Understanding the Impact of Trauma
Trauma-informed care (TIC) involves a broad understanding of traumatic stress reactions and common responses to trauma. Providers need to understand how trauma can affect treatment presentation, engagement, and the outcome of behavioral health services. This chapter examines common experiences survivors may encounter immediately following or long after a traumatic experience.
Trauma, including one-time, multiple, or long-lasting repetitive events, affects everyone differently. Some individuals may clearly display criteria associated with posttraumatic stress disorder (PTSD), but many more individuals will exhibit resilient responses or brief subclinical symptoms or consequences that fall outside of diagnostic criteria. The impact of trauma can be subtle, insidious, or outright destructive. How an event affects an individual depends on many factors, including characteristics of the individual, the type and characteristics of the event(s), developmental processes, the meaning of the trauma, and sociocultural factors.
This chapter begins with an overview of common responses, emphasizing that traumatic stress reactions are normal reactions to abnormal circumstances. It highlights common short- and long-term responses to traumatic experiences in the context of individuals who may seek behavioral health services. This chapter discusses psychological symptoms not represented in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5; American Psychiatric Association [APA], 2013a), and responses associated with trauma that either fall below the threshold of mental disorders or reflect resilience. It also addresses common disorders associated with traumatic stress. This chapter explores the role of culture in defining mental illness, particularly PTSD, and ends by addressing co-occurring mental and substance-related disorders.
TIC Framework in Behavioral Health Services--
The Impact of Trauma
Sequence of Trauma ReactionsSurvivors’ immediate reactions in the aftermath of trauma are quite complicated and are affected by their own experiences, the accessibility of natural supports and healers, their coping and life skills and those of immediate family, and the responses of the larger community in which they live. Although reactions range in severity, even the most acute responses are natural responses to manage trauma— they are not a sign of psychopathology. Coping styles vary from action oriented to reflective and from emotionally expressive to reticent. Clinically, a response style is less important than the degree to which coping efforts successfully allow one to continue necessary activities, regulate emotions, sustain self-esteem, and maintain and enjoy interpersonal contacts. Indeed, a past error in traumatic stress psychology, particularly regarding group or mass traumas, was the assumption that all survivors need to express emotions associated with trauma and talk about the trauma; more recent research indicates that survivors who choose not to process their trauma are just as psychologically healthy as those who do. The most recent psychological debriefing approaches emphasize respecting the individual’s style of coping and not valuing one type over another.
Trauma can affect one’s beliefs about the future via loss of hope, limited expectations about life, fear that life will end abruptly or early, or anticipation that normal life events won’t occur (e.g., access to education, ability to have a significant and committed relationship, good opportunities for work).
Initial reactions to trauma can include exhaustion, confusion, sadness, anxiety, agitation, numbness, dissociation, confusion, physical arousal, and blunted affect. Most responses are normal in that they affect most survivors and are socially acceptable, psychologically effective, and self-limited. Indicators of more severe responses include continuous distress without periods of relative calm or rest, severe dissociation symptoms, and intense intrusive recollections that continue despite a return to safety. Delayed responses to trauma can include persistent fatigue, sleep disorders, nightmares, fear of recurrence, anxiety focused on flashbacks, depression, and avoidance of emotions, sensations, or activities that are associated with the trauma, even remotely.
Immediate and Delayed Reactions to Trauma.
Common Experiences and Responses to TraumaA variety of reactions are often reported and/or observed after trauma. Most survivors exhibit immediate reactions, yet these typically resolve without severe long-term consequences. This is because most trauma survivors are highly resilient and develop appropriate coping strategies, including the use of social supports, to deal with the aftermath and effects of trauma. Most recover with time, show minimal distress, and function effectively across major life areas and developmental stages. Even so, clients who show little impairment may still have subclinical symptoms or symptoms that do not fit diagnostic criteria for acute stress disorder (ASD) or PTSD. Only a small percentage of people with a history of trauma show impairment and symptoms that meet criteria for trauma-related stress disorders, including mood and anxiety disorders.
The following sections focus on some common reactions across domains (emotional, physical, cognitive, behavioral, social, and developmental) associated with singular, multiple, and enduring traumatic events. These reactions are often normal responses to trauma but can still be distressing to experience. Such responses are not signs of mental illness, nor do they indicate a mental disorder. Traumatic stress-related disorders comprise a specific constellation of symptoms and criteria.
Emotional reactions to trauma can vary greatly and are significantly influenced by the individual’s sociocultural history. Beyond the initial emotional reactions during the event, those most likely to surface include anger, fear, sadness, and shame. However, individuals may encounter difficulty in identifying any of these feelings for various reasons. They might lack experience with or prior exposure to emotional expression in their family or community. They may associate strong feelings with the past trauma, thus believing that emotional expression is too dangerous or will lead to feeling out of control (e.g., a sense of “losing it” or going crazy). Still others might deny that they have any feelings associated with their traumatic experiences and define their reactions as numbness or lack of emotions.
Some trauma survivors have difficulty regulating emotions such as anger, anxiety, sadness, and shame—this is more so when the trauma occurred at a young age (van der Kolk, Roth, Pelcovitz, & Mandel, 1993). In individuals who are older and functioning well prior to the trauma, such emotional dysregulation is usually short lived and represents an immediate reaction to the trauma, rather than an ongoing pattern. Self-medication—namely, substance abuse—is one of the methods that traumatized people use in an attempt to regain emotional control, although ultimately it causes even further emotional dysregulation (e.g., substance-induced changes in affect during and after use). Other efforts toward emotional regulation can include engagement in high-risk or self-injurious behaviors, disordered eating, compulsive behaviors such as gambling or overworking, and repression or denial of emotions; however, not all behaviors associated with self-regulation are considered negative. In fact, some individuals find creative, healthy, and industrious ways to manage strong affect generated by trauma, such as through renewed commitment to physical activity or by creating an organization to support survivors of a particular trauma.
Traumatic stress tends to evoke two emotional extremes: feeling either too much (overwhelmed) or too little (numb) emotion. Treatment can help the client find the optimal level of emotion and assist him or her with appropriately experiencing and regulating difficult emotions. In treatment, the goal is to help clients learn to regulate their emotions without the use of substances or other unsafe behavior. This will likely require learning new coping skills and how to tolerate distressing emotions; some clients may benefit from mindfulness practices, cognitive restructuring, and trauma-specific desensitization approaches, such as exposure therapy and eye movement desensitization and reprocessing (EMDR; refer to Part 1, Chapter 6, for more information on trauma-specific therapies).
Numbing is a biological process whereby emotions are detached from thoughts, behaviors, and memories. In the following case illustration, Sadhanna’s numbing is evidenced by her limited range of emotions associated with interpersonal interactions and her inability to associate any emotion with her history of abuse. She also possesses a belief in a foreshortened future. A prospective longitudinal study (Malta, Levitt, Martin, Davis, & Cloitre, 2009) that followed the development of PTSD in disaster workers highlighted the importance of understanding and appreciating numbing as a traumatic stress reaction. Because numbing symptoms hide what is going on inside emotionally, there can be a tendency for family members, counselors, and other behavioral health staff to assess levels of traumatic stress symptoms and the impact of trauma as less severe than they actually are.
Case Illustration: Sadhanna
Sadhanna is a 22-year-old woman mandated to outpatient mental health and substance abuse treatment as the alternative to incarceration. She was arrested and charged with assault after arguing and fighting with another woman on the street. At intake, Sadhanna reported a 7-year history of alcohol abuse and one depressive episode at age 18. She was surprised that she got into a fight but admitted that she was drinking at the time of the incident. She also reported severe physical abuse at the hands of her mother’s boyfriend between ages 4 and 15. Of particular note to the intake worker was Sadhanna’s matter-of-fact way of presenting the abuse history. During the interview, she clearly indicated that she did not want to attend group therapy and hear other people talk about their feelings, saying, “I learned long ago not to wear emotions on my sleeve.”
Sadhanna reported dropping out of 10th grade, saying she never liked school. She didn’t expect much from life. In Sadhanna’s first weeks in treatment, she reported feeling disconnected from other group members and questioned the purpose of the group. When asked about her own history, she denied that she had any difficulties and did not understand why she was mandated to treatment. She further denied having feelings about her abuse and did not believe that it affected her life now. Group members often commented that she did not show much empathy and maintained a flat affect, even when group discussions were emotionally charged.
Diagnostic criteria for PTSD place considerable emphasis on psychological symptoms, but some people who have experienced traumatic stress may present initially with physical symptoms. Thus, primary care may be the first and only door through which these individuals seek assistance for trauma-related symptoms. Moreover, there is a significant connection between trauma, including adverse childhood experiences (ACEs), and chronic health conditions. Common physical disorders and symptoms include somatic complaints; sleep disturbances; gastrointestinal, cardiovascular, neurological, musculoskeletal, respiratory, and dermatological disorders; urological problems; and substance use disorders.
Somatization indicates a focus on bodily symptoms or dysfunctions to express emotional distress. Somatic symptoms are more likely to occur with individuals who have traumatic stress reactions, including PTSD. People from certain ethnic and cultural backgrounds may initially or solely present emotional distress via physical ailments or concerns. Many individuals who present with somatization are likely unaware of the connection between their emotions and the physical symptoms that they’re experiencing. At times, clients may remain resistant to exploring emotional content and remain focused on bodily complaints as a means of avoidance. Some clients may insist that their primary problems are physical even when medical evaluations and tests fail to confirm ailments. In these situations, somatization may be a sign of a mental illness. However, various cultures approach emotional distress through the physical realm or view emotional and physical symptoms and well-being as one. It is important not to assume that clients with physical complaints are using somatization as a means to express emotional pain; they may have specific conditions or disorders that require medical attention. Foremost, counselors need to refer for medical evaluation.
Advice to Counselors: Using Information About Biology and Trauma
Educate Your Clients:
Biology of Trauma
Trauma biology is an area of burgeoning research, with the promise of more complex and explanatory findings yet to come. Although a thorough presentation on the biological aspects of trauma is beyond the scope of this publication, what is currently known is that exposure to trauma leads to a cascade of biological changes and stress responses. These biological alterations are highly associated with PTSD, other mental illnesses, and substance use disorders. These include:
Hyperarousal and Sleep Disturbances
A common symptom that arises from traumatic experiences is hyperarousal (also called hypervigilance). Hyperarousal is the body’s way of remaining prepared. It is characterized by sleep disturbances, muscle tension, and a lower threshold for startle responses and can persist years after trauma occurs. It is also one of the primary diagnostic criteria for PTSD.
Hyperarousal is a consequence of biological changes initiated by trauma. Although it serves as a means of self-protection after trauma, it can be detrimental. Hyperarousal can interfere with an individual’s ability to take the necessary time to assess and appropriately respond to specific input, such as loud noises or sudden movements. Sometimes, hyperarousal can produce overreactions to situations perceived as dangerous when, in fact, the circumstances are safe.
Case Illustration: Kimi
Kimi is a 35-year-old Native American woman who was group raped at the age of 16 on her walk home from a suburban high school. She recounts how her whole life changed on that day. “I never felt safe being alone after the rape. I used to enjoy walking everywhere. Afterward, I couldn’t tolerate the fear that would arise when I walked in the neighborhood. It didn’t matter whether I was alone or with friends—every sound that I heard would throw me into a state of fear. I felt like the same thing was going to happen again. It’s gotten better with time, but I often feel as if I’m sitting on a tree limb waiting for it to break. I have a hard time relaxing. I can easily get startled if a leaf blows across my path or if my children scream while playing in the yard. The best way I can describe how I experience life is by comparing it to watching a scary, suspenseful movie—anxiously waiting for something to happen, palms sweating, heart pounding, on the edge of your chair.”
Along with hyperarousal, sleep disturbances are very common in individuals who have experienced trauma. They can come in the form of early awakening, restless sleep, difficulty falling asleep, and nightmares. Sleep disturbances are most persistent among individuals who have trauma-related stress; the disturbances sometimes remain resistant to intervention long after other traumatic stress symptoms have been successfully treated. Numerous strategies are available beyond medication, including good sleep hygiene practices, cognitive rehearsals of nightmares, relaxation strategies, and nutrition.
Traumatic experiences can affect and alter cognitions. From the outset, trauma challenges the just-world or core life assumptions that help individuals navigate daily life (Janoff-Bulman, 1992). For example, it would be difficult to leave the house in the morning if you believed that the world was not safe, that all people are dangerous, or that life holds no promise. Belief that one’s efforts and intentions can protect oneself from bad things makes it less likely for an individual to perceive personal vulnerability. However, traumatic events—particularly if they are unexpected—can challenge such beliefs.
Cognitions and Trauma
The following examples reflect some of the types of cognitive or thought-process changes that can occur in response to traumatic stress.
Misinterpreting a current situation as dangerous because it resembles, even remotely, a previous trauma (e.g., a client overreacting to an overturned canoe in 8 inches of water, as if she and her paddle companion would drown, due to her previous experience of nearly drowning in a rip current 5 years earlier).
Excessive or Inappropriate Guilt:
Attempting to make sense cognitively and gain control over a traumatic experience by assuming responsibility or possessing survivor’s guilt, because others who experienced the same trauma did not survive.
Demonstrating inaccurate rationalizations, idealizations, or justifications of the perpetrator’s behavior, particularly if the perpetrator is or was a caregiver. Other similar reactions mirror idealization; traumatic bonding is an emotional attachment that develops (in part to secure survival) between perpetrators who engage in interpersonal trauma and their victims, and Stockholm syndrome involves compassion and loyalty toward hostage takers (de Fabrique, Van Hasselt, Vecchi, & Romano, 2007).
Trauma-induced hallucinations or delusions:
Experiencing hallucinations and delusions that, although they are biological in origin, contain cognitions that are congruent with trauma content (e.g., a woman believes that a person stepping onto her bus is her father, who had sexually abused her repeatedly as child, because he wore shoes similar to those her father once wore).
