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 Dogs
Notes:
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?