The Double Edged Sword of Ford Motor Co., V. Benitez
By L. Steven Emmert and John E. Davidson, The Journal, Volumn 19 • Number 2 • 2007
In January 2007, the Supreme Court of Virginia handed down an opinion in Ford Motor Co. v. Benitez, 273 Va. 242 (2007). In that case, the court ruled that the long-standing practice of pleading a block of (often canned) affirmative defenses in an answer, so as to avoid waiving them, was improper unless the defense lawyer had an adequate factual basis for each defense.
Tell the truth, now: Did you see this coming? Or were you one of the throng of plaintiff’s lawyers who quietly grumbled about boilerplate defenses, but accepted them as a fact of trial-court life?
The Benitez ruling has been widely regarded as marking a sea change in defensive pleading. But those who read the decision carefully will perceive that there are two edges to this sword. This note will explain why plaintiffs’ lawyers also have to watch their pleadings carefully.
The Sanctions Statute
The sanctions imposed in Benitez originated with Virginia’s sanctions statute, Code (1950) §8.01-271.1. This statute is modeled on Fed.R.Civ.P. 11 (with one important distinction, which we’ll discuss below). The statute requires that every “pleading, written motion, and other paper” in the case be signed by an attorney (or by the party only, if he’s proceeding pro se). That signature acts as a certification that, among other things, there is a well grounded factual basis for each assertion in it, based on the signer’s belief “formed after reasonable inquiry.” If a paper is signed in violation of this requirement, then the court can sanction the person who signed it, or his client, or both.
Note that the statute does not require that the assertions be in fact true, or even that they must ultimately be proven at trial. The only requirements are that the signer must believe them to be well grounded, and that that belief must be based on a reasonable inquiry.
Benitez’s Suits and Ford’s Answers
Benitez was involved in a vehicle collision while riding in a car manufactured by Ford; she claimed that she was injured when an airbag deployed defectively. Accordingly, she sued Ford. The case proceeded through “extensive discovery” before being nonsuited and refiled.
It’s Ford’s answer to the second suit that got its lawyer into hot water. By the time he filed that answer, he already knew this case well; he knew that Benitez was a passenger, and he had no facts that would lead to defenses like assumption of the risk or contributory negligence. He pleaded them anyway.
During a hearing on a motion to strike those defenses, Ford’s lawyer (the attorney who signed the pleadings didn’t attend the hearing, but sent a young associate in his stead) conceded that Ford had no facts to support these boilerplate defenses, but was pleading them in order to avoid a possible waiver. The trial court didn’t buy that explanation; it imposed $2,000 in sanctions against Ford’s lawyer (the boss, not the young associate) for signing the answer in violation of the statute. The Supreme Court affirmed that, finding that the relevant time for determining whether a sound factual basis exists is when the pleading is signed, not at some undefined point later in the case.
How Does This Affect Plaintiff’s Lawyers?
Neither the Benitez doctrine nor the sanctions statute is limited to defensive pleadings; each time you sign your name to “a paper” (not just a pleading) in the case, you’re really making a certification. The Benitez case makes it clear that courts take this certification seriously.
The principal way in which plaintiff’s lawyers can run afoul of the statute is by filing “kitchen sink pleadings,” where they assert a host of alternative theories of recovery. Those theories often rely on some facts that may or may not pan out. Keep in mind that the lawyer only needs a good faith basis for believing the fact to be true, but that still must be preceded by a reasonable inquiry.
The Supreme Court recognizes that what constitutes a reasonable inquiry is a fluid concept. The Benitez opinion gives an example that will resonate with many of you:
Such an objective standard of reasonableness requires consideration of several factors. As an example, if a plaintiff employs an attorney near the deadline of the statute of limitations, the attorney may have no alternative except reliance on the information his client imparts to him when preparing a last-minute pleading.
273 Va. at 253. By this language, the court recognizes that plaintiff’s lawyers can be the targets of sanctions motions, too.