Intrusive thoughts and memories:
Experiencing, without warning or desire, thoughts and memories associated with the trauma. These intrusive thoughts and memories can easily trigger strong emotional and behavioral reactions, as if the trauma was recurring in the present. The intrusive thoughts and memories can come rapidly, referred to as flooding, and can be disruptive at the time of their occurrence. If an individual experiences a trigger, he or she may have an increase in intrusive thoughts and memories for a while. For instance, individuals who inadvertently are retraumatized due to program or clinical practices may have a surge of intrusive thoughts of past trauma, thus making it difficult for them to discern what is happening now versus what happened then. Whenever counseling focuses on trauma, it is likely that the client will experience some intrusive thoughts and memories. It is important to develop coping strategies before, as much as possible, and during the delivery of trauma-informed and trauma-specific treatment.
Let’s say you always considered your driving time as “your time”—and your car as a safe place to spend that time. Then someone hits you from behind at a highway entrance. Almost immediately, the accident affects how you perceive the world, and from that moment onward, for months following the crash, you feel unsafe in any car. You become hypervigilant about other drivers and perceive that other cars are drifting into your lane or failing to stop at a safe distance behind you. For a time, your perception of safety is eroded, often leading to compensating behaviors (e.g., excessive glancing into the rearview mirror to see whether the vehicles behind you are stopping) until the belief is restored or reworked. Some individuals never return to their previous belief systems after a trauma, nor do they find a way to rework them—thus leading to a worldview that life is unsafe. Still, many other individuals are able to return to organizing core beliefs that support their perception of safety.
Many factors contribute to cognitive patterns prior to, during, and after a trauma. Adopting Beck and colleagues’ cognitive triad model (1979), trauma can alter three main cognitive patterns: thoughts about self, the world (others/environment), and the future. To clarify, trauma can lead individuals to see themselves as incompetent or damaged, to see others and the world as unsafe and unpredictable, and to see the future as hopeless—believing that personal suffering will continue, or negative outcomes will preside for the foreseeable future (see Exhibit 1.3-2). Subsequently, this set of cognitions can greatly influence clients’ belief in their ability to use internal resources and external support effectively. From a cognitive– behavioral perspective, these cognitions have a bidirectional relationship in sustaining or contributing to the development of depressive and anxiety symptoms after trauma. However, it is possible for cognitive patterns to help protect against debilitating psychological symptoms as well. Many factors contribute to cognitive patterns prior to, during, and after a trauma.
An integral part of experiencing trauma is feeling different from others, whether or not the trauma was an individual or group experience. Traumatic experiences typically feel surreal and challenge the necessity and value of mundane activities of daily life. Survivors often believe that others will not fully understand their experiences, and they may think that sharing their feelings, thoughts, and reactions related to the trauma will fall short of expectations. However horrid the trauma may be, the experience of the trauma is typically profound.
The type of trauma can dictate how an individual feels different or believes that they are different from others. Traumas that generate shame will often lead survivors to feel more alienated from others—believing that they are “damaged goods.” When individuals believe that their experiences are unique and incomprehensible, they are more likely to seek support, if they seek support at all, only with others who have experienced a similar trauma.
Triggers and FlashbacksTriggers
A trigger is a stimulus that sets off a memory of a trauma or a specific portion of a traumatic experience. Imagine you were trapped briefly in a car after an accident. Then, several years later, you were unable to unlatch a lock after using a restroom stall; you might have begun to feel a surge of panic reminiscent of the accident, even though there were other avenues of escape from the stall. Some triggers can be identified and anticipated easily, but many are subtle and inconspicuous, often surprising the individual or catching him or her off guard. In treatment, it is important to help clients identify potential triggers, draw a connection between strong emotional reactions and triggers, and develop coping strategies to manage those moments when a trigger occurs. A trigger is any sensory reminder of the traumatic event: a noise, smell, temperature, other physical sensation, or visual scene. Triggers can generalize to any characteristic, no matter how remote, that resembles or represents a previous trauma, such as revisiting the location where the trauma occurred, being alone, having your children reach the same age that you were when you experienced the trauma, seeing the same breed of dog that bit you, or hearing loud voices. Triggers are often associated with the time of day, season, holiday, or anniversary of the event.
A flashback is reexperiencing a previous traumatic experience as if it were actually happening in that moment. It includes reactions that often resemble the client’s reactions during the trauma. Flashback experiences are very brief and typically last only a few seconds, but the emotional aftereffects linger for hours or longer. Flashbacks are commonly initiated by a trigger, but not necessarily. Sometimes, they occur out of the blue. Other times, specific physical states increase a person’s vulnerability to reexperiencing a trauma, (e.g., fatigue, high stress levels). Flashbacks can feel like a brief movie scene that intrudes on the client. For example, hearing a car backfire on a hot, sunny day may be enough to cause a veteran to respond as if he or she were back on military patrol. Other ways people reexperience trauma, besides flashbacks, are via nightmares and intrusive thoughts of the trauma.
Advice to Counselors:
Helping Clients Manage Flashbacks and TriggersIf a client is triggered in a session or during some aspect of treatment, help the client focus on what is happening in the here and now; that is, use grounding techniques. Behavioral health service providers should be prepared to help the client get regrounded so that they can distinguish between what is happening now versus what had happened in the past (see Covington, 2008, and Najavits, 2002b, 2007b, for more grounding techniques). Offer education about the experience of triggers and flashbacks, and then normalize these events as common traumatic stress reactions. Afterward, some clients need to discuss the experience and understand why the flashback or trigger occurred. It often helps for the client to draw a connection between the trigger and the traumatic event(s). This can be a preventive strategy whereby the client can anticipate that a given situation places him or her at higher risk for retraumatization and requires use of coping strategies, including seeking support.
Source: Green Cross Academy of Traumatology, 2010.
Dissociation, Depersonalization, and Derealization
Dissociation is a mental process that severs connections among a person’s thoughts, memories, feelings, actions, and/or sense of identity. Most of us have experienced dissociation—losing the ability to recall or track a particular action (e.g., arriving at work but not remembering the last minutes of the drive). Dissociation happens because the person is engaged in an automatic activity and is not paying attention to his or her immediate environment. Dissociation can also occur during severe stress or trauma as a protective element whereby the individual incurs distortion of time, space, or identity. This is a common symptom in traumatic stress reactions.
Dissociation helps distance the experience from the individual. People who have experienced severe or developmental trauma may have learned to separate themselves from distress to survive. At times, dissociation can be very pervasive and symptomatic of a mental disorder, such as dissociative identity disorder (DID; formerly known as multiple personality disorder). According to the DSM-5, “dissociative disorders are characterized by a disruption of and/or discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control, and behavior” (APA, 2013a, p. 291). Dissociative disorder diagnoses are closely associated with histories of severe childhood trauma or pervasive, human-caused, intentional trauma, such as that experienced by concentration camp survivors or victims of ongoing political imprisonment, torture, or long-term isolation. A mental health professional, preferably with significant training in working with dissociative disorders and with trauma, should be consulted when a dissociative disorder diagnosis is suspected.
Potential Signs of Dissociation
The characteristics of DID can be commonly accepted experiences in other cultures, rather than being viewed as symptomatic of a traumatic experience. For example, in non-Western cultures, a sense of alternate beings within oneself may be interpreted as being inhabited by spirits or ancestors (Kirmayer, 1996). Other experiences associated with dissociation include depersonalization—psychologically “leaving one’s body,” as if watching oneself from a distance as an observer or through derealization, leading to a sense that what is taking place is unfamiliar or is not real.
If clients exhibit signs of dissociation, behavioral health service providers can use grounding techniques to help them reduce this defense strategy. One major long-term consequence of dissociation is the difficulty it causes in connecting strong emotional or physical reactions with an event. Often, individuals may believe that they are going crazy because they are not in touch with the nature of their reactions. By educating clients on the resilient qualities of dissociation while also emphasizing that it prevents them from addressing or validating the trauma, individuals can begin to understand the role of dissociation. All in all, it is important when working with trauma survivors that the intensity level is not so great that it triggers a dissociative reaction and prevents the person from engaging in the process.
Traumatic stress reactions vary widely; often, people engage in behaviors to manage the aftereffects, the intensity of emotions, or the distressing aspects of the traumatic experience. Some people reduce tension or stress through avoidant, self-medicating (e.g., alcohol abuse), compulsive (e.g., overeating), impulsive (e.g., high-risk behaviors), and/or self-injurious behaviors. Others may try to gain control over their experiences by being aggressive or subconsciously reenacting aspects of the trauma.
Behavioral reactions are also the consequences of, or learned from, traumatic experiences. For example, some people act like they can’t control their current environment, thus failing to take action or make decisions long after the trauma (learned helplessness). Other associate elements of the trauma with current activities, such as by reacting to an intimate moment in a significant relationship as dangerous or unsafe years after a date rape. The following sections discuss behavioral consequences of trauma and traumatic stress reactions.
ReenactmentsA hallmark symptom of trauma is reexperiencing the trauma in various ways.
Reexperiencing can occur through reenactments (literally, to “redo”), by which trauma survivors repetitively relive and recreate a past trauma in their present lives. This is very apparent in children, who play by mimicking what occurred during the trauma, such as by pretending to crash a toy airplane into a toy building after seeing televised images of the terrorist attacks on the World Trade Center on September 11, 2001. Attempts to understand reenactments are very complicated, as reenactments occur for a variety of reasons. Sometimes, individuals reenact past traumas to master them. Examples of reenactments include a variety of behaviors: self-injurious behaviors,
hypersexuality, walking alone in unsafe areas or other high-risk behaviors, driving recklessly, or involvement in repetitive destructive relationships (e.g., repeatedly getting into romantic relationships with people who are abusive or violent), to name a few.
Self-Harm and Self-Destructive Behaviors
Self-harm is any type of intentionally self-inflicted harm, regardless of the severity of injury or whether suicide is intended. Often, self-harm is an attempt to cope with emotional or physical distress that seems overwhelming or to cope with a profound sense of dissociation or being trapped, helpless, and “damaged” (Herman, 1997; Santa Mina & Gallop, 1998). Self-harm is associated with past childhood sexual abuse and other forms of trauma as well as substance abuse. Thus, addressing self-harm requires attention to the client’s reasons for self-harm. More than likely, the client needs help recognizing and coping with emotional or physical distress in manageable amounts and ways.
Resilient Responses to TraumaMany people find healthy ways to cope with, respond to, and heal from trauma. Often, people automatically reevaluate their values and redefine what is important after a trauma. Such resilient responses include:
Case Illustration: Marco
Marco, a 30-year-old man, sought treatment at a local mental health center after a 2-year bout of anxiety symptoms. He was an active member of his church for 12 years, but although he sought help from his pastor about a year ago, he reports that he has had no contact with his pastor or his church since that time. Approximately 3 years ago, his wife took her own life. He describes her as his soul-mate and has had a difficult time understanding her actions or how he could have prevented them.
In the initial intake, he mentioned that he was the first person to find his wife after the suicide and reported feelings of betrayal, hurt, anger, and devastation since her death. He claimed that everyone leaves him or dies. He also talked about his difficulty sleeping, having repetitive dreams of his wife, and avoiding relationships. In his first session with the counselor, he initially rejected the counselor before the counselor had an opportunity to begin reviewing and talking about the events and discomfort that led him to treatment.
In this scenario, Marco is likely reenacting his feelings of abandonment by attempting to reject others before he experiences another rejection or abandonment. In this situation, the counselor will need to recognize the reenactment, explore the behavior, and examine how reenactments appear in other situations in Marco’s life.
Among the self-harm behaviors reported in the literature are cutting, burning skin by heat (e.g., cigarettes) or caustic liquids, punching hard enough to self-bruise, head banging, hair pulling, self-poisoning, inserting foreign objects into bodily orifices, excessive nail biting, excessive scratching, bone breaking, gnawing at flesh, interfering with wound healing, tying off body parts to stop breathing or blood flow, swallowing sharp objects, and suicide. Cutting and burning are among the most common forms of self-harm.
Self-harm tends to occur most in people who have experienced repeated and/or early trauma (e.g., childhood sexual abuse) rather than in those who have undergone a single adult trauma (e.g., a community-wide disaster or a serious car accident). There are strong associations between eating disorders, self-harm, and substance abuse (Claes & Vandereycken, 2007; for discussion, see Harned, Najavits, & Weiss, 2006). Self-mutilation is also associated with (and part of the diagnostic criteria for) a number of personality disorders, including borderline and histrionic, as well as DID, depression, and some forms of schizophrenia; these disorders can co-occur with traumatic stress reactions and disorders.
It is important to distinguish self-harm that is suicidal from self-harm that is not suicidal and to assess and manage both of these very serious dangers carefully. Most people who engage in self-harm are not doing so with the intent to kill themselves (Noll, Horowitz, Bonanno, Trickett, & Putnam, 2003)—although self-harm can be life threatening and can escalate into suicidality if not managed therapeutically. Self-harm can be a way of getting attention or manipulating others, but most often it is not. Self-destructive behaviors such as substance abuse, restrictive or binge eating, reckless automobile driving, or high-risk impulsive behavior are different from self-harming behaviors but are also seen in clients with a history of trauma. Self-destructive behaviors differ from self-harming behaviors in that there may be no immediate negative impact of the behavior on the individual; they differ from suicidal behavior in that there is no intent to cause death in the short term.
Advice to Counselors:
Working With Clients Who Are Self-InjuriousCounselors who are unqualified or uncomfortable working with clients who demonstrate self-harming, self-destructive, or suicidal or homicidal ideation, intent, or behavior should work with their agencies and supervisors to refer such clients to other counselors. They should consider seeking specialized supervision on how to manage such clients effectively and safely and how to manage their feelings about these issues. The following suggestions assume that the counselor has had sufficient training and experience to work with clients who are self-injurious. To respond appropriately to a client who engages in self-harm, counselors should:
TIP 50, Addressing Suicidal Thoughts and Behaviors in Substance Abuse Treatment (CSAT, 2009a), has examples of safety agreements specifically for suicidal clients and discusses their uses in more detail. There is no credible evidence that a safety agreement is effective in preventing a suicide attempt or death. Safety agreements for clients with suicidal thoughts and behaviors should only be used as an adjunct support accompanying professional screening, assessment, and treatment for people with suicidal thoughts and behaviors. Keep in mind that safety plans or agreements may be perceived by the trauma survivor as a means of controlling behavior, subsequently replicating or triggering previous traumatic experiences.
