Revisiting Motions to Sanction Faithless Litigants and / or their Faithless Attorneys

Justice Mitchell Kaplan, JAMS Mediator and Arbitrator

  by Hon. Mitchell Kaplan (Ret.)

   Voice of the Judiciary

I was asked to write a “View from the Bench” concerning my experiences and impressions in ruling on motions brought under Mass. R. Civ. P. 11(a) (Rule 11) and G. L. c. 231, § 6F (§ 6F) to sanction lawyers and/or parties for asserting frivolous claims or defenses. As I have now been retired from the Superior Court bench for a year and a half, this is a view from the bench as seen through my rear-view mirror. In reviewing my rulings on the motions for sanctions that came before me, it became clear that I often found them to be an aggressive litigation tactic rather than a well-supported request for this extraordinary relief, and rarely granted them.

I began by searching my data base of opinions that I authored from 2013 to 2020. In general, my criteria for saving an opinion were that the memorandum was at least a few pages in length and applied some law to facts. My search generated 17 opinions in which I ruled on motions brought under Rule 11 or § 6F: 15 denied sanctions and two awarded them. I am certain that I decided many more Rule 11 and § 6F motions with marginal orders or very brief written statements. Since I am quite certain that I never allowed a Rule 11 or § 6F motion without a substantive opinion, these are the only two sanction motions that I allowed. More about them in a moment.

One genre of Rule 11 motions which I nearly always denied without an opinion were the Rule 11 motions that were appended to a substantive motion or opposition. Examples are an opposition to a motion for summary judgment that both opposes the motion and requests Rule 11 sanctions for having served it, or, conversely, a motion to dismiss a complaint that joins with it a motion under Rule 11 to sanction the attorney who filed the complaint. I suspect that in most of these cases the Rule 11 pleading was really the moving lawyer’s attempt to signal me that the opposition’s position was so manifestly without any merit that I should simply reject it out of hand, rather than a genuine request for sanctions. Personally, I never received that signal in the intended manner. Rather, I considered these motions to be overly aggressive litigation tactics of no value to me. A Rule 11 motion constitutes an allegation that an attorney has willfully acted in bad faith in pursuing a course of action. It ought not be filed until the court has ruled on the underlying claim or motion; it should acknowledge the seriousness of the allegation; and it should be well supported in the moving papers.

I suspect that I am not the only judge who received a motion for Rule 11 sanctions filed in response to a Rule 11 motion; in other words, a demand for sanctions for having been served with a demand for sanctions. I found this an especially unimpressive round of pleadings by both parties.

Nearly all my written opinions on sanctions addressed § 6F. Perhaps this is because § 6F motions can be filed only after an order or a judgment has entered. Further, since § 6F expressly requires the court to hold a hearing and issue a “separate and distinct finding” that the offending claim or defense was “wholly insubstantial, frivolous and not advanced in good faith,” the moving party tends to more thoroughly support and brief its position. Although, as noted, I allowed only two of these motions for sanctions, a number of them required serious consideration. I believe that the bar that the moving party must clear to recover an award under § 6F is a very high one, and appropriately so. The movant must show both that all or substantially all of the claims or defenses asserted were frivolous and that they were not advanced in good faith—in other words that the party acted with an actual intention to harass or increase the costs of the litigation or some other similar bad motive.

In retrospect, I was always reluctant to impose Rule 11 or § 6F sanctions. I considered them far more serious than the more common discovery sanctions awarded under Mass. R. Civ. P. 37. Indeed, the SJC has suggested that conduct that violates Rule 11 is likely also a breach of the Rules of Professional Conduct. As I read my old opinions, I came across several decisions in which I denied the motion, but commented that it presented a close question; I guess that I felt some manner of admonition to the lawyer was warranted. In one case, I found the facts on which a claim was premised “far fetched” but not “impossible” and therefore not frivolous. In another, I found the legal argument which had expressly been rejected by another Superior Court judge highly unlikely to succeed but not yet decided by an appellate court, although I also suggested that not every pleading literally permitted by the rules is necessary to a fair and efficient resolution of disputed issues. In at least a few opinions, my decision to deny sanctions was clearly colored by the conduct of the moving party. When both parties had been overly aggressive, uncooperative, and contentious throughout the litigation, I was not disposed to order sanctions against either.

