PLEADING

a. Where verification required: The Federal Rules requiring verification in certain circumstances include:

i. Rule 23.1, dealing with stockholders’ derivative suits;

ii. Rule 27(a), allowing the taking of certain depositions before an action has been commenced; and

iii. Rule 65(b), permitting temporary restraining orders on a verified complaint showing that the petitioner will suffer “immediate and irreparable injury, loss or damage” if the restraining order is not granted.

3. Attorney must not file frivolous pleading (Rule 11): The non-lawyer commonly thinks that “you can say anything you want in a lawsuit.” But in fact, at least in federal suits, it is the lawyer’s job to make sure that a pleading (or any other paper submitted to the court) is not frivolous, and not issued to harass or delay the adversary. Rule 11 imposes this requirement, and provides that a lawyer who fails in this duty may be fined or otherwise sanctioned.

a. Lawyer’s obligation: The pleader herself does not need to swear to the pleading in most instances. But the pleader’s lawyer must sign the pleading, and is responsible for its contents in some important ways. When the lawyer files a pleading, the lawyer thereby “certifies that to the best of the [lawyer’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—

(1) the pleading “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”;

(2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”;

(3) “the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”; and

(4) “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” See generally Rule 11(b).

b. Purpose of rule: Rule 11 applies to all papers filed with the court, whether these are complaints, answers, motions, etc. But the main real-world consequence of the rule has been to deter lawyers for plaintiffs from asserting claims that have no basis in law or fact, and to prevent them from bringing to a multi-party action peripheral defendants (the “join ’em all” strategy).

i. Important litigation area: Since Rule 11 was strengthened in 1983 in order to better deter delay and other abuses, litigation seeking or opposing Rule 11 sanctions has grown into one of the most important aspects of federal practice.