Civil affairs

"The opposing the opinions, and rectifying the mistakes of others, is what truth and charity sometimes require of us, and civility does not oppose, if it be done with due caution and care of circumstances."

John Locke (1632-1704)

Some Thoughts Concerning Education.

The Harvard Classics. 1909-14.

Motions for sanctions--A sanction for incivility?

The DuPage County Bar Association Journal recently devoted an issue to the subject of incivility. It contained presentations and discussions from The Roger K. O'Reilly Symposium on Civility and Advocacy. The participants addressed the inherent tensions in our profession that blur the line between zealous advocacy and incivility. They explored the initial difficulties in understanding both what our profession means by incivility and in identifying its causes. Panel and audience members grappled with the problem posed by certain practice rules that are inconsistent with values, which otherwise promote civility in our profession. When viewed in a vacuum, these rules can lead to the misconception by the public, as well as by lawyers, that being a zealous advocate encompasses uncivil conduct. Self-education and the education of the public about overriding values, which must govern a lawyer's use of practice rules, is a necessary step toward curing the incivility that repeatedly arises from the misuse and misunderstanding of our sometimes perplexing rules.

Illinois Supreme Court Rules 137 and 219(c) allow for attorney fees and/or monetary penalties to be awarded to moving parties when the court finds sanctionable conduct has been committed under the rules by another party or attorney. The misuse and misunderstanding of these provisions is an all-too-common springboard for uncivil conduct. From threats during depositions to litigation careening out of control, the abuse of these rules serves as a prototype for uncivil practices. Moreover, incivility becomes particularly insidious when it is perceived as sanctioned by the very rules under which we practice. There is perhaps no better example of where a lack of education on the part of clients, lawyers and judges collide to promote incivility in the practice of law.

Rule 137

Rule 137 provides:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiation, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee. 155 Ill. 2d R. 137 (emphasis added).

Rule 137 was adopted in 1989. It replaced former section 2-0611 of the Code of Civil Procedure. Unlike section 2-0611, Rule 137 allows but does not require the imposition of sanctions. It also requires that the trial judge specifically set forth the reasons and basis for any sanction in a separate, written order. 155 Ill. 2d R. 137, Committee Comments, at lxxiii.

The purpose of imposing sanctions under Rule 137 is to "prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions based upon unsupported allegations of fact or law." Senese v. Climatemp, Inc., 289 Ill. App. 3d 570, 581 (1st Dist. 1997). The purpose is not to punish litigants or their attorneys simply because they have been unsuccessful in the litigation. Burrows v. Pick, 306 Ill. App. 3d 1048, 1050 (1st Dist. 1999). Because litigation is inherently uncertain, it would be unjust to punish litigants for exercising their right to file or defend a lawsuit. The time, expense and difficulty of litigating fees poses substantial burdens for judicial administration. Toland v. Davis, 295 Ill. App. 3d 652, 658 (3rd Dist. 1998). The party seeking to impose sanctions bears the burden of proving that the opposing party made assertions of fact that were untrue and were made without reasonable cause. Burrows, 306 Ill. App. 3d at 1050-51. The decision to grant or deny sanctions rests within the sound discretion of the trial court. Toland, 295 Ill. App. 3d at 654.

The litigation in Technology Innovation Center, Inc. v. Advanced Multiuse Technologies Corp. spanned seven years, six of which "turned into a rancorous Supreme Court Rule 137 (citation omitted) sanctions proceeding that took on a life of its own." 35 Ill. App. 3d 238, 239 (1st Dist. 2000). The case is a paradigm for when the pursuit of sanctions leads to uncivil practices and an abuse of the process.

It all began with a forcible entry and detainer action, which was dismissed within one year for lack of jurisdiction. Id at 240-1. Under Rule 137, defendants then filed a petition for sanctions against plaintiff seeking $67,808.90 in attorney fees and costs. Id at 242. The trial court dismissed defendants' petitions for sanctions. Defendants appealed. Id at 243. The First District remanded for reconsideration of the motions to strike and dismiss, not intending or expecting the case to go any further. Id at 247.

Instead, the trial court allowed defendants to file a second supplemental petition for sanctions. It sought added fines of $1,842,000 for plaintiff's misconduct. The court also reopened discovery on defendants' Rule 137 petitions, after which completed, defendants sought leave to add yet another claim of misconduct and seeking additional attorney fees and costs. Id at 242. The trial court ultimately dismissed defendants' petitions for sanctions again, finding that, in balance, any wrongdoing by plaintiffs did not warrant sanctions. Defendants appealed again. Id at 243.

In affirming the trial court's dismissal of defendants' petitions for sanctions, the First District reflected on how the litigation had run amok:

Our review of the record persuades us it was the defendants' conduct that stretched this litigation beyond the boundaries of reason--in time, effort, and expense. At some point this case stopped being the simple legal dispute it should have been and became a one-sided war of attrition. Motions directed at [plaintiffs] became offensive weapons. The discovery process was abused. The judge too-patiently heard and reheard oral arguments. We understand and share the trial judge's reluctance to reward the defendants' behavior. Id at 246.

Motions for sanctions under Rule 219(c) also spawn wasted time, effort and expense. Fueled by misconceptions of the purpose and application, monetary sanctions are sought and awarded for the wrong reasons.

Rule 219(c)

Supreme Court Rule 219(c) provides that if a party unreasonably fails to comply with or violates discovery rules, "the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including among others, the following * * *." The rule then specifies a number of sanctions, including the entry of a default judgment, the striking of pleadings, the barring of testimony and contempt proceedings. "In lieu of or in addition to the [sanctions provided for in the rule], the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty." 166 Ill. 2d R. 219(c)(emphasis added).