An issue that arose with some frequency was considerable delay in filing a sanctions motion. In two cases I was asked to award § 6F sanctions many months after judgments entered following jury waived trials—tried by another judge. In another, a sanctions motion was filed more than a year after I entered summary judgment on nearly all of plaintiff’s many claims. As noted above, § 6F expressly requires the court to make “a separate and distinct finding” that substantially all claims or defenses were frivolous and proffered in bad faith. In Powell v. Stevens, the Appeals Court explained that a §6F motion should be filed immediately after the relevant verdict, ruling, or order because “[a]t that moment, the total circumstance of the case are full and fresh in the mind of the judge.” I relied on Powell in several opinions. Frankly, considering how many cases a judge touches in a busy civil session each week, I thought it unfair, even cruel, to ask a judge to revisit a complex decision months after it issued. In affirming my last decision denying sanctions, the Appeals Court extended the Powell timeliness requirement to Rule 11 motions as well. von Schönau-Riedweg v. Continuu Energy Technologies, LLC.

The two cases in which I awarded sanctions involved egregious conduct. In one, I allowed a motion to dismiss a complaint with leave to amend to plead additional facts, but cautioned the plaintiff’s attorney that he should take care to be certain that he had a good faith basis to add the allegations. He amended, but clearly ignored the good faith basis part of my ruling. In the other case, the sanctions motion followed a trial that included a malicious prosecution claim in which a jury expressly found that the defendant had filed his complaint without a good faith basis for the facts alleged—a finding with which I fully concurred.

Perhaps, there were instances in which I might have resolved a close question in favor of an award of sanctions, but I don’t think any judge enjoys sanctioning an attorney. Certainly, sanctions should be reserved for truly egregious cases where the claims or defenses are “wholly insubstantial” and the lawyer or client has purposely acted in a malicious manner.

Mitchell Kaplan retired from the Superior Court in 2020. Prior to serving on the Superior Court, he was a partner at Choate, Hall & Stewart.  He is presently working with JAMS as a mediator and arbitrator.

The Top Ten Questions to Ask your Juvenile Client about School

by Bryna G. Williams, with content and editorial assistance from Marlies Spanjaard

Practice Tips

Williams_BrynaRepresenting juveniles in court cases, whether in Child Requiring Assistance (“CRA”), Care and Protection or Delinquency, is important and challenging work.  The quality of representation for a young client can mean the difference between a single interaction with the court system and a lifetime of court involvement.  As in all areas of practice, broad experience in the field, effective mentoring, and specialized knowledge are essential for effective representation.

Perhaps the most critical area of specialized knowledge required of attorneys working with juveniles is in the area of education.  Children and youth spend (or should be spending) a majority of their waking hours in a school setting.  As such, it is critical for attorneys to develop best practices for learning more about their clients’ educational situation.  Information regarding school will provide invaluable insight into the client, offer context for specific situations, assist in developing a theory for a court case and, in some instances, can lead to opportunities for school-based advocacy that can strengthen an underlying case.  Certainly, probation officers for delinquency and CRA clients and case workers from the Department of Children and Families will be actively seeking information from and about school regarding their clients.  Attorneys representing juveniles must avoid any situation where other players know more about their client’s education than they know.

Of course, requesting documents through the school can be a relatively simple way to gather information and is a critical step to take at the beginning of the representation.  Still, the client interview is the most effective way to learn more about a client’s school experience.  The following outline of questions and sub-questions is recommended for attorneys to adapt into their client interviewing protocol.  Ten main questions fall into two broad categories of school-based information and community-based information, all of which shed light on a student and his or her experience in school.  Follow-up inquiries under each main question allow an interviewer to deepen the investigation and expand on each issue.

The obvious place to start a conversation about school is to ask “Where do you currently attend school?”  and then follow up by asking “How long have you attended this school?”.  This should be the start of creating a timeline of schools attended since entry into the public school system (which can be as early as age 3), learning whether the student has experienced more than the typical number of school transitions and documenting the reasons for such transitions (geographical move, discipline, special education, etc.).  If the student has attended many different schools, ask how the current one compares to the others.  What does he or she like or dislike about this school when compared to others?  Finally, asking with which adults the client has good relationships or whom he/she trusts can give you an idea of the type of environment the student experiences in school.  Additionally, this person can be a potential source of more information for your investigation and representation.

Critical to your assessment of a client’s education is to know the answer to “How are you doing in your classes?” Since students, especially teenagers, tend to answer briefly and obliquely, follow up questions are vital.  Directly and succinctly ask clients what their grades were on their last report card and whether they have repeated any grades in the past.  Follow up the reports of any poor grades (Ds or Fs) by asking clients why they are struggling in certain classes and whether they get along with their teachers in those classes or whether they struggle with any school personnel.

Attendance in school has a huge impact on a student’s success.  Supplement the question “How is your attendance?” with probing questions asking: how many days he or she thinks she has missed in the last month, how many days a week the student does not make it to school, and if he or she is ever late to school or certain classes and the reasons for each.  Take note of circumstances involving transportation problems or safety concerns.  Reconcile student reports of attendance with the official school-based and class-based attendance records.

