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.
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