Roger Michalski

Volume 74, Issue 5, 1373-1402

Ethical norms in litigation are policed through overlapping regulatory regimes. One of these regimes is internal to litigation and split into different components, including Federal Rules of Civil Procedure 11, 26(g), and 37; Federal Rule of Appellate Procedure 38; 28 U.S.C. §§ 1927 and 1447(c); as well as courts’ inherent authority to sanction litigants and attorneys. In the standard narrative, these tools provide immediate corrections to unethical conduct, unlike bar sanctions or derivative malpractice actions that are delayed and uncertain. Together, these tools aim to effectuate the goal of Federal Rule of Civil Procedure 1: to make sure parties cooperate “to secure the just, speedy, and inexpensive determination of every action and proceeding.” This Essay assesses the extent to which these litigation sanction devices work in “every action,” or whether multidistrict litigation (“MDL”) cases are also idiosyncratic in this respect.

Using docket sheets from numerous MDL cases, I examine how often and with what result internal sanctions are used in MDL cases. The findings show low usage rates and low success rates (compared to 10,000 non-MDL cases filed during the same time window). This suggests that courts in MDL cases have replaced the policing function of formal sanctioning devices with other devices, most prominently the power to select, empower, and replace lead counsel.