§11.4COMPARISON WITH FEDERAL RULE
Prior to the 1993 amendments to the federal rule, the Washington Supreme Court looked to federal decisions interpreting FED. R. CIV. P. 11 for guidance in construing CR 11. See, e.g., Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 218-19, 829 P.2d 1099 (1992). The court relied on the fact that the two rules were then "substantially similar." Id. Although the revised federal rule may no longer meet this standard in some instances, Washington courts continue to look to the federal rule and its interpretation for guidance. See, e.g., Splash Design, Inc. v. Lee, 104 Wn. App. 38, 44 n.7, 14 P.3d 879 (2000) ("This court looks to federal courts for guidance in construing CR 11."), review denied, 143 Wn.2d 1022 (2001); Biggs v. Vail, 124 Wn.2d 193, 198 n.2, 876 P.2d 448 (1994) (Biggs II) (adopting FED. R. CIV. P. 11 advisory committee notes regarding informal notice standard). Moreover, in some instances FED. R. CIV. P. 11 has simply incorporated into the explicit language of the rule standards or procedures that some (but not all) federal courts had inferred in interpreting the rule under its 1983 language. See, e.g., Townsend v. Holman Consulting Corp., 929 F.2d 1358 (9th Cir. 1990) (en banc).
| Practice Tip: | Even though the state and federal versions of CR 11 have differed significantly since 1993, considering that the Washington courts continue to look to the federal courts for guidance in construing CR 11, it is appropriate, as well as wise, to consider both federal and state authority, whether before or after 1993, in evaluating compliance with CR 11. Of course, counsel should take care to note the areas in which the two rules differ. |
The following section will provide a list of the ways in which CR 11 and FED. R. CIV. P. 11 differ, along with a more detailed explanation of the differences, where warranted.
| (1) | CR 11 applies to pleadings, motions, and legal memoranda; FED R. CIV. P. 11 applies, more broadly, to "pleading[s], written motion[s], and other paper[s]." FED. R. CIV. P. 11(a). |
| (2) | CR 11(a) requires the signing attorney's address and WSBA number to be stated; FED. R. CIV. P. 11 requires the paper to state the "signer's address, e-mail address, and telephone number." FED. R. CIV. P. 11(a). |
| (3) | CR 11 states how a pleading, motion, or legal memorandum must be signed by a party not represented by an attorney; FED. R. CIV P. 11 does not. |
| (4) | CR 11(a) states that various domestic relations petitions must be verified and that other pleadings may be verified; FED. R. CIV P. 11(a) states that verification is not required unless a rule or statute specifically states otherwise. |
| (5) | CR 11(a) provides that the "signature" of a party or an attorney constitutes a certificate under the rule; FED. R CIV. P. 11 provides that in addition to signing, the "filing, submitting, or later advocating" of a pleading, motion, or other paper constitutes a certificate. FED. R. CIV. P. 11(b). |
Because attorneys and parties incur liability not by filing papers but by "presenting" them, a federal court may impose sanctions based on filings made in state court before the action was removed to federal court (assuming that they are challenged and not withdrawn). Buster v. Greisen, 104 F.3d 1186, 1190 n.4 (9th Cir. 1997), cert. denied, 522 U.S. 981 (1997); Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223 (7th Cir. 1995).
| (6) | Under CR 11(a)(1), the signer certifies that the pleading, motion, or legal memorandum is "well grounded in fact"; under FED. R. CIV. P. 11(b)(3), the signer certifies that the factual contentions "have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." |
| (7) | Under CR 11(b), the signer certifies that the pleading, motion, or legal memorandum is warranted by existing law or a "good faith argument" for the |