All professionals—and in some States, anyone—could have ethical and legal responsibilities to those clients who pose an imminent danger to themselves or others. Clinicians should be aware of the pertinent State laws where they practice and the relevant Federal and professional regulations.
However, as with self-harming behavior, self-destructive behavior needs to be recognized and addressed and may persist—or worsen—without intervention.
Consumption of Substances
Substance use often is initiated or increased after trauma. Clients in early recovery— especially those who develop PTSD or have it reactivated—have a higher relapse risk if they experience a trauma. In the first 2 months after September 11, 2001, more than a quarter of New Yorker residents who smoked cigarettes, drank alcohol, or used marijuana (about 265,000 people) increased their consumption. The increases continued 6 months after the attacks (Vlahov, Galea, Ahern, Resnick, & Kilpatrick, 2004). A study by the Substance Abuse and Mental Health Services Administration (SAMHSA, Office of Applied Studies, 2002) used National Survey on Drug Use and Health data to compare the first three quarters of 2001 with the last quarter and reported an increase in the prevalence rate for alcohol use among people 18 or older in the New York metropolitan area during the fourth quarter.
Interviews with New York City residents who were current or former cocaine or heroin users indicated that many who had been clean for 6 months or less relapsed after September 11, 2001. Others, who lost their income and could no longer support their habit, enrolled in methadone programs (Weiss et al., 2002). After the Oklahoma City bombing in 1995, Oklahomans reported double the normal rate of alcohol use, smoking more cigarettes, and a higher incidence of initiating smoking months and even years after the bombing (Smith, Christiansen, Vincent, & Hann, 1999).
Self-medicationKhantzian’s self-medication theory (1985) suggests that drugs of abuse are selected for their specific effects. However, no definitive pattern has yet emerged of the use of particular substances in relation to PTSD or trauma symptoms. Use of substances can vary based on a variety of factors, including which trauma symptoms are most prominent for an individual and the individual’s access to particular substances. Unresolved traumas sometimes lurk behind the emotions that clients cannot allow themselves to experience. Substance use and abuse in trauma survivors can be a way to self-medicate and thereby avoid or displace difficult emotions associated with traumatic experiences. When the substances are withdrawn, the survivor may use other behaviors to self-soothe, self-medicate, or avoid emotions. As likely, emotions can appear after abstinence in the form of anxiety and depression.
Avoidance often coincides with anxiety and the promotion of anxiety symptoms. Individuals begin to avoid people, places, or situations to alleviate unpleasant emotions, memories, or circumstances. Initially, the avoidance works, but over time, anxiety increases and the perception that the situation is unbearable or dangerous increases as well, leading to a greater need to avoid. Avoidance can be adaptive, but it is also a behavioral pattern that reinforces perceived danger without testing its validity, and it typically leads to greater problems across major life areas (e.g., avoiding emotionally oriented conversations in an intimate relationship). For many individuals who have traumatic stress reactions, avoidance is commonplace. A person may drive 5 miles longer to avoid the road where he or she had an accident. Another individual may avoid crowded places in fear of an assault or to circumvent strong emotional memories about an earlier assault that took place in a crowded area. Avoidance can come in many forms. When people can’t tolerate strong affects associated with traumatic memories, they avoid, project, deny, or distort their trauma-related emotional and cognitive experiences. A key ingredient in trauma recovery is learning to manage triggers, memories, and emotions without avoidance—in essence, becoming desensitized to traumatic memories and associated symptoms.
A key ingredient in the early stage of TIC is to establish, confirm, or reestablish a support system, including culturally appropriate activities, as soon as possible. Social supports and relationships can be protective factors against traumatic stress. However, trauma typically affects relationships significantly, regardless of whether the trauma is interpersonal or is of some other type. Relationships require emotional exchanges, which means that others who have close relationships or friendships with the individual who survived the trauma(s) are often affected as well—either through secondary traumatization or by directly experiencing the survivor’s traumatic stress reactions. In natural disasters, social and community supports can be abruptly eroded and difficult to rebuild after the initial disaster relief efforts have waned.
Survivors may readily rely on family members, friends, or other social supports—or they may avoid support, either because they believe that no one will be understanding or trustworthy or because they perceive their own needs as a burden to others. Survivors who have strong emotional or physical reactions, including outbursts during nightmares, may pull away further in fear of being unable to predict their own reactions or to protect their own safety and that of others. Often, trauma survivors feel ashamed of their stress reactions, which further hampers their ability to use their support systems and resources adequately.
Many survivors of childhood abuse and interpersonal violence have experienced a significant sense of betrayal. They have often encountered trauma at the hands of trusted caregivers and family members or through significant relationships. This history of betrayal can disrupt forming or relying on supportive relationships in recovery, such as peer supports and counseling. Although this fear of trusting others is protective, it can lead to difficulty in connecting with others and greater vigilance in observing the behaviors of others, including behavioral health service providers. It is exceptionally difficult to override the feeling that someone is going to hurt you, take advantage of you, or, minimally, disappoint you. Early betrayal can affect one’s ability to develop attachments, yet the formation of supportive relationships is an important antidote in the recovery from traumatic stress.
Each age group is vulnerable in unique ways to the stresses of a disaster, with children and the elderly at greatest risk. Young children may display generalized fear, nightmares, heightened arousal and confusion, and physical symptoms, (e.g., stomachaches, headaches). School-age children may exhibit symptoms such as aggressive behavior and anger, regression to behavior seen at younger ages, repetitious traumatic play, loss of ability to concentrate, and worse school performance. Adolescents may display depression and social withdrawal, rebellion, increased risky activities such as sexual acting out, wish for revenge and action-oriented responses to trauma, and sleep and eating disturbances (Hamblen, 2001). Adults may display sleep problems, increased agitation, hypervigilance, isolation or withdrawal, and increased use of alcohol or drugs. Older adults may exhibit increased withdrawal and isolation, reluctance to leave home, worsening of chronic illnesses, confusion, depression, and fear (DeWolfe & Nordboe, 2000b).
Neurobiological Development: Consequences of Early Childhood TraumaFindings in developmental psychobiology suggest that the consequences of early maltreatment produce enduring negative effects on brain development (De Bellis, 2002; Liu, Diorio, Day, Francis, & Meaney, 2000; Teicher, 2002). Research suggests that the first stage in a cascade of events produced by early trauma and/or maltreatment involves the disruption of chemicals that function as neurotransmitters (e.g., cortisol, norepinephrine, dopamine), causing escalation of the stress response (Heim, Mletzko, Purselle, Musselman, & Nemeroff, 2008; Heim, Newport, Mletzko, Miller, & Nemeroff, 2008; Teicher, 2002). These chemical responses can then negatively affect critical neural growth during specific sensitive periods of childhood development and can even lead to cell death.
Adverse brain development can also result from elevated levels of cortisol and catecholamines by contributing to maturational failures in other brain regions, such as the prefrontal cortex (Meaney, Brake, & Gratton, 2002). Heim, Mletzko et al. (2008) found that the neuropeptide oxytocin— important for social affiliation and support, attachment, trust, and management of stress and anxiety—was markedly decreased in the cerebrospinal fluid of women who had been exposed to childhood maltreatment, particularly those who had experienced emotional abuse. The more childhood traumas a person had experienced, and the longer their duration, the lower that person’s current level of oxytocin was likely to be and the higher her rating of current anxiety was likely to be.
Using data from the Adverse Childhood Experiences Study, an analysis by Anda, Felitti, Brown et al. (2006)confirmed that the risk of negative outcomes in affective, somatic, substance abuse, memory, sexual, and aggression-related domains increased as scores on a measure of eight ACEs increased. The researchers concluded that the association of study scores with these outcomes can serve as a theoretical parallel for the effects of cumulative exposure to stress on the developing brain and for the resulting impairment seen in multiple brain structures and functions.
The National Child Traumatic Stress Network (http://www.nctsn.org) offers information about childhood abuse, stress, and physiological responses of children who are traumatized. Materials are available for counselors, educators, parents, and caregivers. There are special sections on the needs of children in military families and on the impact of natural disasters on children’s mental health.
Subthreshold Trauma-Related Symptoms
Many trauma survivors experience symptoms that, although they do not meet the diagnostic criteria for ASD or PTSD, nonetheless limit their ability to function normally (e.g., regulate emotional states, maintain steady and rewarding social and family relationships, function competently at a job, maintain a steady pattern of abstinence in recovery). These symptoms can be transient, only arising in a specific context; intermittent, appearing for several weeks or months and then receding; or a part of the individual’s regular pattern of functioning (but not to the level of DSM-5 diagnostic criteria). Often, these patterns are termed “subthreshold” trauma symptoms. Like PTSD, the symptoms can be misdiagnosed as depression, anxiety, oran other mental illness. Likewise, clients who have experienced trauma may link some of their symptoms to their trauma and diagnose themselves as having PTSD, even though they do not meet all criteria for that disorder.
Combat Stress Reaction
A phenomenon unique to war, and one that counselors need to understand well, is combat stress reaction (CSR). CSR is an acute anxiety reaction occurring during or shortly after participating in military conflicts and wars as well as other operations within the war zone, known as the theater. CSR is not a formal diagnosis, nor is it included in the DSM-5 (APA, 2013a). It is similar to acute stress reaction, except that the precipitating event or events affect military personnel (and civilians exposed to the events) in an armed conflict situation. The terms “combat stress reaction” and “posttraumatic stress injury” are relatively new, and the intent of using these new terms is to call attention to the unique experiences of combat-related stress as well as to decrease the shame that can be associated with seeking behavioral health services for PTSD (for more information on veterans and combat stress reactions, see the planned TIP, Reintegration-Related Behavioral Health Issues for Veterans and Military Families; SAMHSA, planned f).
Case Illustration: Frank
Frank is a 36-year-old man who was severely beaten in a fight outside a bar. He had multiple injuries, including broken bones, a concussion, and a stab wound in his lower abdomen. He was hospitalized for 3.5 weeks and was unable to return to work, thus losing his job as a warehouse forklift operator. For several years, when faced with situations in which he perceived himself as helpless and overwhelmed, Frank reacted with violent anger that, to others, appeared grossly out of proportion to the situation. He has not had a drink in almost 3 years, but the bouts of anger persist and occur three to five times a year. They leave Frank feeling even more isolated from others and alienated from those who love him. He reports that he cannot watch certain television shows that depict violent anger; he has to stop watching when such scenes occur. He sometimes daydreams about getting revenge on the people who assaulted him.
Psychiatric and neurological evaluations do not reveal a cause for Frank’s anger attacks. Other than these symptoms, Frank has progressed well in his abstinence from alcohol. He attends a support group regularly, has acquired friends who are also abstinent, and has reconciled with his family of origin. His marriage is more stable, although the episodes of rage limit his wife’s willingness to commit fully to the relationship. In recounting the traumatic event in counseling, Frank acknowledges that he thought he was going to die as a result of the fight, especially when he realized he had been stabbed. As he described his experience, he began to become very anxious, and the counselor observed the rage beginning to appear.
After his initial evaluation, Frank was referred to an outpatient program that provided trauma-specific interventions to address his subthreshold trauma symptoms. With a combination of cognitive– behavioral counseling, EMDR, and anger management techniques, he saw a gradual decrease in symptoms when he recalled the assault. He started having more control of his anger when memories of the trauma emerged. Today, when feeling trapped, helpless, or overwhelmed, Frank has resources for coping and does not allow his anger to interfere with his marriage or other relationships.
Although stress mobilizes an individual’s physical and psychological resources to perform more effectively in combat, reactions to the stress may persist long after the actual danger has ended. As with other traumas, the nature of the event(s), the reactions of others, and the survivor’s psychological history and resources affect the likelihood and severity of CSR. With combat veterans, this translates to the number, intensity, and duration of threat factors; the social support of peers in the veterans’ unit; the emotional and cognitive resilience of the service members; and the quality of military leadership. CSR can vary from manageable and mild to debilitating and severe. Common, less severe symptoms of CSR include tension, hypervigilance, sleep problems, anger, and difficulty concentrating. If left untreated, CSR can lead to PTSD.
Common causes of CSR are events such as a direct attack from insurgent small arms fire or a military convoy being hit by an improvised explosive device, but combat stressors encompass a diverse array of traumatizing events, such as seeing grave injuries, watching others die, and making on-the-spot decisions in ambiguous conditions (e.g., having to determine whether a vehicle speeding toward a military checkpoint contains insurgents with explosives or a family traveling to another area). Such circumstances can lead to combat stress. Military personnel also serve in noncombat positions (e.g., healthcare and administrative roles), and personnel filling these supportive roles can be exposed to combat situations by proximity or by witnessing their results.
Advice to Counselors:Understanding the Nature of Combat StressSeveral sources of information are available to help counselors deepen their understanding of combat stress and postdeployment adjustment. Friedman (2006) explains how a prolonged combat-ready stance, which is adaptive in a war zone, becomes hypervigilance and overprotectiveness at home. He makes the point that the “mutual interdependence, trust, and affection” (p. 587) that are so necessarily a part of a combat unit are different from relationships with family members and colleagues in a civilian workplace. This complicates the transition to civilian life. Wheels Down: Adjusting to Life After Deployment(Moore & Kennedy, 2011) provides practical advice for military service members, including inactive or active duty personnel and veterans, in transitioning from the theater to home.
The following are just a few of the many resources and reports focused on combat-related psychological and stress issues:
Specific Trauma-Related Psychological Disorders
Part of the definition of trauma is that the individual responds with intense fear, helplessness, or horror. Beyond that, in both the short term and the long term, trauma comprises a range of reactions from normal (e.g., being unable to concentrate, feeling sad, having trouble sleeping) to warranting a diagnosis of a trauma-related mental disorder. Most people who experience trauma have no long-lasting disabling effects; their coping skills and the support of those around them are sufficient to help them overcome their difficulties, and their ability to function on a daily basis over time is unimpaired. For others, though, the symptoms of trauma are more severe and last longer. The most common diagnoses associated with trauma are PTSD and ASD, but trauma is also associated with the onset of other mental disorders—particularly substance use disorders, mood disorders, various anxiety disorders, and personality disorders. Trauma also typically exacerbates symptoms of preexisting disorders, and, for people who are predisposed to a mental disorder, trauma can precipitate its onset. Mental disorders can occur almost simultaneously with trauma exposure or manifest sometime thereafter.
