Last one out of the Kinjaverse, turn out the lights.
Last one out of the Kinjaverse, turn out the lights.
Illustration for article titled LLB: The Sanctioning!

It’s been a while. So ... anything happen recently?

Today, we will look into a favorite topic of mine, yours, and Mr. Putin’s. Sanctions. Sanctions is one of my favorite words, in that it is a contranym; literally, the word is its own opposite. To see the confusion, review the following sentence:

“Congress did not sanction sanctions against the foreign country.”

Once you understand that this word means both “permit” and “deny/penalize,” it becomes readily apparent why sanction is a word often used in the legal profession; because lack of clarity is of the utmost importance in the law.* Examine the following opening:

“The Court sanctioned ...”

Okay, that’s great! The court just permitted me to ... oh, um, not so great, the court is penalizing me ... no, wait, okay, I need to bill at least three hours to figure this one out!


Nevertheless, the primary use of the word in legal-ese, and the primary way that lay people think of sanctions when it comes to a Court, is when they think of penalties. As in, “Oooooohhhhh, Ima think the Court is totes gonna sanction you for that!” But here’s the dirty little secret in the world of law; the Court is not going to sanction you. Or your attorney. Or anyone. The Court is going to sigh loudly, deny your motion for sanctions, and keep the case moving along. In order to understand why, we need to contrast the perspectives of lay people, attorneys, and judges.

1. Lay people. You’re mad as hell, and you’re not going to take it any more. Those idiots on the other side are wrong, wrong, wrong, and you’re a winner winner chicken dinner. They should be taught a lesson about how wrong they are.

2. Attorneys. The opposing counsel is an idiot. He is an idiot on the facts, the law, and the policy. He couldn’t litigate his way out of a paper bag, and he’s arrogant and obnoxious as well, unlike you, the reasonable guy. If he was a good attorney, he wouldn’t even be bringing this case; he should be sanctioned as a BAD BAD MAN.

3. Court. Really? Can’t I just go fishing? Yer Honor has to get his drink on.

Now, there are certain limited circumstances where the Court might be willing to award sanctions. The most common example would be for discovery violations. And the reason why is this; discovery shouldn’t be taking the Court’s time. The Court will get annoyed if the dumb attorneys can’t figure it out themselves. Discovery sanctions are (usually) fairly small. So, sure, if an attorney is clearly and obviously screwing around with discovery, there will be sanctions. This dislike of messin’ with the basic flow of litigation and cutting into the Court’s drinkin’ time is codified into the Federal, and most state, Rules of Procedure.


On the other hand, it is exceptionally difficult to get sanctions just because someone files a “frivolous” claim. The way to do so is (typically) found in Federal Rule of Civil Procedure 11, and its state equivalents. What they have in common is that you have to give the other side a chance to withdraw their claims. This is called the “safe harbor,” (not to the confused with the Safety Dance, although most attorneys are Men Without Hats) and you can’t even request sanctions if the claim is withdrawn within the safe harbor period. In addition, the Motion for Sanctions has to be perfect; for REASONS (Judge likes his Wild Turkey) any defects whatsoever means that it will fail. Finally, assuming you clear all the other hurdles, the Court will likely just deny it, because judges assume correctly that most idiot attorneys are like 5 year-olds squabbling over toys, keeping the parents from Martini Time.

So remember, dear reader, when you hear talk of “sanctions” always be skeptical. Courts rarely sanction sanctions. And if your attorney keeps saying that the other party, “Will be sanctioned for that terrible conduct,” don’t just take that with a grain of salt; you should probably take that with the whole salt shaker.


*Lack of clarity is the path to the Dark Side. Lack of clarity leads to confusion, confusion leads to motion practice, and motion practice leads to billable hours.

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