A disproportionate number of court-involved youth receive special education services, so attorneys are advised to ask “Do you have an Individualized Education Plan or IEP?”  Because involvement with special education can be stigmatizing for students, follow up with less pointed questions about class size (small class size can indicate special services) and any instances when the student is pulled out of the main classroom setting.  Request special education documents (IEP, evaluations, and progress reports) for any student who is currently in special education or reports receiving services in the past.  The IEPs themselves should contain information about specific placement and services, status of review meetings (which are required to occur annually) and progress reports (which should be issued as frequently as reports cards).  Additionally, if the student is frequently excluded from school under the auspices of discipline, ask whether the student or the student’s parents have ever attended a manifestation determination meeting, which can indicate a pattern of exclusion as well as trigger the need for educational services such as tutoring or functional behavior assessments.

The disciplinary climate in school is much different than even ten years ago.  Discipline practices are often inflexible, impersonal and, too often, punitive.  Incidents in school can lead to school exclusion and court involvement (delinquency or CRA).  Ask your client “Have you ever been suspended or expelled from school?” Do not limit this question to incidents in the last year as a history of disciplinary exclusions can be related to school failure and indicate unmet educational needs.  Determine whether a specific pattern of behavior has led to repeated exclusions (always during a specific class or during transition).  Track the number of days that your client has been out of school during the present school year and reconcile that with the official attendance records.  Include days when your client was sent home for more than half of the school day as that should count as a day of suspension.  Of note, most districts will count suspension days as being constructively present.  If the client has already been excluded, it is important to probe further into the procedure or lack thereof that occurred prior to the exclusion.  Any exclusion longer than ten days should be preceded by a hearing with the principal of the school or school committee, and a student should be afforded the right of an appeal to the district superintendent following such a decision. Finally, determine whether your client’s district provides alternative placement, tutoring, or the opportunity to keep up with schoolwork during the expulsion and whether you client has been afforded such opportunity.

Court cases, whether they are directly related to school or not, may have an impact (potentially severe) on a student’s education.  If a client has pending delinquency charges ask, “Does anyone at the school know about your case?”  Determine whether the underlying incident leading to the charges occurred in school.  If it did, it can or may have already triggered a suspension or expulsion.  Felony charges, even if they did not originate in school or were not school-related can still lead to indefinite suspension or even expulsion. See MGL c. 70 § 37 H ½. Discern whether the alleged crime involves a victim, witness,  or co-defendant attending the same school as your client.  Take note of whether your client has any other matters pending in juvenile court.  Due to the court structure in the Commonwealth juveniles commonly have different attorneys for different matters pending in court.   Take note of the different types of cases, whether they are school based, the attorney representing your client on each matter, and any assigned probation officer.

Finally, consider this trio of questions regarding life beyond school:  “Are you or have you ever been on medication?”  This will shed light on present or past medical or psychiatric diagnoses.  Follow this up with questions about compliance and whether the school knows about the diagnosis and/or medication.  Schools, at times, attempt to circumvent their responsibility for special education by recommending medical evaluations or additional medication.  Determine whether this is the case with your client and also determine the family’s attitude about medication and other treatments.  For example ask, “Do you receive any counseling?” If your client receives counseling, determine whether her or she receives it inside or outside of school.  School-based counseling can be a service on an IEP, through a guidance counselor, adjustment counselor, or social worker or from a community based, fee-for-service individual.  Long-term therapists, whether community-based or school based, can be invaluable sources of support for court cases.  Finally, verify “Are you involved with a state agency” (Department of Children and Families, Department of Mental Health and or the Department of Development Disabilities) and determine the extent of the services the client receives.

Amassing a rich file of background information for your juvenile client is fundamental to effective representation. Information from and about school is an essential and large portion of any juvenile’s background.  Requesting the student’s entire school record is an appropriate way to start, but integrating the Top Ten Questions into your client interview protocol will allow you to compile a more complete picture of your client’s educational experience and present you with opportunities to advocate on behalf of your client both inside and outside the classroom.  The EdLaw Project aims to support and equip attorneys representing clients in juvenile court and EdLaw staff attorneys are obliged to provide technical assistance to attorneys on how to incorporate these questions into their practice and to address other concerns regarding the educational situation of juvenile clients.  EdLaw’s offices are located on the second floor of the CPCS administrative building at 44 Bromfield Street in Boston, and its helpline number is 617-988-8460.

Bryna Williams is a Senior Staff Attorney with The EdLaw Project, an initiative of the Children’s Law Center of Massachusetts and The Committee for Public Counsel Services Youth Advocacy and Child and Family Law Divisions.  EdLaw focuses on supporting attorneys practicing juvenile court to effectively advocate for the clients’ educational rights.