Acute Stress Disorder
ASD represents a normal response to stress. Symptoms develop within 4 weeks of the trauma and can cause significant levels of distress. Most individuals who have acute stress reactions never develop further impairment or PTSD. Acute stress disorder is highly associated with the experience of one specific trauma rather than the experience of long-term exposure to chronic traumatic stress. Diagnostic criteria are presented in Exhibit 1.3-3.
Exhibit 1.3-3DSM-5 Diagnostic Criteria for ASD. Exposure to actual or threatened death, serious injury, or sexual violation in one (or more) of the following ways: Directly experiencing the traumatic event(s).
The primary presentation of an individual with an acute stress reaction is often that of someone who appears overwhelmed by the traumatic experience. The need to talk about the experience can lead the client to seem self-centered and unconcerned about the needs of others. He or she may need to describe, in repetitive detail, what happened, or may seem obsessed with trying to understand what happened in an effort to make sense of the experience. The client is often hypervigilant and avoids circumstances that are reminders of the trauma. For instance, someone who was in a serious car crash in heavy traffic can become anxious and avoid riding in a car or driving in traffic for a finite time afterward. Partial amnesia for the trauma often accompanies ASD, and the individual may repetitively question others to fill in details. People with ASD symptoms sometimes seek assurance from others that the event happened in the way they remember, that they are not “going crazy” or “losing it,” and that they could not have prevented the event. The next case illustration demonstrates the time-limited nature of ASD.
Differences between ASD and PTSDIt is important to consider the differences between ASD and PTSD when forming a diagnostic impression. The primary difference is the amount of time the symptoms have been present. ASD resolves 2 days to 4 weeks after an event, whereas PTSD continues beyond the 4-week period. The diagnosis of ASD can change to a diagnosis of PTSD if the condition is noted within the first 4 weeks after the event, but the symptoms persist past 4 weeks.
ASD also differs from PTSD in that the ASD diagnosis requires 9 out of 14 symptoms from five categories, including intrusion, negative mood, dissociation, avoidance, and arousal. These symptoms can occur at the time of the trauma or in the following month. Studies indicate that dissociation at the time of trauma is a good predictor of subsequent PTSD, so the inclusion of dissociative symptoms makes it more likely that those who develop ASD will later be diagnosed with PTSD (Bryant & Harvey, 2000). Additionally, ASD is a transient disorder, meaning that it is present in a person’s life for a relatively short time and then passes. In contrast, PTSD typically becomes a primary feature of an individual’s life. Over a lengthy period, PTSD can have profound effects on clients’ perceptions of safety, their sense of hope for the future, their relationships with others, their physical health, the appearance of psychiatric symptoms, and their patterns of substance use and abuse.
There are common symptoms between PTSD and ASD, and untreated ASD is a possible predisposing factor to PTSD, but it is unknown whether most people with ASD are likely to develop PTSD. There is some suggestion that, as with PTSD, ASD is more prevalent in women than in men (Bryant & Harvey, 2003). However, many people with PTSD do not have a diagnosis or recall a history of acute stress symptoms before seeking treatment for or receiving a diagnosis of PTSD.
SheilaTwo months ago, Sheila, a 55-year-old married woman, experienced a tornado in her home town. In the previous year, she had addressed a long-time marijuana use problem with the help of a treatment program and had been abstinent for about 6 months. Sheila was proud of her abstinence; it was something she wanted to continue. She regarded it as a mark of personal maturity; it improved her relationship with her husband, and their business had flourished as a result of her abstinence.
During the tornado, an employee reported that Sheila had become very agitated and had grabbed her assistant to drag him under a large table for cover. Sheila repeatedly yelled to her assistant that they were going to die. Following the storm, Sheila could not remember certain details of her behavior during the event. Furthermore, Sheila said that after the storm, she felt numb, as if she was floating out of her body and could watch herself from the outside. She stated that nothing felt real and it was all like a dream.
Following the tornado, Sheila experienced emotional numbness and detachment, even from people close to her, for about 2 weeks. The symptoms slowly decreased in intensity but still disrupted her life. Sheila reported experiencing disjointed or unconnected images and dreams of the storm that made no real sense to her. She was unwilling to return to the building where she had been during the storm, despite having maintained a business at this location for 15 years. In addition, she began smoking marijuana again because it helped her sleep. She had been very irritable and had uncharacteristic angry outbursts toward her husband, children, and other family members.
As a result of her earlier contact with a treatment program, Sheila returned to that program and engaged in psychoeducational, supportive counseling focused on her acute stress reaction. She regained abstinence from marijuana and returned shortly to a normal level of functioning. Her symptoms slowly diminished over a period of 3 weeks. With the help of her counselor, she came to understand the link between the trauma and her relapse, regained support from her spouse, and again felt in control of her life.
Effective interventions for ASD can significantly reduce the possibility of the subsequent development of PTSD. Effective treatment of ASD can also reduce the incidence of other co-occurring problems, such as depression, anxiety, dissociative disorders, and compulsive behaviors (Bryant & Harvey, 2000). Intervention for ASD also helps the individual develop coping skills that can effectively prevent the recurrence of ASD after later traumas.
Although predictive science for ASD and PTSD will continue to evolve, both disorders are associated with increased substance use and mental disorders and increased risk of relapse; therefore, effective screening for ASD and PTSD is important for all clients with these disorders. Individuals in early recovery—lacking well-practiced coping skills, lacking environmental supports, and already operating at high levels of anxiety—are particularly susceptible to ASD. Events that would not normally be disabling can produce symptoms of intense helplessness and fear, numbing and depersonalization, disabling anxiety, and an inability to handle normal life events.
Counselors should be able to recognize ASD and treat it rather than attributing the symptoms to a client’s lack of motivation to change, being “dry drunk” (for those in substance abuse recovery), or being manipulative.
Posttraumatic Stress Disorder
The trauma-related disorder that receives the greatest attention is PTSD; it is the most commonly diagnosed trauma-related disorder, and its symptoms can be quite debilitating over time. Nonetheless, it is important to remember that PTSD symptoms are represented in a number of other mental illnesses, including major depressive disorder (MDD), anxiety disorders, and psychotic disorders (Foa et al., 2006). The DSM-5 (APA, 2013a) identifies four symptom clusters for PTSD: presence of intrusion symptoms, persistent avoidance of stimuli, negative alterations in cognitions and mood, and marked alterations in arousal and reactivity. Individuals must have been exposed to actual or threatened death, serious injury, or sexual violence, and the symptoms must produce significant distress and impairment for more than 4 weeks (Exhibit 1.3-4).
Exhibit 1.3-4DSM-5 Diagnostic Criteria for PTSD. Note: The following criteria apply to adults, adolescents, and children older than 6 years. For children 6 years and younger, see the DSM-5 section titled “Posttraumatic Stress Disorder for Children 6 Years (more...)
Case Illustration: Michael
Michael is a 62-year-old Vietnam veteran. He is a divorced father of two children and has four grandchildren. Both of his parents were dependent on alcohol. He describes his childhood as isolated. His father physically and psychologically abused him (e.g., he was beaten with a switch until he had welts on his legs, back, and buttocks). By age 10, his parents regarded him as incorrigible and sent him to a reformatory school for 6 months. By age 15, he was using marijuana, hallucinogens, and alcohol and was frequently truant from school.
At age 19, Michael was drafted and sent to Vietnam, where he witnessed the deaths of six American military personnel. In one incident, the soldier he was next to in a bunker was shot. Michael felt helpless as he talked to this soldier, who was still conscious. In Vietnam, Michael increased his use of both alcohol and marijuana. On his return to the United States, Michael continued to drink and use marijuana. He reenlisted in the military for another tour of duty.
His life stabilized in his early 30s, as he had a steady job, supportive friends, and a relatively stable family life. However, he divorced in his late 30s. Shortly thereafter, he married a second time, but that marriage ended in divorce as well. He was chronically anxious and depressed and had insomnia and frequent nightmares. He periodically binged on alcohol. He complained of feeling empty, had suicidal ideation, and frequently stated that he lacked purpose in his life.
In the 1980s, Michael received several years of mental health treatment for dysthymia. He was hospitalized twice and received 1 year of outpatient psychotherapy. In the mid-1990s, he returned to outpatient treatment for similar symptoms and was diagnosed with PTSD and dysthymia. He no longer used marijuana and rarely drank. He reported that he didn’t like how alcohol or other substances made him feel anymore—he felt out of control with his emotions when he used them. Michael reported symptoms of hyperarousal, intrusion (intrusive memories, nightmares, and preoccupying thoughts about Vietnam), and avoidance (isolating himself from others and feeling “numb”). He reported that these symptoms seemed to relate to his childhood abuse and his experiences in Vietnam. In treatment, he expressed relief that he now understood the connection between his symptoms and his history.
Certain characteristics make people more susceptible to PTSD, including one’s unique personal vulnerabilities at the time of the traumatic exposure, the support (or lack of support) received from others at the time of the trauma and at the onset of trauma-related symptoms, and the way others in the person’s environment gauge the nature of the traumatic event (Brewin, Andrews, & Valentine, 2000).
People with PTSD often present varying clinical profiles and histories. They can experience symptoms that are activated by environmental triggers and then recede for a period of time. Some people with PTSD who show mostly psychiatric symptoms (particularly depression and anxiety) are misdiagnosed and go untreated for their primary condition. For many people, the trauma experience and diagnosis are obscured by co-occurring substance use disorder symptoms. The important feature of PTSD is that the disorder becomes an orienting feature of the individual’s life. How well the person can work, with whom he or she associates, the nature of close and intimate relationships, the ability to have fun and rejuvenate, and the way in which an individual goes about confronting and solving problems in life are all affected by the client’s trauma experiences and his or her struggle to recover.
Posttraumatic Stress Disorder:
Timing of symptomsAlthough symptoms of PTSD usually begin within 3 months of a trauma in adulthood, there can be a delay of months or even years before symptoms appear for some people. Some people may have minimal symptoms after a trauma but then experience a crisis later in life. Trauma symptoms can appear suddenly, even without conscious memory of the original trauma or without any overt provocation. Survivors of abuse in childhood can have a delayed response triggered by something that happens to them as adults. For example, seeing a movie about child abuse can trigger symptoms related to the trauma. Other triggers include returning to the scene of the trauma, being reminded of it in some other way, or noting the anniversary of an event. Likewise, combat veterans and survivors of community-wide disasters may seem to be coping well shortly after a trauma, only to have symptoms emerge later when their life situations seem to have stabilized. Some clients in substance abuse recovery only begin to experience trauma symptoms when they maintain abstinence for some time. As individuals decrease tension-reducing or self-medicating behaviors, trauma memories and symptoms can emerge.
Advice to Counselors: Helping Clients With Delayed Trauma ResponsesClients who are experiencing a delayed trauma response can benefit if you help them to:
Culture and Post-Traumatic Stress
Although research is limited across cultures, PTSD has been observed in Southeast Asian, South American, Middle Eastern, and Native American survivors (Osterman & de Jong, 2007; Wilson & Tang, 2007). As Stamm and Friedman (2000) point out, however, simply observing PTSD does not mean that it is the “best conceptual tool for characterizing post-traumatic distress among non-Western individuals” (p. 73). In fact, many trauma-related symptoms from other cultures do not fit the DSM-5 criteria. These include somatic and psychological symptoms and beliefs about the origins and nature of traumatic events. Moreover, religious and spiritual beliefs can affect how a survivor experiences a traumatic event and whether he or she reports the distress. For example, in societies where attitudes toward karma and the glorification of war veterans are predominant, it is harder for war veterans to come forward and disclose that they are emotionally overwhelmed or struggling. It would be perceived as inappropriate and possibly demoralizing to focus on the emotional distress that he or she still bears. (For a review of cultural competence in treating trauma, refer to Brown, 2008.)
Methods for measuring PTSD are also culturally specific. As part of a project begun in 1972, the World Health Organization (WHO) and the National Institutes of Health (NIH) embarked on a joint study to test the cross-cultural applicability of classification systems for various diagnoses. WHO and NIH identified apparently universal factors of psychological disorders and developed specific instruments to measure them. These instruments, the Composite International Diagnostic Interview and the Schedules for Clinical Assessment in Neuropsychiatry, include certain criteria from the DSM (Fourth Edition,
Diagnostic Criteria for PTSD.
The patient must have been exposed to a stressful event or situation (either brief or long-lasting) of exceptionally threatening or catastrophic nature, which would be likely to cause pervasive distress in almost anyone. (more...)
Complex trauma and complex traumatic stressWhen individuals experience multiple traumas, prolonged and repeated trauma during childhood, or repetitive trauma in the context of significant interpersonal relationships, their reactions to trauma have unique characteristics (Herman, 1992). This unique constellation of reactions, called complex traumatic stress, is not recognized diagnostically in the DSM-5, but theoretical discussions and research have begun to highlight the similarities and differences in symptoms of posttraumatic stress versus complex traumatic stress (Courtois & Ford, 2009). Often, the symptoms generated from complex trauma do not fully match PTSD criteria and exceed the severity of PTSD. Overall, literature reflects that PTSD criteria or subthreshold symptoms do not fully account for the persistent and more impairing clinical presentation of complex trauma. Even though current research in the study of traumatology is prolific, it is still in the early stages of development. The idea that there may be more diagnostic variations or subtypes is forthcoming, and this will likely pave the way for more client-matching interventions to better serve those individuals who have been repeatedly exposed to multiple, early childhood, and/or interpersonal traumas.
Other Trauma-Related and Co-Occurring Disorders
The symptoms of PTSD and other mental disorders overlap considerably; these disorders often coexist and in clude mood, anxiety, substance use, and personality disorders. Thus, it’s common for trauma survivors to be underdiagnosed or misdiagnosed. If they have not been identified as trauma survivors, their psychological distress is often not associated with previous trauma, and/or they are diagnosed with a disorder that marginally matches their presenting symptoms and psychological sequelae of trauma. The following sections present a brief overview of some mental disorders that can result from (or be worsened by) traumatic stress. PTSD is not the only diagnosis related to trauma nor its only psychological consequence; trauma can broadly influence mental and physical health in clients who already have behavioral health disorders.
