least until the fifth anniversary of its adoption. Perhaps most controversial was the question whether courts' application inhibited the pursuit of legitimate litigation, especially cases involving civil rights claims. Critics of Rule 11 contended that excessive, expensive and unnecessary satellite litigation engendered by the new provision, the amendment's inconsistent judicial enforcement, and its vigorous application against civil rights plaintiffs and lawyers disadvantaged and had a chilling effect on these parties and practitioners. The possibility that the revised version dampened the enthusiasm of civil rights plaintiffs and lawyers is an extremely controversial, but very important, issue because they seek to vindicate significant social values affecting many people, such as freedom from racial discrimination.
A number of developments relating principally to apparent improvements in the amendment's judicial enforcement which have occurred since approximately mid-1988 indicate that the rule may be causing those who bring civil rights cases less difficulty than was previously thought. The recent developments warrant close scrutiny, because they could leave the impression that Rule 11 no longer is problematic for civil rights plaintiffs and attorneys, and that impression may be inaccurate.
The first section of this paper analyzes how the amendment adversely affected civil rights plaintiffs and lawyers between August 1983 and mid-1988. The second part reviews numerous subsequent developments that appear to constitute improvements for the litigants and attorneys. The assessment shows that some developments should enhance application but that others may not or are currently unclear and that additional problems remain. In short, it is impossible to discern whether the developments ultimately will suffice for civil rights plaintiffs and lawyers. The last section, therefore, offers suggestions for ascertaining more conclusively what effects the rule is having in civil rights cases and for improving future judicial application.
Carl Tobias, Reassessing Rule 11 and Civil Rights Cases, 33 Howard L.J. 161 (1990)