Lawsuit Abuse Reduction Act of 2015
Floor Speech
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Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
I was duly impressed with the statement and position of my chairman, but I find it hard to believe it is on this bill because this bill is not a bill that should be passed.
This bill is an affront to the judges of this country, to the Judicial Conference, and to the American Bar Association.
The American Bar Association, a conservative organization, has come out against it. The Judicial Conference, made up of predominantly appellate judges, headed by Chief Justice Roberts--mostly of Republican-appointed judges--came out against it because it is not necessary.
It will clog the courts with unnecessary litigation, cost money, and make it more difficult to get your cases disposed of. It is just unnecessary.
Indeed, it would amend rule 11, but in such a way that it could have a serious deleterious effect on civil rights claims as well as to increase the volume and cost of litigation. If this House were a court and not a legislative body, rule 11 sanctions could apply here.
These concerns are not hypothetical. They are based on actual experience. From 1983 to 1993, there was a version of rule 11 that this law would reinstate.
So all you have to do and all any legislative body ought to do is go back and look at what happened in history. These rules were in effect from 1983 to 1993, taking a judge's discretion away.
Judges can order sanctions. They can make sure that those cases that were brought up about reading a phone book and having a wreck are out, gone. They can do that.
This takes their discretion away, and they have got to give costs and compensation to the other side's lawyers. And then there are hearings and all of that stuff.
Presently, the court has discretion, and there is a 21-day safe harbor provision where an attorney can withdraw or correct any alleged submissions that were wrong.
This requires the courts to award reasonable attorneys' fees and other costs. It does not leave it to the discretion of the court.
Currently, such awards are entirely at the court's discretion, and they are limited to deterrence purposes, not for the compensation of lawyers.
Simply put, H.R. 758 will have a deleterious impact on the administration of justice for these reasons:
First, civil rights. Think about Brown v. Board of Education. When it came before the court, it was a novel case, and a judge in certain places, especially in the South in 1954, might have said: Sorry, lawyer. You are out of here.
The judge would have had no option under this but to grant costs against the attorney who brought the case, Mr. Marshall, and we might not have ever had Brown v. Board of Education.
Civil rights cases comprise 11 percent of Federal
cases filed, but more than 22 percent of the cases in which sanctions have been imposed for civil rights cases. H.R. 758 would restore this problem. Just imagine that result. There are other cases that are similar.
The legal arguments in landmark cases where certain novel arguments are made that are not based on then-existing law would be affected. Litigation would be prolonged and may be too expensive to continue.
Secondly, H.R. 758 will also substantially increase the amount, cost, and intensity of litigation. Experts in civil procedure are virtually unanimous on this point.
By making sanctions mandatory and having no safe harbor, the 1983 rule spawned a ``cottage industry'' of litigation. There were financial incentives to file rule 11s.
Prior to the 1983 rule taking effect--this really gets me--there had been only 19 rule 11 proceedings over the course of 45 years, but in the decade that this rule was in effect, which this bill wants to reinstate, there were 7,000 proceedings in 10 years--11 in 45 years and 7,000 in 10 years. So we are talking about a lot of litigation and clogging up of the courts.
One-third of all Federal lawsuits were burdened by these satellite litigations that came about because of this rule. It strips the judiciary of discretion, and it utterly ignores the thorough process by which the Federal court rules are usually amended.
H.R. 758 overrides this judicial independence by removing the discretion to impose sanctions and to determine which sanctions might be appropriate. It circumvents the painstakingly thorough Rules Enabling Act process that Congress itself established 80 years ago.
The 1993 amendments to rule 11 have been a tremendous success. That is what this would throw out. As documented by the Judicial Conference of the United States, these amendments resulted in a ``marked decline in rule 11 satellite litigation without any noticeable increase in frivolous filings.''
H.R. 758, however, would undo this. That is why the American Bar Association and the Judicial Conference oppose it.
It is also opposed by the Alliance for Justice, the Center for Justice & Democracy, the Consumer Federation of America, the Consumers Union, and Public Citizen.
This is a deeply flawed bill that addresses a nonexistent problem. We have this bill, and we have a bill on abortion. It seems like today's actions in Congress are Shakespearean, first, ``kill the lawyers,'' but, this time, it is ``kill the judges.'' The other one is ``kill the doctors.''
Congress knows the answer. We can tell the judges what they need to do because they are not doing it, and we will tell the doctors what they need to do, and we will tell the women what they need to do. Unfortunately, that is what we have come down to, a bad bill.
I reserve the balance of my time.
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Mr. COHEN. Mr. Speaker, I have great respect for Mr. Smith, as I do for Mr. Goodlatte, but I would submit that the rule of construction, nothing in this act or an amendment made by this act, shall be construed to bar or impede the assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws or under the Constitution of the United States.
That is the same thing as the committee having--if they would have accepted the amendment that we offered to specifically exempt civil rights laws. That was not accepted.
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Mr. COHEN. Mr. Speaker, at the same time, I would submit the rule of construction is not the same thing as if the committee would have accepted the amendment offered that said specifically civil rights laws would not be affected by this because you could still offer a rule 11 under this. It just says nothing in this action will be construed to borrow or impede the assertion.