The term “co-occurring disorders” refers to cases when a person has one or more mental disorders as well as one or more substance use disorders (including substance abuse). Co-occurring disorders are common among individuals who have a history of trauma and are seeking help.
Advice to Counselors:
Universal Screening and AssessmentOnly people specifically trained and licensed in mental health assessment should make diagnoses; trauma can result in complicated cases, and many symptoms can be present, whether or not they meet full diagnostic criteria for a specific disorder. Only a trained assessor can distinguish accurately among various symptoms and in the presence of co-occurring disorders. However, behavioral health professionals without specific assessment training can still serve an important role in screening for possible mental disorders using established screening tools (CSAT, 2005c; see also Chapter 4 of this TIP). In agencies and clinics, it is critical to provide such screenings systematically—for each client—as PTSD and other co-occurring disorders are typically under diagnosed or misdiagnosed.
People With Mental Disorders
MDD is the most common co-occurring disorder in people who have experienced trauma and are diagnosed with PTSD. A well-established causal relationship exists between stressful events and depression, and a prior history of MDD is predictive of PTSD after exposure to major trauma (Foa et al., 2006).
Many survivors with severe mental disorders function fairly well following trauma, including disasters, as long as essential services aren’t interrupted. For others, additional mental health supports may be necessary. For more information, see Responding to the Needs of People With Serious and Persistent Mental Illness in Times of Major Disaster (Center for Mental Health Services, 1996).
Co-occurrence is also linked with greater impairment and more severe symptoms of both disorders, and the person is less likely to experience remission of symptoms within 6 months.
Generalized anxiety, obsessive–compulsive, and other anxiety disorders are also associated with PTSD. PTSD may exacerbate anxiety disorder symptoms, but it is also likely that preexisting anxiety symptoms and anxiety disorders increase vulnerability to PTSD. Preexisting anxiety primes survivors for greater hyperarousal and distress. Other disorders, such as personality and somatization disorders, are also associated with trauma, but the history of trauma is often overlooked as a significant factor or necessary target in treatment.
The relationship between PTSD and other disorders is complex. More research is now examining the multiple potential pathways among PTSD and other disorders and how various sequences affect clinical presentation. TIP 42, Substance Abuse Treatment for Persons With Co-Occurring Disorders (CSAT, 2005c), is valuable in understanding the relationship of substance use to other mental disorders.
People With Substance Use Disorders
There is clearly a correlation between trauma (including individual, group, or mass trauma) and substance use as well as the presence of posttraumatic stress (and other trauma-related disorders) and substance use disorders. Alcohol and drug use can be, for some, an effort to manage traumatic stress and specific PTSD symptoms. Likewise, people with substance use disorders are at higher risk of developing PTSD than people who do not abuse substances. Counselors working with trauma survivors or clients who have substance use disorders have to be particularly aware of the possibility of the other disorder arising.
PTSD and the onset of substance use disordersKnowing whether substance abuse or PTSD came first informs whether a causal relationship exists, but learning this requires thorough assessment of clients and access to complete data on PTSD; substance use, abuse, and dependence; and the onset of each. Much current research focuses solely on the age of onset of substance use (not abuse), so determining causal relationships can be difficult. The relationship between PTSD and substance use disorders is thought to be bidirectional and cyclical: substance use increases trauma risk, and exposure to trauma escalates substance use to manage trauma-related symptoms. Three other causal pathways described by Chilcoat and Breslau’s seminal work (1998) further explain the relationship between PTSD and substance use disorders:
PTSD and Substance Abuse Treatment
PTSD can limit progress in substance abuse recovery, increase the potential for relapse, and complicate a client’s ability to achieve success in various life areas. Each disorder can mask or hide the symptoms of the other, and both need to be assessed and treated if the individual is to have a full recovery. There is a risk of misinterpreting trauma-related symptoms in substance abuse treatment settings. For example, avoidance symptoms in an individual with PTSD can be misinterpreted as lack of motivation or unwillingness to engage in substance abuse treatment; a counselor’s efforts to address substance abuse–related behaviors in early recovery can likewise provoke an exaggerated response from a trauma survivor who has profound traumatic experiences of being trapped and controlled.
PTSD and Substance Use Disorders:
Important Treatment Facts. PTSD is one of the most common co-occurring mental disorders found in clients in substance abuse treatment (CSAT, 2005c). People in treatment for PTSD tend to abuse a wide range of substances, (more...)
Case Illustration: Maria
Maria is a 31-year-old woman diagnosed with PTSD and alcohol dependence. From ages 8 to 12, she was sexually abused by an uncle. Maria never told anyone about the abuse for fear that she would not be believed. Her uncle remains close to the family, and Maria still sees him on certain holidays. When she came in for treatment, she described her emotions and thoughts as out of control. Maria often experiences intrusive memories of the abuse, which at times can be vivid and unrelenting. She cannot predict when the thoughts will come; efforts to distract herself from them do not always work. She often drinks in response to these thoughts or his presence, as she has found that alcohol can dull her level of distress. Maria also has difficulty falling asleep and is often awakened by nightmares. She does not usually remember the dreams, but she wakes up feeling frightened and alert and cannot go back to sleep.
Maria tries to avoid family gatherings but often feels pressured to go. Whenever she sees her uncle, she feels intense panic and anger but says she can usually “hold it together” if she avoids him. Afterward, however, she describes being overtaken by these feelings and unable to calm down. She also describes feeling physically ill and shaky. At these times, she often isolates herself, stays in her apartment, and drinks steadily for several days. Maria also reports distress pertaining to her relationship with her boyfriend. In the beginning of their relationship, she found him comforting and enjoyed his affection, but more recently, she has begun to feel anxious and unsettled around him. Maria tries to avoid sex with him, but she sometimes gives in for fear of losing the relationship. She finds it easier to have sex with him when she is drunk, but she often experiences strong feelings of dread and disgust reminiscent of her abuse. Maria feels guilty and confused about these feelings.
Sleep, PTSD, and substance Use
Many people have trouble getting to sleep and/or staying asleep after a traumatic event; consequently, some have a drink or two to help them fall asleep. Unfortunately, any initially helpful effects are likely not only to wane quickly, but also to incur a negative rebound effect. When someone uses a substance before going to bed, “sleep becomes lighter and more easily disrupted,” and rapid eye movement sleep (REM) “increases, with an associated increase in dreams and nightmares,” as the effects wear off.
People with alcohol dependence report multiple types of sleep disturbances over time, and it is not unusual for clients to report that they cannot fall asleep without first having a drink. Both REM and slow wave sleep are reduced in clients with alcohol dependence, which is also associated with an increase in the amount of time it takes before sleep occurs, decreased overall sleep time, more nightmares, and reduced sleep efficiency. Sleep during withdrawal is “frequently marked by severe insomnia and sleep fragmentation…a loss of restful sleep and feelings of daytime fatigue. Nightmares and vivid dreams are not uncommon”
Confounding changes in the biology of sleep that occur in clients with PTSD and substance use disorders often add to the problems of recovery. Sleep can fail to return to normal for months or even years after abstinence, and the persistence of sleep disruptions appears related to the likelihood of relapse. Of particular clinical importance is the vicious cycle that can also begin during “slips”; relapse initially improves sleep, but continued drinking leads to sleep disruption. This cycle of initial reduction of an unpleasant symptom, which only ends up exacerbating the process as a whole, can take place for clients with PTSD as well as for clients with substance use disorders. There are effective cognitive–behavioral therapies and nonaddictive pharmacological interventions for sleep difficulties.
FRAUD ON THE COURT
David R. Hague
Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have adopted it are abdicating their solemn responsibility as the gatekeeper to justice because innocent victims seeking to set aside judgments obtained by abusive discovery find themselves as a square-peg trying to fit into a round hole. The remedial and equitable nature of the fraud-on-the-court doctrine and the great public policy that it embodies militates against making that burden an impossible hurdle for victims of abusive discovery.
This Article suggests that courts depart from the heightened standard used to set aside judgments, particularly judgments obtained by abusive discovery. Specifically, this Article advances a four-step process to resolve the ultimate inquiry: whether the abusive conduct caused the court not to perform in the usual manner its impartial task of adjudging cases. Under this standard, courts will more readily find that abusive discovery that undermines the integrity of the judi- cial process or influences the decision of the court constitutes a fraud on the court.
TABLE OF CONTENTS
I. ABUSIVE DISCOVERY PRACTICE ..........................................................
A. Common Discovery Abuse ........................................................... 711
B. The Vulnerable Victims ................................................................ 717 1. The Pro Se Litigant................................................................ 717 2. The Attorney-Abandoned Litigant ......................................... 722
II. FRAUD ON THE COURT ......................................................................... 725
III. ABUSIVE DISCOVERY AS FRAUD ON THE COURT AND
REEVALUATING THE STANDARD ......................................................... 730
A. The Offender and His Duty .......................................................... 730
* Assistant Professor of Law, South Texas College of Law. I would like to thank my re- search assistant, Laura Thetford, for her help with this article.
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Evaluation of the Conduct ........................................................... 732 Consideration of the Victim’s Status (The Equitable Component).................................................................................. 735 Consideration of the Relief Being Sought.................................... 737 Illustration of the Four-Part Test ................................................ 739
1. The Offending Party and His Duty ........................................ 740
2. The Conduct........................................................................... 740
3. The Victim .............................................................................. 741
4. The Relief ............................................................................... 741
CONCLUSION ................................................................................................... 742 INTRODUCTION
There is an old adage that nice guys finish last. It is well documented that in litigation, this maxim oftentimes rings true. General William Tecumesh Sherman stated, “War is Hell!”1 Litigation, some think, is like war. Make your opponent’s life miserable, put them through hell, and you will eventually defeat your adversary. Why is hardball litigation so common? Is it because it works and frequently goes unpunished? As one scholar noted, “[t]hough perceptions differ, there seems to be some consensus that adversary excess is frequent, of- ten not by any standard justifiable as zealous representation, and that many lawyers will indeed cross ethical lines when they think they can get away with it, which, because of the weakness of monitoring agents, they usually do.”2
When this abusive practice—sometimes referred to by lawyers and judges as “Rambo-Lawyering”3—occurs during litigation, parties are equipped with several tools under the rules of civil procedure to thwart improper behavior and move the proceeding into civil territory. However, when attorney misconduct or abusive discovery tactics result in favorable judgments to the offending par- ties, the available remedies under the rules diminish substantially, and the party
1 William Tecumseh Sherman, WIKIQUOTE, http://en.wikiquote.org/wiki/William_Tecum seh_Sherman (last visited Jan. 5, 2016).
2 Robert W. Gordon, The Ethical Worlds of Large-Firm Litigators: Preliminary Observa- tions, 67 FORDHAM L. REV. 709, 736 (1998).
The term “Rambo Lawyering” has been discussed in several legal articles. See, e.g., Jean
M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 HOFSTRA L. REV. 561 (1996); Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 LOY. L.A. L. REV. 81 (1991); Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, A.B.A. J., Mar. 1, 1988, at 79. More- over, the District Court of Denver includes a “Rambo Lawyering” instruction to attorneys in
case management orders. The instruction reads as follows:
This is a CIVIL
. “Rambo Lawyering” will not be tolerated. Counsel will treat jurors,
parties, witnesses, me, my staff and each other with professionalism, courtesy and respect at all
times. This applies not only to the actual trial, but to all aspects of the case, including discovery
and motions practice, and includes what is written as well as what is said.
Rambo Lawyering, WEINBERGER LAW OFFICES,
(last visited Jan. 5, 2016).
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against whom the judgment was entered is now faced with a challenging legal hurdle. A rancher from Nevada knows this story all too well.
In 2007, Judith Adams sued Susan Fallini for the death of her son after he struck one of Ms. Fallini’s cows that was on a well-known highway in Neva- da.4 That stretch of highway is designated as “open range.”5 Nevada law pro- tects open-range ranchers from liability if vehicles strike their cattle.6 Thus, Ms. Fallini should have prevailed in the lawsuit because of this statutory defense, but that did not happen.7 Instead, Ms. Fallini’s lawyer abandoned her during the case and, among other things, failed to respond to plaintiff’s requests for ad- mission, which asked Ms. Fallini to admit that the accident did not occur on open range, even though it did, and even though plaintiff and her attorney knew it did.8 Because she failed to answer the request for admission, she was deemed to have admitted that the accident did not occur on open range, which obviated her complete defense under Nevada law.9 Eventually, Ms. Fallini’s “admission” led to a partial summary judgment in plaintiff’s favor and an award of damages in excess of $2.7 million.10
Was the type of conduct in the Fallini case just clever lawyering and profi- cient advocacy? Or did the attorney act uncivilly or unethically in obtaining the judgment and, consequently, violate rules of civil procedure and professional conduct? More importantly, if the attorney knew the accident occurred on open range and knew that the open-range defense provided a complete defense to Fallini as a matter of law, did that attorney perpetrate a “fraud on the court”11 when he obtained summary judgment based on Fallini’s deemed admission of a well-known false fact? The answer to this last question is puzzling.
While fraud on the court has been recognized for centuries as a basis for setting aside a final judgment, it has been used for several other purposes under the rules of civil procedure. Generally, fraud on the court is a fraud “directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents . . . . It is thus fraud where . . . the impartial functions of the court have been directly corrupted.”12 Interestingly, the term “fraud on the court” is
4 Mike Blasky, Conflicted Judge’s Decision Looms in Rancher Lawsuit, L.V. REV.-J., July 28, 2014, at B001; see also Complaint at 2–4, Estate of Adams v. Fallini, No. CV24539 (Nev. 5th Dist. Ct. Jan. 31, 2007).
5 Blasky, supra note 4.
6 Id.; see also NEV. REV. STAT. ANN. § 568.360(1) (West 2015) (providing that those who
own domestic animals do not have a duty to keep those animals off highways located on “open range” and are not liable for any damage or injury resulting from a collision between a motor vehicle and an animal on open range highways).
7 Blasky, supra note 4.
11 FED. R. CIV. P. 60(d)(3).
12 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (emphasis added) (citation omitted).
