Comments on: Inadequate sanctions

By: Emmett Hogan

Emmett Hogan — Thu, 08 Mar 2007 05:13:24 +0000

However, I don’t think that it is outside the realm of reason to assume that $8000 would not affect him adversely because in all likelihood he makes much, much more than the amount at which $8000 becomes a burden. Do you agree?

No, because I doubt his practice is thriving… not if he’s making these kinds of mistakes, anyway. I highly doubt he’s making anything like $800,000. And besides, who likes to pay $8000 for this kind of thing? You can make a lot of money and still be incentivized to exercise a little more professional care in order to avoid an $8000 penalty.

By: David Nieporent

David Nieporent — Wed, 07 Mar 2007 20:59:43 +0000

Scott: in those discussions, you never explained why it was more “realistic” to ban contingency fees than to change the standards by which lawsuits are evaluated. I have not changed my position.

Emmett: I believe the theory is that if we increase sanctions, we’ll disincentivize sanctionable conduct. (Note that a frivolous motion for sanctions would also be sanctionable.)

In any case, I have argued in other fora for “loser pays,” which would make the fault-based system of sanctions less important.

By: Deoxy

Deoxy — Wed, 07 Mar 2007 20:33:40 +0000

“Yes, but there’s a good reason why Rule 11 wasn’t written that way in the first place; if lawyers could push for Rule 11 sanctions as a way of recouping litigation expenses, they’ll push for sanctions more often.”

And this is bad… why?

By: Scott Replogle

Scott Replogle — Wed, 07 Mar 2007 20:08:35 +0000

David: You asked for comments…
As you and I know from arguments in a different forum your answer to the problem of tort litigation abuse is getting judges to police the plaintiff attorneys and throw out frivolous lawsuits. I argued that this was unrealistic and ineffective and that the answer is to take the financial incentive out of if for plaintiff attorneys who have the power to bring the suits. Banning the contingency fee is the simplest way to do this.
Now you seem to be agreeing with me that judges do not do an effective job of using their power to screen out frivolous suits and sanctioning those who abuse the system. The case presented here seems to be an exception for an extreme case and not a particularly effective sanction against the abusing plaintiff attorney compared to what the defendants of such lawsuits deal with. Have you changed your position on this for Overlawyered.com?

By: Pat W

Pat W — Wed, 07 Mar 2007 18:45:26 +0000

Emmitt, why do you think $8000 is a deterrant to a plaintiff’s attorney? What if he made $800,000 last year? Would $8000 still be an effective deterrent?

$8000 is ONLY a deterrent if it adversely affects his financial situation; why would it be a deterrant otherwise? Therefore, we have to ask ourselves: Did this sanction adversely affect his financial situation? The answer is “We don’t know.”

By: Emmett Hogan

Emmett Hogan — Wed, 07 Mar 2007 17:29:18 +0000

Yes, but there’s a good reason why Rule 11 wasn’t written that way in the first place; if lawyers could push for Rule 11 sanctions as a way of recouping litigation expenses, they’ll push for sanctions more often. I think the cure may be worse than the disease here.

By: David Nieporent

David Nieporent — Wed, 07 Mar 2007 06:41:22 +0000

But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well.

Emmett: I understand that the court said this. And to the extent that this is an accurate assessment of Rule 11 — despite the Pavelic case cited by the court, I see no reason why sanctions can’t be used to accomplish both in a case such as this — I am arguing that it is a flaw in the current system.

By: Joe Bingham

Joe Bingham — Wed, 07 Mar 2007 04:00:39 +0000

What if we empowered juries to enact sanctions on bad plaintiffs?

(Or even perhaps prosecutors in criminal cases…)

By: Emmett Hogan

Emmett Hogan — Wed, 07 Mar 2007 03:35:22 +0000

But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well. To my knowledge, this is the first time this sanction has been imposed on him; it may have taken four “offenses,” but only one Rule 11 motion that I know of. I doubt his practice is thriving – I suspect he’ll feel the stick of that fine.

I see your point about reluctance to restrict access to courts, and I share it. But legislatures are free to restrict access prescriptively, and if they think certain claims should not be heard, they should say so forthrightly in statute. I think that’s a better way to deal with such problems than tinkering with the Rule 11 regime, which may have many untoward consequences.

By: David Nieporent

David Nieporent — Wed, 07 Mar 2007 00:11:32 +0000

Emmett, he was sanctioned, yes. On what was at least his fourth “offense.” In an amount inadequate to make even these defendants whole (let alone the three prior sets of defendants). Assuming, as Judge Crotty does, that this amount is sufficient to deter Aretakis from filing future suits of a similar nature, that doesn’t help all those he already sued.

Note that I am not criticizing the judge in this case so much as I am the legal regime under which he’s operating, which, as David W explains, is extremely loath to restrict the use of the courts, just in case someone comes up with a brilliant idea down the road.

To the other people who commented, it isn’t so much that lawyers are corruptly protecting their professional prospects — in particular, federal judges are unlikely to be practicing law down the road — as that for the last few decades, the courts have been seen by many as instruments of “social justice” rather than plain old justice. And they’re deathly afraid of making Type II errors (rejecting legitimate cases), so they err on the side of Type I (allowing illegitimate ones).