Curbing Litigation Abuses: Judicial Control of Adversary Ethics—The Model Rules of Professional Conduct and Proposed Amendments to the Rules of Civil Procedure

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial stages of litigation. Any proposed change or reform, therefore, is evaluated from the perspective of whether the change will encourage trial judges to act resolutely in sanctioning errant counsel, without simultaneously producing a chilling effect on zealous advocacy.