Rule 11

Chapter 4: Rule 11

Rule 11 pertains to an illustration of the contrast between a small firm trial practice and a large firm litigation practice. Jerome Facher was an experienced trial lawyer in Boston. His firm represented Beatrice Foods, which owned the Riley Tannery north of Woburn. While, William Cheeseman worked for another large Boston firm that represented W.R. Grace Co., which owned a manufacturing plant north of Woburn.

The Woburn case was sent to Facher by the Assistant general counsel of Beatrice Foods

Cheeseman filed a a Rule 11 motion against Schictmann and the firm with the intention to end the case. Under the motion, Cheeseman specialized in pre-trial strategy rather than trials, and filed a Rule 11 motion against Schlictmann and the firm in an effort to end the case immediately. The motion charged Schlictmann with filing a frivolous and unfounded lawsuit, and with other suspect ethical behavior such as soliciting clients. The judge, Walter Jay Skinner, held a hearing on the motion. Schlictmann refused to submit to cross-examination by Cheeseman on the theory that doing so would violate his obligations to his clients. The hearing was conducted by Judge Skinner based on submitted questions by Cheeseman, and the Rule 11 motion was denied.

This chapter provides an excellent illustration of the contrast between a small firm trial practice (here, personal injury) and a large firm litigation practice. I would say that Cheeseman is more typical of a large-firm litigator than Facher, whose extensive trial experience is unusual in large firms.

Rule 11 states that a lawyer should not file papers in court that are not well-grounded in fact. Cheesemans Rule 11 motion argued in essence that the plaintiffs lawsuit lacked factual support and that an adequate pre-suit investigation would have revealed that. But between the EPA report and other investigative work not mentioned in the book, it is clear in retrospect that Schlictmann and Roismann had done a fairly thorough pre-suit investigation and had a good factual basis for their claims. Judge Skinners decision to cross-examine Schlictmann was probably ill-advised and wrong, for many of the reasons argued by Schlictmann at the hearing. The adequacy of the pre-suit investigation and factual support for the suit could have been shown without the unusual step of questioning the lawyer in open court. Judge Skinner seems to have realized this as the hearing progressed.

p. 103: Gamache was shocked. Keeping your clients reasonably informed about the litigation to which theyre a party is an obligation of professional ethics. The fact that one of Schlictmanns clients was so out of the loop that he doesnt even know whom hes suing is bad practice and easily avoided.

pp. 111-18: Although the specifics of the hearing were unusual, several aspects of this hearing are quite typical of trial court proceedings. In contrast with the strict formality of appeals court hearings, the freewheeling nature of this hearing is not so unusual for trial courts. Nor is it unheard of for a lawyer to get his way by sheer persistence, as Schlictmann did.

Chapter 4 (pp. 123-46): Orphans and DogsNotes:

The discussion of the Carney case repeats many themes from Chapter 2, particularly (1) the payoff from significant investment of time and money in a plaintiffs case and (2) the risk of turning down a significant settlement offer.

pp. 135-43: A summary judgment motion is a major step in pre-trial procedure. Most pre-trial dismissals of cases occur at this stage. Its unusual for a summary judgment motion to be made and decided prior to discovery, as this one was (see Chapter 5: Discovery). On the other hand, the case had been pending for more than a year. In current federal court practice, the judges try to complete the discovery process in less than a year from the date the case begins. In the 1980s, much federal litigation went at a slower pace.

p. 139: Schlictmann meanwhile got Cheeseman to agree to yet another thirty-day extension. Agreeing to extensions requested by your opponent is a commonplace professional courtesy. The federal procedural rules state a general policy that lawsuits should be decided on their merits rather than on deadline pressures or procedural technicalities. Had Cheeseman refused the extension, Schlictmann could have requested one from the judge, who would probably have granted it and rebuked Cheeseman for refusing to agree to an extension without a good reason for doing so.

Causation remains the key legal issue in the case. The fact that the judge didnt dismiss the case on summary judgment does not make that issue go away.

Question:

What do you think Schlictmann will have to do to prove that Grace and Beatrice caused the plaintiffs injuries?