It doesn't borrow or impede the assertion of a new claim, but it doesn't say the court cannot find a rule 11 violation and then the mandatory imposition of costs would take place. It doesn't do what you are submitting, I would suggest.
The bottom line is the court felt that this wasn't necessary. The court said, in all those cases he talked about that seem so absurd--I don't understand--and particularly as lawyer--why a lawyer would waste his time doing it because there is no chance of success and no chance of remuneration in cases like that.
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Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
First, I just want to go back to the Judicial Conference of the United States and their committee on rules of practice and procedure, which came out against this. They were just against it totally. In a letter signed by Judge Jeffrey Sutton and Judge David Campbell, they said it is going to cost money, going to impede justice, and is not necessary.
Now, we have heard this is common sense and all these frivolous cases and how absurd it is and how wrong it is and how terrible it is. Well, the two judges that wrote this letter to Mr. Goodlatte and said that this was unnecessary, that we should just keep the rule we have got, that the rule that we are adopting was an error in 1983 to 1993, it cost a lot of money in frivolous litigation, satellite lawsuits, explosion of satellite litigation, and it just didn't work.
Judge Sutton was appointed to the bench by President Bush after clerking for Justices Scalia and Powell. I would assume that if you were appointed by President Bush, approved by the United States Senate, and you clerked for Justices Scalia and Powell, you are not some kind of a big supporter of frivolous lawsuits in the plaintiffs' bar.
The other gentleman is Judge Campbell from Arizona, also appointed by President Bush. They were pretty adamant that this was a bad idea. They took some surveys, and 80-some-odd percent of folks said it was a bad idea. The bar association said it was a bad idea. The bar association had a group of 200 lawyers, litigants, judges, and academics who participated in the 2010 conference at Duke University Law School convened by the advisory committee to search for ways to address the problem. Not one of the 200 people proposed a return to the 1983 version. So 200 lawyers, litigants, judges, and academics met, and none of them suggested this type of bill.
The Judicial Conference, headed up by two people appointed by President Bush, conservative judges, said this is a very bad idea. The bar association says it is a terrible idea. Yet we are to come here and think that Congress has got the best idea, better than all these specialists. That is one of the things that is wrong with this Congress. People realize that we are not respecting logic, expertise, and history.
In their letter, the judges said that this was a return to previous attempts to amend this rule, that it would eliminate this provision adopted in 1993, and their concerns that they expressed here mirrored the views expressed by the Judicial Conference in 2004 when the Republicans, I believe, had both Houses, the House and Senate, but they certainly had the House.
In 2005, this bill came up, and they came out against it. The Republicans had the House and maybe the Senate, I don't know. The bill came up again in 2011 and 2013. So this bill has been here in 2004, 2005, 2011, and 2013, and the Judicial Conference, the judges, the lawyers, and the experts almost two to one have said it is a bad idea. I know it is throwback Thursday, but that is no reason to bring this bill forward.
I find it hard to be against my good friends, Mr. Smith and Mr. Goodlatte. They are fine gentlemen. Mr. Rohrabacher was here. He is my buddy. But it is a bad bill.
I reserve the balance of my time.
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Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
I respect Mr. Smith and understand what he is saying about judges wanting to control their own courtrooms and control the system, but they have the expertise.
The bar association is not the judges. The bar association is against this, too. So you have got the bar association and the Judicial Conference, both of which are conservative organizations, against it.
In the study, yes, some of those folks might not have been there in 1983 to 1993, but they still knew what the rule was and they were able to study and they were able to understand things.
They weren't there when cases were filed. They didn't know the facts of the case. They learned. They have got minds that are capable of absorbing information, analyzing it, synthesizing it, and coming to decisions.
You didn't have to be alive when slavery was around to know slavery was bad. You didn't have to be on the bench from 1983 to 1993 to know that rule 11 was working and that this bill which brings back that old rule would be a failure.
So I think there is deference you should give to the bar association and to the Judicial Conference, both of which have come out against this.
There are motions for summary judgment. They talk as if there is no way to get rid of a frivolous lawsuit. If you bring a frivolous lawsuit, you are going to get a motion for summary judgment. A court can order that. It can find a motion to dismiss. You don't even have to go into discovery.
The courts are the ones that suffer the most. You said that, sure, sometimes the defendants do from defending these cases, but the courts have to put up with it.
The courts don't want frivolous litigation at all. They probably are one of the first groups that don't want frivolous litigation.
I know some people that serve in this Congress who have been judges. They are outstanding men. They understand how important judges are and that their opinions should be revered and respected.
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Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
I would just say that sometimes I see Mr. Rohrabacher and I think about the fact that we have traveled some together. One of the things I have learned on those travels is the thing people in foreign countries appreciate most about the United States of America is our justice system, the fact that you have got a system where you go in and get a case heard. That is one of the things that is best about our country.
What this is about is taking power from judges and giving financial incentives. The defendants have got the heavy pockets, and it will end up squeezing plaintiffs from bringing actions. If they are so frivolous, the judges will dismiss them on summary judgments or motions to dismiss.
The judges can still have sanctions and damages, but just not have all power taken from them. And there are other rules where they can have sanctions if you are just messing with discovery and violating the rules.
I just think this is going to help close our courts, and that is not the right way to go, particularly on Constitution Day.
I yield back the balance of my time.
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