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only mentioned in Rule 60(d)(3) of the Federal Rules of Civil Procedure, yet courts have also used this doctrine to order dismissal or default under other rules where a litigant has stooped to the level of fraud on the court.13
Generally, if a party wants to utilize the fraud-on-the-court doctrine as a remedy under the rules of civil procedure, it must prove, by clear and convinc- ing evidence, intentional fraudulent conduct specifically directed at the court itself.14 Recent case law incorrectly suggests that this high standard for proving fraud on the court—which several courts agree is reserved only for the most egregious misconduct, such as a bribery of a judge or jury members—lacks any flexibility or equitable components.15 Indeed, this rigid approach seems to dis- regard entirely the victim’s status. It also creates a nearly impossible hurdle for innocent victims seeking to set aside judgments obtained by attorney miscon- duct. This flawed approach—particularly as courts apply the fraud-on-the-court doctrine to abusive discovery practices resulting in favorable judgments to the offending party—is inconsistent with the purpose of Rule 60(d)(3).
This Article suggests that courts depart from the heightened standard used to set aside judgments secured by a fraud on the court. Specifically, this Article advances a four-step process and recommends courts focus on one specific question when evaluating whether conduct rises to the level of fraud on the court: whether the conduct complained of caused the court not to perform in the usual manner in its impartial task of adjudging cases.
Part I of this Article discusses the various forms of abusive discovery that may lead to improper judgments, as well as some of the relevant rules of pro- fessional conduct and civil procedure. Part I also discusses the classes of vic- tims that are the most greatly impacted by abusive discovery. Part II introduces the concept of “fraud on the court” and discusses its meaning, history, and use in combating fraudulent litigation practice. Finally, Part III introduces the four- step process, which requires an examination of the following: (1) the offending party and his duties, (2) the conduct at issue and its effect on the judicial ma-
13 See, e.g., Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th Cir. 1991) (relying on Rule 11 where counsel made thirty-six changes on a deposition errata sheet after the client advised that the transcript was accurate and the testimony was correct); Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11–12 (1st Cir. 1985) (affirming district court’s entry of default judgment under court’s inherent powers in response to defendant’s abusive litigation practices); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (“[C]ourts have inherent power to dismiss an action when a party has willfully de- ceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.”); Eppes v. Snowden, 656 F. Supp. 1267, 1279 (E.D. Ky. 1986) (finding that where fraud is committed upon the court, the court’s power to dismiss is inherent “to protect the integrity of its proceedings”).
13 C.B.H. Resources, Inc. v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983) (dis- missing under Fed. R. Civ. P. 41(b) where party’s fraudulent scheme, including use of a bo- gus subpoena, was “totally at odds with the . . . notions of fairness central to our system of litigation”).
14 See, e.g., Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
15 See, e.g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
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chinery, (3) the victim’s status during the underlying litigation—i.e., whether the harmed party was in a position to recognize and combat the fraud at issue prejudgment—and (4) the relief sought. Part III also utilizes the four-step pro- cess to demonstrate that advancing falsehoods during the discovery process is a form of fraud on the court and that courts have equitable power to entertain a party’s action that seeks to set aside a judgment based upon fraud during the discovery process.
I. ABUSIVE DISCOVERY PRACTICE
A. Common Discovery Abuse
In a 2008 survey conducted by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the Ameri- can Legal System, 45 percent of those surveyed indicated they believed discov- ery is abused in “almost every case.”16 And a recent law review article led with this statement: “[o]ur discovery system is broken.”17 Unfortunately, while the system may be “broken” for some, it oftentimes works for others as it allows them to gain a tactical advantage over their opponents.
Abusive discovery includes, among other things, expensive and time- consuming “inundation . . . with tons of motions, interrogatories, document re- quests, deposition notices and other pre-trial disputes.”18 For example, in Adelman v. Brady, the Pennsylvania district court held that an interrogatory re- quest in a Title VII discrimination case was “extremely burdensome” where it required the IRS to examine personnel files for records of reprimand with no limitations, such as a date range or employed staff versus unemployed staff.19 The court found that this would “require the IRS to review thousands of files.”20 Accordingly, the request was determined to be unduly burdensome and an abuse of discovery procedures.21
Discovery abuse also includes trickery,22 harassment,23 threats,24 and inter- ference with depositions.25 In Prize Energy Resources, L.P. v. Cliff Hoskins,
16 Gordon W. Netzorg & Tobin D. Kern, Proportional Discovery: Making It the Norm, Ra- ther than the Exception, 87 DENV. U. L. REV. 513, 515 (2010) (quoting AM. COLL. OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., INTERIM REPORT & 2008 LITIGATION SURVEY OF THE FELLOWS OF THE AMERICAN COLLEGE OF TRIAL LAWYERS, B-1 to B-2 (2008)).
17 Netzorg & Kern, supra note 16, at 513.
18 Ronald L. Hicks, Jr., Strategies and Tips for Dealing with Dirty Litigation Tactics by Op-
posing Counsel, EMP. & LAB. L. 153, 159 (May 2013).
19 Adelman v. Brady, No. 89-4714, 1990 WL 39147, at *2 (E.D. Pa. Mar. 28, 1990).
21 See id.
22 Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 573 (Tex. App. 2011).
23 Id.; Adelman, 1990 WL 39147, at *2.
24 Prize Energy Res., 345 S.W.3d at 573; Florida Bar v. Ratiner, 46 So.3d 35, 37 (Fla. 2010)
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Inc., an attorney engaged in trickery when he “secur[ed] documents under false pretenses” during discovery.26 The attorney used a “false letterhead” to contact potential witnesses regarding a case and purported to be a “businessman” for an oil and gas company.27
In addition to his trickery, the same attorney also engaged in harassment to obtain discovery information.28 For example, he contacted the opposing party and “continually badgered him to produce documents that had already been provided,” even after the party obtained counsel.29 Additionally, he threatened the opposing party with “criminal penalties” if the party failed to comply.30
Attorneys frequently adopt similar behavior to interfere with depositions and thwart truth telling or disclosure of facts. In re Fletcher is illustrative.31 In Fletcher, an attorney threatened a police-officer witness with civil liability dur- ing his deposition as a means of intimidation by telling the officer that he had been added to an amended complaint alleging a Bivens action against the of- ficer.32
Aside from improper and unethical threats, other parties engage in Rambo- Litigation tactics to deter depositions.33 In Van Pilsum v. Iowa State University of Science and Technology, the court found that an attorney’s conduct was sanctionable when he “monopolize[d] 20% of his client’s deposition.”34 There, the attorney interrupted and objected to opposing counsel’s questioning so of- ten that between the “167 page deposition . . . only four segments [exist] where five or more pages occur without an interruption.”35 He also groundlessly at- tacked opposing counsel for his “ethics, litigation experience, and honesty.”36 For this behavior, the attorney was sanctioned and a protective order was is- sued.37
While the above clearly demonstrates abusive discovery tactics and mis- conduct, the instances likely did not rise to fraud on the court. Throw in dis- honest behavior by an officer of the court, however, and a strong argument be- gins to unfold that a fraud on the court may be in the works. Indeed, the most
25 In re Fletcher, 424 F.3d 783, 785 (8th Cir. 2005); Van Pilsum v. Iowa State Univ. of Sci. and Tech., 152 F.R.D. 179, 180–81 (S.D. Iowa 1993) (order on motion to compel); Hall v. Clifton Precision, 150 F.R.D. 525, 526 (E.D. Pa. 1993).
26 Prize Energy Res., 345 S.W.3d at 577.
27 Id. at 573.
31 See generally 424 F.3d 783 (8th Cir. 2005).
32 Id. at 790.
33 See, e.g., Van Pilsum v. Iowa State Univ. of Sci. and Tech., 152 F.R.D. 179, 181 (S.D.
Iowa 1993) (order on motion to compel).
35 Id. at 180.
37 Id. at 181.
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harmful form of discovery abuse is likely in the form of attorney deceit. No one can dispute “the discovery system is designed to facilitate truth-finding.”38 Yet, deception during discovery is all too common. As one scholar noted, “one rea- son for [attorney misconduct] is the tension inherent in the discovery pro- cess.”39 Absent information protected by the attorney-client privilege or work- product doctrine, the rules of civil procedure require full disclosure during dis- covery; yet providing an opposing party with information that might harm the client’s case seems to conflict with zealous advocacy.40 This quandary appears to be a true Catch-22 from which there is no escape. Thus, when these mutually conflicting situations arise, “the natural tendency for many lawyers is to resist the disclosure of client information”41 or consciously deceive the opposing par- ty in order to gain a tactical advantage.
In In re Shannon,42 for example, a lawyer—the subject of the complaint filed by the State Bar of Arizona—materially altered some of his client’s handwritten answers to interrogatories without providing a copy of the altered interrogatories to his client.43 After the client terminated the lawyer—but while the lawyer was still acting as the attorney of record—he submitted the altered interrogatories, along with the verification to the court for support of a motion for summary judgment.44 Fortunately, the lawyer’s motion was denied,45 and the court did not have to discuss whether the lawyer committed fraud upon the court. The opinion arose out of disciplinary proceedings, so the focus was whether the attorney violated certain rules of conduct and ethics, not whether a fraud on the court occurred. Further, despite the altered interrogatories submit- ted to the court, no judgment was ever obtained, and therefore, the parties were not seeking to set aside any judgment.46 If, however, a judgment was obtained in favor of the lawyer’s client based on the doctored answers to the interrogato- ries, would this be sufficient to set aside the judgment for fraud on the court pursuant to Rule 60(d)(3)? The answer is unclear.
In another similar case, In re Griffith,47 an attorney was disciplined for fail- ing to make critical disclosures during discovery and trial concerning his cli- ent’s medical records and treatment.48 In that case, the lawyer represented the estate of Morris Pina, Jr. in a lawsuit against the City of New Bedford for po-
38 W. Bradley Wendel, Rediscovering Discovery Ethics, 79 MARQ. L. REV. 895, 895 (1996). 39 Alex B. Long, Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages, 44 U.C. DAVIS L. REV. 413, 423 (2010).
42 See generally 876 P.2d 548 (Ariz. 1994), modified, 890 P.2d 602 (Ariz. 1994).
43 Id. at 552.
44 Id. at 556.
46 Id. at 577.
47 800 N.E.2d 259 (Mass. 2003).
48 Id. at 259.
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lice misconduct.49 New Bedford police officers arrested Pina and, while in cus- tody, he died.50 Before commencing the trial, however, the lawyer for the estate learned that Pina was being treated for medical problems and had tested posi- tive for human immunodeficiency virus (HIV).51 And when specifically asked through interrogatories whether Pina had ever been treated or admitted to a hospital prior to the alleged incident, the estate responded that it had no knowledge of any treatment or admissions.52 These responses were false. The estate was also served with a request for documents, including a request to pro- duce all medical records with any doctor or hospital rendering treatment on be- half of Pina for a period of five years prior to Pina’s death.53 The lawyer never produced the documents he had in his possession that would have been respon- sive to this request.54 Furthermore, the attorney retained an expert economist to testify on damages arising from Pina’s alleged wrongful death.55 However, the lawyer never told the expert about the HIV.56 Accordingly, the expert calculat- ed the decedent’s total loss of pleasure of life exceeded two million dollars.57 At trial, the estate was awarded damages in the amount of $435,000.58
But, during trial the defendant learned of the HIV and opposing counsel’s cal- culated efforts to conceal this material information.59 Following trial, the par- ties settled for $555,000 and defense counsel sought sanctions against the law- yer, alleging that he had withheld this critical information during discovery and trial.60 After a hearing, the judge entered an order in which he found that the lawyer had “engaged in a pattern of activity to hide [Pina’s HIV status] from the defendants and initially . . . from the court, and had engaged in deliberate misconduct in connection with [plaintiff’s] responses to the defendants’ inter- rogatories.”61 Again, the court was not forced to analyze Rule 60(d)(3) because the attorneys uncovered the deceit before a judgment was rendered. However, had plaintiff prevailed at trial, would the defendant have a case to set aside the judgment for fraud upon the court? Did the plaintiff intentionally aim the false responses directly at the court? Could the failure disclose relevant information cause the court not to perform in the usual manner its impartial task of adjudg- ing cases? Or was this just ordinary fraud between the parties?
at 260. at 261.
at 260, 262.
at 262 (internal quotation marks omitted).
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In another case, In re Estrada,62 the lawyer—who was representing a pharmacy in a personal injury action resulting from a pharmacist accidently filling a child’s prescription with methadone—misled the court by falsely deny- ing the plaintiff’s request for admission of fact.63 The lawyer’s indiscretion was not just a minor oversight, but rather a critical omission that could make or break the plaintiff’s case against the pharmacy.64 Indeed, the case resulted in a mistrial after it became apparent that a prescription introduced into evidence, intended to prove that the pharmacy could account for all its dispensed metha- done, was a forgery.65 Fraud on the court?
Unfortunately, the foregoing represents just a small number of cases where deceit and fraud are present. One would hope that the majority of attorneys un- derstand and acknowledge that zealous representation—even aggressive repre- sentation—can always be accomplished through playing by the rules. Indeed, despite the tension of litigation, lawyers are always responsible for maintaining the ethical standards of the profession. These standards and ethical obligations are governed by a combination of sources,66 which include the Federal Rules of Civil Procedure, state rules, and laws governing attorney conduct.67 Violating or otherwise ignoring these discovery-based rules have broad implications. As one court noted,
A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particulariz- ing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so com- monplace is . . . hindering the adjudication process, and . . . violating his or her duty of loyalty to the “procedures and institutions” the adversary system is in- tended to serve.68
Notwithstanding the procedural and ethical components of these rules, there will always be lawyers and parties that simply disregard or sidestep the rules to gain an advantage. And it does not matter whether the rule falls within a “gray area” of law or is replete with obvious warnings and penalties designed to deter the offending party from abusive practice.
Consider, for example, Rule 26(g) of the Federal Rules of Civil Procedure. This rule—“[o]ne of the most important, but apparently least understood or fol-
62 143 P.3d 731 (N.M. 2006).
63 Id. at 735.
66 See Debra Lyn Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. KY. L. REV. 449, 450
(2009). 67 Id.
68 Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 362 (D. Md. 2008) (citation omitted).