How to Stay Out of Benitez Jail
Here are some of the pleadings that might cause a plaintiff’s lawyer to have to defend against a sanctions motion:
Complaint – You must have an adequate foundation for your factual contentions, of course; that’s the direct holding of Benitez. But keep in mind that your legal assertions must also be “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Sweeping allegations of gross or wanton negligence for an ordinary fender bender can just as quickly land you in trouble.
Subpoenas and Requests for Production – Have you ever seen a “spite subpoena”? Have you ever discussed with a client the tactic of requesting an enormous number of documents, or some sensitive documents, in order to increase the cost or embarrassment to the other side, in hopes of getting them to settle? Trial courts may perceive that these documents are “filed for an improper purpose,” which is one of the other taboos in the sanctions statute.
Discovery Responses – These are often filed under oath (in the case of interrogatories), so the importance of accurate responses should already be plain to you. But keep in mind that a response as simple as “plaintiff has no such documents” can lead to sanctions if the trial court determines that you made only a token effort to investigate.
Briefs – Even briefs, which are often pure legal argument, don’t create a sanctions-free zone. One lawyer recently found out the hard way that a too-earnest effort to secure a rehearing from the Supreme Court got him instead sanctioned, in a published opinion that will serve as a reminder even to his remote descendants of his poor judgment. Taboada v. Daly Seven, 272 Va. 211 (2006).
The Federal Difference
As noted above, there is one key difference between federal Rule 11 and the Virginia sanctions statute. The federal rule has a “safe harbor” provision, giving a lawyer 21 days within which to withdraw a challenged document, and thereby avoid any possible sanctions. Virginia law doesn’t have that; essentially, as soon as you file or serve a paper that violates the statute, the “offense” is complete and you’re subject to being sanctioned.
In reality, if you realize that you have made an erroneous certification and you move to withdraw or amend it timely, our sense is that most judges will let it go. Benitez was a protracted and contentious case, and Ford’s lawyer may have expended most of his supply of goodwill with the trial court long before the fateful hearing. If you act seasonably and responsibly, you stand a good chance of avoiding his fate.
In case it hasn’t occurred to you, federal court really is a kinder, gentler place to practice, in at least this respect.
The Benitez opinion offers defendants one lifeline to avoid the waiver they had long feared. Rule 1:8 provides, in familiar prose, “Leave to amend shall be liberally granted in furtherance of the ends of justice.” The court notes that if a defendant discovers evidence that would lead to an unpleaded defense, he can seek leave to amend. In most situations, it will be an abuse of the trial court’s discretion to deny that leave.
The opinion notes that a plaintiff may also want to amend based on new evidence. But this lifeline isn’t the equivalent of the one the court casts off the other side of the boat. There is no statute of limitations for raising a defense, but there emphatically is one for pleading a claim. If a plaintiff discovers evidence to support a new theory of recovery, but the original limitations period on that claim has run during the pendency of the case, the plaintiff can only turn to the relation-back doctrine (Code §8.01-6.1) to avoid the time bar.
Note that this doctrine only applies to new claims against existing parties. Suppose the plaintiff instead discovers evidence to show that an additional person or entity may also be answerable for his claim? Worse yet, suppose that evidence shows that the original defendants aren’t responsible, but a stranger to the litigation is? In that event, the liberal amendment rule will be cold comfort to a plaintiff who elected not to file a kitchen sink pleading for fear of Benitez consequences.
In this regard, the Benitez doctrine is demonstrably harsher on plaintiffs than on defendants. It has never been permissible to file frivolous pleadings; Benitez doesn’t change that. But if your idea of defensive lawyering is to plead as many claims, against as many different defendants, as you can conceive, then you need to adjust your thinking, effective immediately.
If you read bumper stickers, you’ve probably read this one, no doubt slapped on a vehicle driven by a Special Forces enlisted man: “Kill ‘em all; let God sort ‘em out.” In the wake of the Benitez decision, plaintiff’s lawyers have to recognize that they can’t simply sue ‘em all, and let the court sort ‘em out.
In truth, the Benitez doctrine really does cut both ways; it is a victory not for the plaintiff’s or defense bar, but for reasoned, well-supported pleading practices.