The purpose of imposing sanctions under Rule 219(c) is to accomplish the object of discovery and not to punish recalcitrant litigants. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68 (1995); Fine Arts Distributors v. Hilton Head Corp., 89 Ill. App. 3d 881, 883 (1st Dist 1980). While the trial court may impose necessary sanctions to accomplish discovery, it may not impose sanctions that are intended primarily as punishment. Workman v. St. Therese Medical Center, 266 Ill. App. 3d 286, 293 (2d Dist. 1994).

An award of expenses as a Rule 219(c) sanction must be related to the result of the specific misconduct and may not extend to other issues in the case. Dyduch v. Crystal Green Corp., 221 Ill. App. 3d 474, 480 (2d Dist. 1991). The decision as to whom such a penalty may be payable is left to the discretion of the trial court based on the discovery violation involved and the consequences of that violation. Transamerica Ins. Group v. Lee, 164 Ill. App. 3d 945, 948 (1st Dist. 1987).

Most of us have encountered misguided clients and lawyers who envision motions for sanctions as a means to punish the opposition, as well as expecting some sort of monetary compensation. Unfortunately, just this kind of abuse of the rule is sometimes rewarded.

In Transamerica Insurance Group v. Lee, 164 Ill. App. 3d 945 (1st Dist. 1987), the trial court had granted plaintiff summary judgment. Plaintiff moved for sanctions, alleging that the defendant had falsely answered an interrogatory. Plaintiff's attorney orally represented to the court that he had spent 20 hours at a reasonable rate of $125 per hour as a result of the violation. No further evidence that the fees and hours were reasonable and necessary was requested or offered. The court entered judgment against the defendant for $5,000. Despite the fact that the amount assessed was twice that claimed by plaintiff's attorney, the trial court characterized its judgment as one for attorneys fees. Defendant appealed. Id at 947-8.

In affirming, the First District acknowledged the puzzling discrepancy posed by the amount awarded, but nevertheless based its decision on the speculation that "the judgment was assessed as a penalty for what the court perceived as a most serious and wilful violation of the discovery rules." Id at 948. Vigorously dissenting, Justice McMorrow discussed the failings and dangers of the majority's decision. The decision ignored the purpose of a Rule 219(c) sanction to accomplish discovery rather than to inflict punishment. The majority had essentially condoned "a sanction whose sole purpose is, as the majority admits, to punish defense counsel's discovery violation." Id at 951-2. Furthermore, there had been no showing that the attorney fees were reasonable and incurred as a result of the misconduct, as Rule 219(c) requires. The award itself was therefore confiscatory and "heaps upon the plaintiff a wholly unwarranted windfall." Id at 952-4.

The Fifth District agreed with Justice McMorrow and found similar abuses in monetary sanctions awarded under 219(c) in Dyduch v. Crystal Green Corp., 221 Ill. App. 3d 474, 481 (5th Dist. 1991). The plaintiff had failed to disclose the name and report of a witness. The trial court awarded defendant all costs in the litigation and one-half of its total attorney fees. There was no showing of how the costs and fees awarded related to the misconduct that had occurred. The award was vacated, and the case remanded, because the sanction had been imposed strictly as a punishment. Id at 480-1.

Nothwithstanding the non-punitive purpose of sanctions and the pitfalls of windfall awards, Rule 219(c) was amended in 1995 to include the imposition of a monetary penalty against a party or attorney for wilful misconduct. 166 Ill. 2d R. 219(c), Committee Comments, at cxiii.

While the Illinois Supreme Court Rules providing for monetary sanctions arguably serve a legitimate purpose, our profession should perhaps be giving consideration to the advisability of rules that too often result in side-show litigation, unjust awards, and unnecessary animosity. We can work to eliminate some of the incivility they engender, however, by taking certain initiatives within the current framework. James McCluskey's President's Message from the DuPage County Bar Journal on civility drew on the words of Abraham Lincoln concerning the tenets of the legal profession. "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses and a waste of time. As a peacemaker, the lawyer has the superior opportunity of being a good man. There will still be business enough. Never stir up litigation."

To heed Lincoln's wisdom within this context, we may need only to take a closer look at the rule provisions themselves. If misconduct rises to a sanctionable level, motions are not necessary for corrective action by the court. The court can act on its own initiative with wide discretion to fashion a sanction that is an appropriate remedy. Because motions for sanctions are often prompted by misguided frustrations and distorted expectations, the origin of imposing sanctions more befits the neutral position of the court. Because clients often advocate pursuing sanctions for the wrong reasons, we must educate them that using the rules simply for monetary gain, such as fee recoupment, is a perversion of their purpose that often backfires in delays and additional expense.

At the same time, when judges impose monetary sanctions as a punishment and award that penalty to the moving party, it also serves to pervert the rules. Such sanctions do not discourage litigation or deter abuse of the rules, but are likely to encourage the opposite. Although the rules provide for monetary penalties, to whom the penalty is payable is left to the discretion of the trial court. 166 Ill. 2d R. 219(c), Committee Comments, at cxiii-cxiv. Justice McMorrow's dissent in Transamerica suggests a more effective application of the rule. "[I]t would be more equitable to direct this 'windfall' to a charitable legal organization or association that, for example, provides pro bono legal representation." 164 Ill. App. 3d at 953.

By taking the initiative to find and use the most just options available under our sanctions rules, we can help to eliminate their abuse, as well as aligning them with values that promote civility in our profession.