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lowed, of the discovery rules”69—clearly and expressly requires that “every discovery request, response, or objection be signed by at least one attorney of record, . . . or by the [client], if unrepresented.”70 The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a rea- sonable inquiry,” the discovery is complete and correct, and that the discovery request, response, or objection is
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.71
If a lawyer or party makes the certification required by Rule 26(g) that violates the rule, the court “must” impose an appropriate sanction, which may include an order to pay reasonable expenses and attorney’s fees caused by the viola- tion.72 But do fraudulent responses to written discovery, for example, expose a party to default or dismissal for committing fraud on the court?
Rule 26 is clear on its face and in its purpose: deter abusive discovery and sanction offending parties for misconduct in discovery. One would think that the transparencies of the rule and the obvious consequences for compliance would have a strong deterrent effect, yet that is not always the case. In addition to Rule 26, other remedies exist to prevent abusive discovery, including sanc-
69 Id. at 357.
70 FED. R. CIV. P. 26(g).
72 Id. The Advisory Committee’s Notes to Rule 26(g) provide further guidance:
Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certifica- tion requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. . . .
If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which paral- lels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discov- ery request, response, or objection. . . .
Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legiti- mate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.
The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the at- torney and the conclusions drawn therefrom are reasonable under the circumstances. It is an ob- jective standard similar to the one imposed by Rule 11.
FED. R. CIV. P. 26(g) advisory committee’s notes to the 1983 amendments (emphasis added) (citations omitted).
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tions,73 discovery statutes,74 and misconduct-reporting boards.75 These rules and remedies share a few common shortfalls. First, they are written and used to deter abusive conduct during the litigation. However, these rules have little utility post-judgment (i.e., if abusive discovery leads to an improper judgment, these rules have minimal value or impact). Second, while these rules may com- bat abuse that otherwise might lead to improper judgments, the rules are plainly more effective in the hands of competent attorneys who understand how they operate and how they can potentially deter attorney misconduct. Yet, when vic- tims of abusive discovery are representing themselves pro se, or have been abandoned by counsel, the rules serve a very limited function, if any, in these victims’ hands.
B. The Vulnerable Victims
Abusive discovery practice comes in all shapes and sizes. From the multi- billion-dollar case with hundreds of defendants to the ten-thousand dollar breach of contract case, one is likely to find attorneys engaging in unsound liti- gation tactics. Any party on the receiving end of this abuse is a victim and has standing to seek redress from the court. However, abusive discovery’s impact seems to be far greater for two classes of victims: the pro se litigant and the at- torney-abandoned litigant. Should these victims receive special treatment when faced with judgments obtained by fraud? Is their status relevant to the court’s analysis under Rule 60(d)(3)—i.e., should the courts be more flexible and will- ing to set aside judgments in cases where the victim was not adequately repre- sented by counsel when the fraud occurred?
1. The Pro Se Litigant
The saying goes, “one who is his own lawyer has a fool for a client.”76 In Powell v. Alabama,77 the Supreme Court wrote,
Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to pre- pare his defense, even though he have a perfect one. He requires the guiding
73 See, e.g., In re Lucas, 789 N.W.2d 73, 78 (N.D. 2010) (suspending an attorney for mis- conduct). Sanctions can also include paying opposing party’s attorney’s fees.
74 See, e.g., FED. R. CIV. P. 26(b)(2)(C) (providing that a court “must limit the frequency or extent of discovery”); FED. R. CIV. P. 33(a)(1) (providing that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written inter- rogatories”); FED. R. CIV. P. 37(a)(1) (allowing a party to compel discovery); FED. R. CIV. P. 45(d)(3)(A) (authorizing a district court to quash a subpoena if it subjects a person, including a non-party, to an undue burden, fails to allow for a reasonable time for compliance, or re- quires disclosure of confidential information).
75 Outback Steakhouse of Florida., Inc. v. Markley, 856 N.E.2d 65, 85 (Ind. 2006) (disci- plining by ethics committee for false statements); People v. Scruggs, 52 P.3d 237, 241 (Colo. 2002) (holding that disbarment was an appropriate remedy for abuse).
76 Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting).
77 Powell v. Alabama, 287 U.S. 45 (1932).
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hand of counsel at every step in the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.78
So why would anyone choose to appear pro se? The likely response is that they have no choice. They are victims of a legal market failure. On the demand side, most Americans struggle to find a lawyer to provide them with legal ad- vice. On the supply side, law school graduates and other lawyers are either un- employed or underemployed.79 Chief Justice Warren Burger predicted thirty- five years ago that America was turning into “a society overrun by hordes of lawyers, hungry as locusts.”80 But what are these lawyers craving? Pro bono work? Serving the underprivileged? Not likely. Lawyers, generally, provide for the legal needs of those individuals and businesses that can deliver a secure re- tainer and pay a considerable amount of money. However, there are only so many low-risk, high-paying clients around. As a result, scores of the American population are forced to represent themselves because lawyers are either not willing to take on the risk of not being paid or not willing to devote a signifi- cant amount of time to serving the underprivileged.
This “pro se” problem was recently highlighted in states where foreclo- sures require a judge’s approval. “[H]omeowners in default have traditionally surrendered their homes without ever coming to court to defend themselves.”81 That inaction, however, has begun to recede.82 Indeed, “[w]hile many foreclo- sures are still unopposed, courts are seeing a sharp rise in cases where defend- ants show up representing themselves.”83 Some courts “welcome the influx of parties defending themselves.”84 Louis McDonald, the chief judge for New Mexico’s Thirteenth Judicial District, acknowledged that “[s]ome of [the pro se defendants] have fairly legitimate defenses.”85 But the law grows more com- plex as cases progress through litigation, and several of the pro se defendants are in over their heads and unable to combat abusive practice.86 These parties are susceptible to the problems highlighted above. “Admit you signed the loan documents.” “Admit you are in default.” “Admit we hold the deed of trust against your home and we are the entitled beneficiaries.” If true, these requests to admit, alone, could establish a lender’s prima facie foreclosure case. But what if the plaintiff submitting these requests was not the beneficiary? What if they were not in possession of the promissory note and the deed of trust? That
78 Id. at 69.
79 Michael S. Hooker & Guy P. McConnell, Too Many Lawyers—Is It Really a Problem?,
FED. LAW., Sept. 2014, at 62, 63–64.
80 Warren E. Burger, Our Vicious Legal Spiral, 16 JUDGES’ J. 22, 49 (1977).
81 David Streitfeld, For the Foreclosed, Themselves, N.Y. TIMES, Feb. 3, 2011, at B1.
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alone would be sufficient to prevent the lender from foreclosing. If the requests went unanswered, they would be deemed admitted.87 By asking the homeown- ers to admit known falsehoods and then injecting those falsehoods into the court system to support a motion for summary judgment, would the plaintiff seeking to foreclose be committing fraud on the court?
New York has experienced similar issues. Before 2008, “about 90 percent of foreclosure defendants never appeared before a judge.”88 However, with new mandatory settlement laws in place, “more than three-quarters of defendants now show up to court, about 32,000 in the first [ten months of 2010].”89 How- ever, only about 12,000 had a lawyer.90 The other 20,000 were in charge of their own fate. “We’re getting the people in here, getting them to the table with the bank, but I don’t know what happens to these cases long term,” said Paul Lewis, chief of staff to New York’s chief administrative judge.91 “Many of the homeowners would do much better with an attorney.”92
Unlike criminal proceedings, the right to counsel is not absolute in civil cases.93 This further strengthens the argument that most pro se appearances by civil litigants are not voluntary, but instead result because they simply cannot afford attorneys to represent them. This is especially true when one considers the potential costs involved with discovery alone. Indeed, “[p]erhaps the great- est driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs.”94 Unfortunately, “in far too many cases, economics—and not the merits—govern discovery decisions.”95 The re- sult is that “[l]itigants of moderate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often be- comes a war of attrition for all parties.”96
If the right to counsel were absolute in civil cases, pro se appearances would decrease significantly, if not entirely. For several justifiable reasons, however, this is not how the American legal system functions. Because of this, some courts accord pro se litigants a certain degree of leniency, particularly
87 See, e.g., FED. R. CIV. P. 36(a)(3) (stating that “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its at- torney”).
88 Streitfeld, supra note 83.
93 Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18, 26–27 (1981).
94 S. REP. NO. 101-650, at 20 (1990), as reprinted in 1990 U.S.C.C.A.N. 5763, 6823.
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720 NEVADA LAW JOURNAL [Vol. 16:707 with respect to procedural rules.97 Notwithstanding, extending too much leni-
ency undermines the system. As one court recently explained,
[T]he Court may not be co-opted by a pro se litigant to perform tasks normally carried out by hired counsel. Providing assistance or extending too much proce- dural leniency to a pro se litigant risks undermining the impartial role of the judge in the adversary system. Moreover, it has never been suggested that pro- cedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. Pro se litigants must adhere to procedural rules as would parties assisted by counsel. This includes procedural requirements regarding the provision of adequate factual averments to sustain legal claims.98
In other words, claims of discovery abuse may be null, even if there is some trickery or omission from the opposing counsel because procedural rules tend to apply uniformly to pro se and represented parties, regardless of the une- qual knowledge of the law.99 For example, in Tall v. Alaska Airlines, a Ken- tucky court of appeals held that a pro se defendant’s belief that he had entered a settlement agreement with the plaintiff’s counsel during discovery did not pro- vide a remedy when he failed to submit a denial in a request for admissions.100 The defendant defaulted on a credit agreement and responded to a complaint filed by the bank by “denying that he owed any debt.”101 He stated that he dis- cussed a settlement amount with the bank’s attorney that would allow him to bring his account current; this conversation allegedly occurred prior to suit.102 A review of the case indicates there was a misunderstanding as to the agree- ment, and instead of a monthly payment, the defendant rendered the total “prin- cipal amount,” minus “interest owed, costs, or fees.”103
During discovery, the opposing counsel requested admissions and the de- fendant failed to answer, resulting in his admission that he still owed the debt.104 The defendant argued that counsel had “tak[en] advantage of [his] ig- norance of the law” in violation of a state statute that required parties to make a “good faith effort” to resolve discovery disputes.105 Yet, the court held that be- cause the “unanswered admission requests are deemed admitted . . . there is no
97 See, e.g., GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (stat- ing that “[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education”).
98 United States v. Gregg, No. 12-322, 2013 WL 6498249, at *4 (W.D. Pa. Dec. 11, 2013) (internal quotations and citations omitted).
99 Paselk v. Rabun, 293 S.W.3d 600, 611 (Tex. Ct. App. 2009) (petition denied).
100 Tall v. Alaska Airlines, No. 2009-CA-002256-MR, 2011 WL 831918, at *1–*2 (Ky. Ct. App. Mar. 11, 2011) (alleging Credit Union took advantage of Tall’s pro se representation during discovery, in violation of Jefferson County Local Rule 4).
101 Id. at *1.
102 Id. at *3.
103 Id. at *4.
104 Id. at *3.
105 Id. at *4 (citing Local Rule 402).
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foreseeable reason for a party to seek to compel such admissions.”106 There- fore, an opposing attorney does not have a duty to warn another party, even pro se, to follow discovery procedures.107
This Article does not necessarily advocate for extra-judicial assistance to pro se litigants.108 Instead, it highlights a growing problem: pro se litigants are becoming more plentiful and they lack legal skill and knowledge to oppose ag- gressive counsel. As one scholar noted,
Our civil process before and during trial, in state and federal courts, is a master- piece of complexity that dazzles in its details—in discovery, in the use of ex- perts, in the preparation and presentation of evidence, in the selection of the fact- finder and the choreography of the trial. But few litigants or courts can afford it.109
When a party opponent senses this weakness, it will seize its prey. In one article discussing foreclosures and pro se parties, it was noted that lawyers “pretty much bank on people not showing up, or not having an attorney to rep- resent them.”110 Consequently, in addition to facing the aggressive lawyer, the misguided and naïve litigant is likely to encounter an opposing party who re- fuses to play by the rules because it knows (1) the chances of being caught, sanctioned, or challenged are relatively small and (2) the probability of prevail- ing in the lawsuit is significantly greater if the rules are not observed. The skilled lawyer, knowing that his opponent is not qualified, is thus encouraged to engage in improper or unsound litigation tactics.111 During the pending litiga- tion, there are several remedies available to thwart abusive litigation practice. Yet, when abusive practice actually leads to a judgment in favor of the perpe-
108 Some courts actually do accord “special attention” to pro se litigants faced with proce-
dural complexities, such as summary judgment motions. Ham v. Smith, 653 F.2d 628, 629– 30 (D.C. Cir. 1981). Indeed, some courts agree that a litigant is entitled to be warned that when she is confronted by a summary judgment motion, she must obtain evidentiary material to avoid the entry of judgment against her. See, e.g., Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam); Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (per curiam).
109 Kent D. Syverud, ADR and the Decline of the American Civil Jury, 44 UCLA L. REV. 1935, 1942 (1997).
110 Kat Aaron, Foreclosure Crisis + Legal Aid Cuts = @#$%!, MOTHER JONES (Feb. 14, 2011, 7:00 AM), http://www.motherjones.com/politics/2011/02/legal-services-corporation- recession.
111 See Scott L. Garland, Avoiding Goliath’s Fate: Defeating a Pro Se Litigant, 24 LITIG. 45, 46 (1998) (commenting that in his experience as a clerk at a federal district court, “[m]any lawyers seem to think that litigating against a pro se party gives the lawyer license to litigate like a pro se party, by omitting legal citations, making conclusory statements, forgoing affi- davits and evidence in favor of ipse dixit, and failing to evaluate the opponent’s argu- ments.”); see also Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Hay- stacks, 62 BROOK. L. REV. 519, 520 (1996) (concluding that state attorney generals’ experience with frivolous pro se prisoner litigation has led them to exaggerate or misstate the merit of certain pro se allegations).
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722 NEVADA LAW JOURNAL [Vol. 16:707 trator, the pro se litigant is left with very few procedural arrows in his quiver to
combat the wrongdoing.
2. The Attorney-Abandoned Litigant
Pro se litigants are not the only victims abused by improper gamesmanship. The Fallini case introduced in the Introduction represents the classic example of attorney abandonment.
