Persuading Courts to Impose Sanctions on Your Adversary
Persuading Courts to Impose
Sanctions on Your Adversary by Douglas J. Pepe
We’ve all been there.
You’re embroiled in a knock-down, drag-out fight. Your adversary crosses the line separating forceful advocacy from misconduct. Not once. Not innocently. Not trivially. Sanctions are in order. Yet, most judges don’t like them. So, how do you persuade the court to impose them? What kinds of sanctions can you ask for? Here are five tips for filing an effective sanctions motion.
Tip Number 1: Know the rules of the game before you play. An extensive body of law exists on litigation abuse and sanctions, but few of us find ourselves steeped in the issues as part of our daily practice. I suppose that is a good thing.
Sanctions law is full of traps for the unwary or the uninitiated. Knowing the rules of the game—and following them—is essential to persuading a court to sanction your adversary.
The sources of sanctions law are as myriad as the abuses they are designed to address. Each state has its own set of sanctions powers. Often, but not always, they are modeled after those in federal court. Appellate rules differ from those in the trial courts. Statutory provisions like 28 U.S.C. § 1927, which provides for attorneys’ fees directly from opposing counsel in all federal courts, operate outside the rules and apply across the full spectrum of trial and appellate courts.
Federal courts also possess broad “inherent powers” to award sanctions. Each source comes with its own set of requirements.
A detailed discussion of all of them is more appropriate for a book than an article. For our purposes, a brief description of the main bases for federal sanctions law will suffice to give a flavor. There are four.
Rule 11. When many people think of sanctions, they think of Rule 11 of the Federal Rules of Civil Procedure. It stands at the apex of sanctions law. Given the amount of litigation and
Douglas J. Pepe is a partner at Gregory P. Joseph Law Offices
Sanctions on Your Adversary by Douglas J. Pepe
We’ve all been there.
You’re embroiled in a knock-down, drag-out fight. Your adversary crosses the line separating forceful advocacy from misconduct. Not once. Not innocently. Not trivially. Sanctions are in order. Yet, most judges don’t like them. So, how do you persuade the court to impose them? What kinds of sanctions can you ask for? Here are five tips for filing an effective sanctions motion.
Tip Number 1: Know the rules of the game before you play. An extensive body of law exists on litigation abuse and sanctions, but few of us find ourselves steeped in the issues as part of our daily practice. I suppose that is a good thing.
Sanctions law is full of traps for the unwary or the uninitiated. Knowing the rules of the game—and following them—is essential to persuading a court to sanction your adversary.
The sources of sanctions law are as myriad as the abuses they are designed to address. Each state has its own set of sanctions powers. Often, but not always, they are modeled after those in federal court. Appellate rules differ from those in the trial courts. Statutory provisions like 28 U.S.C. § 1927, which provides for attorneys’ fees directly from opposing counsel in all federal courts, operate outside the rules and apply across the full spectrum of trial and appellate courts.
Federal courts also possess broad “inherent powers” to award sanctions. Each source comes with its own set of requirements.
A detailed discussion of all of them is more appropriate for a book than an article. For our purposes, a brief description of the main bases for federal sanctions law will suffice to give a flavor. There are four.
Rule 11. When many people think of sanctions, they think of Rule 11 of the Federal Rules of Civil Procedure. It stands at the apex of sanctions law. Given the amount of litigation and
Douglas J. Pepe is a partner at Gregory P. Joseph Law Offices