By: Howard Mowery

Under Arkansas Rule of Civil Procedure 11 and Federal Rule of Civil Procedure 11, every pleading or written filing by a party or his attorney which constitutes a certification by the signor that to the best of his knowledge, information or belief, formed after an inquiry reasonable under the circumstances, the factual contentions therein have evidentiary support. Further, the signature certifies that the pleading, motion or other paper is not filed for an improper purpose, such as to harass, cause unnecessary delay, or needless increase in the cost of litigation. If a pleading, motion or other paper is filed in violation of this rule, the court may, upon its own motion, or the motion of a party, shall impose upon any attorney or party who violated the rule, an appropriate sanction including an order dismissing the claim or defense, an order striking the pleading or motion, an order to pay the other party the amount of reasonable expenses, including attorney’s fees, incurred due to the violation or an order to award damages attributable to the delay or misconduct.[1]

A trial court can also award punitive damages against an attorney or party who violates Rule 11 to thwart future lawsuit abuse. Williams v. Gill, 335 Ark. 163, 980 S.W.2d 248 (1998). Moreover, the rule was amended to remove the reluctance of trial courts to impose sanctions for violating the rule so that sanctions are now mandatory for a Rule 11 violation.  See, Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). The purpose of this rule is to deter unnecessary complaints and other legal documents, streamline dockets and punish offenders. “Unnecessary complaints sap the time of judges, forcing parties with substantial disputes to wait in a longer que and condemning them to receive less judicial attention when their cases are finally heard”. Szabo Food Services, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1983). Rule 11 was adopted to spare innocent parties and overburdened courts from the filing of frivolous legal filings. Willy v. Coastal Corp., 707 F.Supp. 407 (W.D. Ark. 1989). The breadth of Rule 11 is such that the courts are empowered to levy sanctions even when the court may not have subject matter jurisdiction over the matter. Willey v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076 (1991).

Rule 11 defines a new form of legal malpractice where the victims are the lawyer’s adversary, other litigant’s in the court’s que and the court itself. See, White v. General Motors Corp., 847 F.2d 412 (7th Cir. 1988). In fact, the Western District of Arkansas was so concerned about the large number of frivolous filings, it served notice on all attorneys that it will, in the future, where justified, liberally apply the sanctions available under Rule 11. The Western District of Arkansas advises that it does not mean to impose a “chilling effect” on the filing of lawsuits, but merely seeks to ensure that lawyers understand that they have a duty to “weed out” matters before filing them. See. Willey, Id. at 412. Thus, an attorney must make a reasonable inquiry into the facts and the law to ensure that the complaint, answer, motion, or other paper is in compliance with these certifications. Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005). “The day is past when our notice pleading practice…(and) liberal discovery rules invited the federal practitioner to file first and find out later whether he had a suit or not”. Hale v. Narney, 786 F.2d 688 (5th Cir. 1986). Rule 11 requires lawyers to think first and file later, on pain of personal liability. Stewart v. RCA Corp., 790 F.2d  624 (7th Cir. 1986). The duty to investigate the factual and legal basis for a client’s claim or defenses continues even after the paper has been filed so that a duty may exist to amend any offending paper upon discovery of facts or law that calls the claim or defense into question. See, Chris & Todd, Inc. v. Arkansas Department of Finance, 125 F.R.D. 491 (E.D. Ark. 1989).

The courts use an objective standard to evaluate whether an attorney or party has conducted an appropriate investigation into the facts and law before filing a paper. The question is would the attorney have discovered the mistake of fact or law upon reasonable inquiry? Cortinez v. Brighton, 320 Ark. 88, 894 S.W.2d 919 (1995). See also, Wise v. Pea Ridge School Dist., 675 F.Supp. 1524 (W.D. Ark. 1987)(An objective test is used to evaluate whether an attorney made an appropriate investigation of the facts before filing a writing). Counsel should avoid blind reliance on the representations of his client as such is not a reasonable inquiry into the factual basis for the claim. Childs v. State Farm Mutual Automobile Insurance, 29 F.3d 1018 (5th Cir. 1999).

[1] The comments to ARCP 11 reflect that the sanctions are applicable to discovery requests, discovery motions and any other paper that must be filed with the court clerk. Thus, it would also apply to affidavits filed in violation of the order.

Howard Mowery is a trial lawyer and mediator who has practiced throughout federal and state courts in Texas, Arkansas and, Oklahoma. His practice extends to representation of individuals and businesses in civil litigation.

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