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Lawsuit Abuse Reduction Act – Congress’ Effort to Kill Common Sense

— April 17, 2015

Meet the Lawsuit Abuse Reduction Act – Congress’ effort to kill common sense. Congress seemingly thinks it has nothing better to do than interfere with the court system. It’s currently debating LARA, a bill that directly bypasses a system that Congress itself had a hand in creating. Specifically, LARA flies in the face of The Rules Enabling Act that mandates that the U.S. Supreme Court sets the general rules of practice and procedure in the federal courts.

The original intent of the Rules Enabling Act was to “assure that amendment of the FederalRules occurs only after a comprehensive and balanced review is undertaken by thejudiciary.” LARA, on the other hand “proposes to amend the Federal Rules over the objections of the judiciary onan ad hoc basis that relies on anecdotes rather than empirically based evidence and failsto examine how the proposed changes will affect the administration of justice.”

If passed, LARA would grab Rule 11 of the Federal Rules of Civil Procedure by the collar and shake it until all the common sense fell out. Rule 11 gives the judiciary the power to sanction lawyers for filing frivolous “claims, defenses, and other legal contentions.” Currently, judges make these decisions on a case-by-case basis, determining whether to impose sanctions and the nature of the sanctions.

LARA strips the judiciary of its discretion (and that pesky common sense) by forcing judges to impose sanctions without considering the facts and circumstances of the case. It also determines the types of sanctions to be imposed. Beyond that, it does away with the common sense (that phase again!) 21-day “safe harbor” provision of Rule 11. The “safe harbor” gives lawyers time to correct mistakes in pleadings, claims or contention without worrying about sanctions.

Surely, this makes the judiciary’s job easier, right? Who wants judges who actually look at facts and circumstances? Interestingly, the Judicial Conference of the United States did 32 years ago. The Conference has the responsibility of making policy for U.S. Court administration. It experimented with a rule awfully similar to LARA in 1983. The “experiment” lasted until 1993 when the same body rescinded it with modifications.

University of Houston Law Center Professor Lonny Hoffman testified in 2011 that, “Indeed, there is a remarkable degree of agreement among judges, lawyers, legal scholars and litigants across the political spectrum that the1983 amendment of Rule 11 was one of the most ill-advised procedural experiments ever tried.”

As if that wasn’t clear enough, the President of the Center for Constitutional Litigation, Robert S. Peck, testified in 2015 that,“[t]he judiciary and the legal profession overwhelmingly support the amendments that went into effect in 1993 that [LARA] seeks to undo.”

That’s pretty much the overwhelming opinion of everyone but Congress. Well, everyone with common sense.

The 1983 amendments had a chilling effect on civil rights and employment discrimination cases, even those with merit. An overwhelming majority of sanctions imposed under the 1983 amendments were against litigants in these types of cases. Many lawyers simply refused to take such cases for fear of sanctions. Under LARA, we should expect to see the same chilling effect.

Congress may think it’s saving an overburdened legal system some time by removing common sense, but history shows that’s not actually the case. The 1983 amendments created a monster called “satellite litigation,” otherwise known as suits within suits as lawyers fought over alleged noncompliance almost as much as they did over the actual cases on the docket. The 1993 amendment was the magic wand that made the monster go away. “Satellite litigation” virtually vanished.

So Congress is just setting the judiciary up for another landslide of cases all in the name of eliminating “frivolous” claims.

Doctor, the patient’s disease is cured!

 Yes, but the patient didn’t survive the treatment.

On top of this assault on common sense, Congress is attempting another end run around the Rules Enabling Act. The process the Act requires for such rule amendments includes hearings and a SCOTUS review, as well as a review by Congress. Under LARA, the whole process is ditched and what is essentially the 1983 set of amendments to Rule 11 are back in play again.

It seems to me that Congress should follow its own rules (the Rules Enabling Act, in this situation) and allow the courts to manage themselves. If Congress did that, maybe it would have time to resolve other issues, such as healthcare, social security, and oh, that pesky budget thing. Just a thought.


Fact Sheet: Facts About “LARA”- An Anti-Civil Justice Bill That Defies Common Sense



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