RULE 11

1. RULE 11 • Terminology • “Satellite litigation” • Big theme • Deter bad behavior v. • Increase cost of litigation • More strategic use of rules

2. WHERE WE ARE • Pleadings Complaint Answer 12(b) Motions Amended Pleadings • Pre-Trial • Trial & Post-Trial • Appeal

3. PLEADINGThe Complaint Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Rule 9: Special Pldg Req’ts?

4. WHERE WE ARE • Approaches to pleading • Common law writs • specialized requirements • Code pleading • focus on facts • Check the box • access for pro se’s • Federal Rules • Rule 8 • lenient approach to pleading • Rule 11 • additional requirements

5. WHERE WE ARE • Today • Stricter Pleading Req’ts? • Rule 9 • Court rulings • 12(b)(6) motions to dismiss

6. THE ADVISORY COMMITTEE • What it is • Appointed by “Judicial conference” • Who is on it • Judges • Academics • Lawyers • How it works • “Transparency”

7. THE ADVISORY COMMITTEEAmend Rule 9? • The Proposals • Repeal Rule 9(b) req’t for fraud • “averments of fraud . . . shall be stated with particularity” • Amend Rule 9 • “averments in civil rights actions . . . shall be stated with particularity”

8. THE ADVISORY COMMITTEEAmend Rule 9? • The Proposals • Repeal Rule 9(b) req’t for fraud • “averments of fraud . . . shall be stated with particularity” • Amend Rule 9 • “averments in civil rights actions . . . shall be stated with particularity”

9. INSTITUTIONAL COMPETENCE • Heightened pleading requirements • Who should decide?

10. TAKEAWAYS • Procedure isn’t neutral! • Federal Rules • Liberal Pleading Requirement • Limited by • Rule 11 • Rule 9 • Pressure from courts

11. TAKEAWAYS • Significance of pleading reqt’s • Access to courts • Strict pleading = barrier to decision on merits • Cost of judicial process • Liberal pleading  Increase costs? • Impact on negotiations • “Bargaining in the Shadow of the Law”