When Fallini was sued, she retained an attorney to represent and defend her.112 He filed an answer on Fallini’s behalf. At the time of the lawsuit, Fallini was over sixty years of age and had no legal skills or knowledge of the proce- dures involved in a lawsuit.113 She relied on and trusted her attorney to resolve the legal dispute quickly, efficiently and competently. In June 2007, shortly af- ter her attorney filed Fallini’s answer, he represented to her that the case was over and that she had prevailed because of her statutory open-range defense.114 Unbeknownst to Fallini, however, the case was not over. In fact, litigation con- tinued by way of discovery requests and motion practice by counsel for the plaintiff, but Fallini’s attorney failed to answer various requests for admission, oppose a motion for summary judgment based on those unanswered requests for admissions, appear for a hearing on the motion for summary judgment, or respond to other discovery requests.115
Fallini “did not receive direct notice of the foregoing neglect of her attor- ney.”116 Nonetheless, the court entered partial summary judgment in which it imposed liability on Fallini for the accident.117 In particular, Fallini was deemed to have admitted that the accident did not occur on open range—which obviat- ed her complete defense to the action pursuant to NRS § 568.360(1)—even though she had already asserted that defense in her answer.118
The court later held her attorney in contempt of court and repeatedly im- posed significant sanctions for his failure to appear and comply with its orders in the case.119 “But despite these court-imposed sanctions, Fallini was still not informed of the status of her case, nor was she informed that her attorney was being sanctioned for his deliberate failure to represent her.”120 It was not until June 2010—three years after Fallini’s attorney told her that the case was over
112 Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Aug. 6, 2014), at 2 (court order).
113 Motion for Relief from Judgment Pursuant to NRCP 60(b) at 5, Estate of Adams, No. CV 24539.
114 Id. at 21.
115 Id. at 20–21.
116 Id. at 6.
117 Estate of Adams, No. CV 24539, at 3.
119 Id. at 3–4.
120 Motion for Relief From Judgment Pursuant to NRCP 60(b) at 6, Estate of Adams, No.
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and that she had prevailed—that Fallini learned the true status of her case—that a judgment exceeding $2.7 million had been entered against her despite her ironclad statutory defense.121
In situations where attorney misconduct like that discussed above leads to a favorable judgment, Rule 60(d)(3) should serve as a wide-open door that vic- tims can enter unhindered. One of the major problems associated with attorney abandonment is the difficultly in reversing the wrongdoing, especially if the party is faced with an adverse judgment. Abandonment has been defined in very strict terms and requires a high bar before a party may gain relief from judgment due to its own counsel’s inadequacy.122 Though not a discovery- abuse case, in Maples v. Thomas,123 the United States Supreme Court recently held that a “habeas prisoner’s default” would be excused when the filing dead- line was missed due to his attorneys’ abandonment because “a client cannot be charged with the acts or omissions of an attorney who has abandoned him.”124 However, this is a high bar, requiring “extraordinary circumstances beyond . . . [a party’s] control,” such as “evidence [of] counsel’s near-total failure to com- municate with, [or respond to], petitioner.”125 A procedural error, such as miss- ing a filing deadline, does not fit the mold.126 Abandonment requires something more akin to the injured party in Maple where the attorneys not only failed to file the petition, but also, among other things, (1) took on new employment, (2) failed to notify their client, (3) failed to withdraw, (4) allowed ineffective coun- sel to take over, and (5) permitted clerical issues to occur at their firm that de- prived the client of important communications.127 Furthermore, the “attorney abandonment” addressed by the Supreme Court occurred in a criminal proce- dure context, not in a civil suit.128
Accordingly, without facts similar to this extreme example of abandonment in a criminal case, courts are left to their discretion to render judgment against a party due to his own attorney’s misconduct during discovery. Though failing to communicate with a client129 and failing to file orders or respond to re-
121 Id. at 6–7.
122 This is a narrow exception from the normal discretion courts have to impose sanctions
for discovery violations.
123 132 S. Ct. 912 (2012).
124 Id. at 924.
125 Id. at 923–24.
126 Id. at 921. Yet, it should be noted that courts still have the discretion to sanction for a
127 Id. at 928 (Alito, J., concurring).
128 See generally id.
129 See, e.g., Comerica Bank v. Esposito, 215 Fed. App’x 506, 508 (7th Cir. 2007) (stating
that failure to communicate with a client is not generally enough for “postjudgment relief”); Cohen v. Brandywine Raceway Ass’n, 238 A.2d 320, 325 (Del. Super. Ct. 1968) (stating that even if the attorney failed to follow up after delivering the interrogatories, it was not “excusable neglect” when answers were not filed on time).
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quests130 are common, these actions generally do not afford relief, even when it is the fault of the represented party’s counsel.
For example, in Platinum Rehab, Ltd. v. Platinum Home Health Care Ser- vices, an Ohio district court found that abandonment arising to “extraordinary circumstances” did not exist when the represented party could not show she was free from fault after her attorney failed to meet several deadlines, resulting in judgment against her.131 The defendant alleged that her attorney was “grossly negligent” and “abandoned representation” when he failed to answer a com- plaint, respond to discovery requests, and failed to appear at a hearing.132 Yet, the court found that she was not abandoned for three reasons.133 First, she was present and aware of the filing dates for the answer and discovery requests.134 Second, there was no evidence except her own statement that she provided the necessary information for the discovery requests.135 Third, there was no evi- dence that she made an effort “to ensure” her attorney complied with the dead- lines.136 For these reasons, the court upheld the judgment against the defendant, even though her own counsel was negligent.137 But what if the complaint or discovery requests that went unanswered were peppered with inaccurate, mis- leading, or fraudulent statements that allowed the plaintiff to obtain a judgment against the attorney-abandoned defendant? What would be the defendant’s remedy? How could that judgment be set aside? Even if she was not free from fault because she was aware of the filing dates, would that somehow offset any fraud that occurred during discovery or mitigate the harm?
In another case, a Michigan court of appeals held that “effective abandon- ment” was not a legal term and denied reversing judgment against the plaintiff that resulted from the plaintiff’s attorney’s failure to comply with discovery.138
130 See, e.g., Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (refusing to over- turn dismissal for attorney’s failure to follow court orders and procedures); Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986) (finding that relief for judgment was not warranted for attorney’s failure to comply with discovery requests); Corchado v. Puerto Rico Marine Mgmt., Inc., 665 F.2d 410, 413 (1st Cir. 1981) (holding that dismissal was appropri- ate where counsel repeated failed to respond to discovery requests); Weinreb v. TR Devel- opers, LLC, 943 N.E.2d 856, 858 (Ind. Ct. App. 2011) (holding that relief from summary judgment would not be granted where the defendant’s attorney failed to argue a defense that was “known or knowable” at the time judgment was granted); Moore v. Taylor Sales, Inc., 953 S.W.2d 889, 894 (Ark. Ct. App. 1997) (holding that default judgment would not be set aside where the attorney failed to file “timely answers” even though his client delivered the attorney the answers and the attorney assured the client he would file a response).
131 Platinum Rehab., Ltd. v. Platinum Home Health Care Servs., LLC, No. 1:11CV1021, 2012 WL 4461502, at *4 (N.D. Ohio Sept. 25, 2012).
132 Id. at *1.
133 Id. at *1, *4.
134 Id. at *4.
137 Id. at *5.
138 Beck v. Cass Cty. Rd. Comm’n, No. 305246, 2012 WL 4465166, at *2 (Mich. Ct. App.
Sept. 27, 2012).
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In Beck v. Cass County Road Commission, the trial court dismissed the plain- tiff’s complaint as a “sanction for the willful failure to comply with an order to compel discovery.”139 In denying the plaintiff’s motion for relief from judg- ment, the court determined that relief was unwarranted because an attorney’s professional negligence is attributable to the client and does not ordinarily con- stitute grounds for setting aside judgments.140 Even though the plaintiffs claimed that they were effectively abandoned by this non-assistance, the court found that there was no legal basis for this claim.141 Thus, the attorney’s lack of vigor and lack of compliance was insufficient to allow relief from judgment.142
As illustrated in the Fallini case, a false admission, which stems from an attorney failing to respond adequately to a request for admission, may lead to a dangerous result: an improper judgment unsupported by any law.143 While a court may have no problem withdrawing a false admission in a discovery doc- ument while discovery is ongoing,144 there is little guidance to show how a court would consider a false admission after judgment has been entered.145 A party who is represented and is subjected to judgment due to his own party’s misconduct has very limited remedies. For states that impute liability, Federal Rules of Civil Procedure Rule 60146—or state-law equivalents—appear to be the only source of relief.147
II. FRAUD ON THE COURT
Rule 60(d) of the Federal Rules of Civil Procedure, which provides the grounds for relief from a final judgment, order, or proceeding, states that the rule “does not limit a court’s power to . . . set aside a judgment for fraud on the court.”148
What is “fraud on the court” within the meaning of Rule 60? Are there cer- tain time limitations associated with this rule for parties seeking grounds for
139 Id. at *1.
140 Id. at *2.
142 Id. at *3.
143 Blasky, supra note 4.
144 See Brankovic v. Snyder, 578 S.E.2d 203, 207 (Ga. App. 2003) (stating that “[a] party
has no right to a judgment based on false ‘admissions’ ” due to a late response).
145 Turner v. Alta Mira Vill. Homeowners Ass’n, Inc., No. 2 CA-CV 2013-0151, 2014 WL 7344049, at *4 (Ariz. Ct. App. Dec. 24, 2014) (refusing to award sanctions where false ad- mission resulted from “erroneously admit[ing] the truth.”). Compare this to the somewhat analogous treatment for the failure to assert an affirmative defense (both require an affirma- tive statement). See, e.g., Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 665–66 (9th Cir. 1997) (holding that failure to plead an affirmative defense does not afford relief from judgment due to an attorney’s “ ‘ignorance nor carelessness’ ”) (quoting Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992)).
146 See FED. R. CIV. P. 60.
147 Las Vegas Land & Dev. Co., LLC v. Wilkie Way, LLC, 219 Cal. Rptr. 3d 391, 392 (Ct.
App. 2013); Beck, 2012 WL 4465166, at *2. 148 FED. R. CIV. P. 60(d)(3).
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relief from a final judgment? Does “fraud on the court” require the same stand- ard of proof for common law fraud? Was that intent of the rule’s framers?
Rule 60(d)(3) was added in 1948.149 The framers’ intention may best be in- dicated in the Advisory’s Committee’s discussion of the rule:
The amendment . . . mak[es] fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a ground for relief by independ- ent action insofar as established doctrine permits. And the rule expressly does not limit the power of the court . . . to give relief under the savings clause. As an illustration of the situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. [322 U.S. 238 (1944)].150
Because of the express reference to Hazel-Atlas Glass Co. v. Hartford- Empire Co.,151 an examination of this case is important for a full understanding of the meaning of the phrase. Hartford, in support of an application for a patent, submitted to the Patent Office an article—drafted by an attorney of Hartford— referring to the contested process as a “revolutionary device.” The company had arranged to have the article printed in a trade journal under the name of an ostensibly disinterested person.152 The Patent Office relied heavily on this arti- cle in granting the patent application.153 Hartford then sued Hazel, charging in- fringement of the patent. The Third Circuit, in upholding the validity of the pa- tent, also relied on the article.154 Eventually, Hazel yielded and paid Hartford $1,000,000 and entered into a licensing agreement.155 Approximately ten years later, the information about the fraud surrounding the agreement was brought to light.156 Hazel then filed an action with the court to have the judgment against it set aside and the judgment of the district court reinstated.157 The Supreme Court, in an opinion authored by Justice Black, held that the judgment must be vacated:158
[T]he general rule [is] that [federal courts will] not alter or set aside their judg- ments after the expiration of the term at which the judgments were finally en- tered. . . . [but]
[e]very element of the fraud here disclosed demands the exercise of the his- toric power of equity to set aside fraudulently begotten judgments. This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.
149 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE CIVIL § 2870 (3d ed. 2015).
150 FED. R. CIV. P. 60 advisory committee’s note to 1946 amendment (citations omitted).
151 322 U.S. 238 (1944).
152 Id. at 240.
153 Id. at 241.
155 Id. at 243.
158 Id. at 251.
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Here, even if we consider nothing but Hartford’s sworn admissions, we find a deliberately planned and carefully executed scheme to defraud not only the Pa- tent Office but the Circuit Court of Appeals.159
Additionally, although Hazel may not have exercised proper diligence in uncovering the fraud, the Court thought it immaterial.160 Indeed, it noted the case did not concern just the private parties, but rather the public at large be- cause there are “issues of great moment to the public in a patent suit.”161 It then stated,
Furthermore, tampering with the administration of justice in the manner indis- putably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institu- tions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judi- cial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.162
Interestingly, the Court held that it need not decide to what extent the pub- lished article by Hartford had influenced the judges who voted to uphold the patent or whether the article was the primary basis of that ruling because “Hart- ford’s officials and lawyers thought the article material” and they were in “no position now to dispute its effectiveness.”163 And since the fraud had been di- rected to the Third Circuit, that court was the appropriate court to remedy the fraud.164 Thus, the Supreme Court directed the Third Circuit to vacate its 1932 judgment and to direct the district court to deny all relief to Hartford.165
Nearly all of the principles that govern a claim of fraud on the court come from the Hazel-Atlas case.166 First, the power to set aside a judgment exists in every court.167 Second, in whichever court the fraud was committed, that court should consider the matter.168 Third, while parties have the right to file a mo- tion requesting the court to set aside a judgment procured by fraud, the court may also proceed on its own motion.169 Indeed, one court stated that the facts that had come to its attention “not only justify the inquiry but impose upon us the duty to make it, even if no party to the original cause should be willing to cooperate, to the end that the records of the court might be purged of fraud, if
159 Id. at 244–45.
160 Id. at 246.
163 Id. at 246–47.
164 Id. at 248–50.
165 Id. at 251.
166 WRIGHT ET AL., supra note 151.
168 Id. (citing Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575 (1946) (other ci-
tations omitted)). 169 Id.
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any should be found to exist.”170 Fourth, unlike just about every other remedy or claim existing under the rules of civil procedure or common law, there is no time limit on setting aside a judgment obtained by fraud, nor can laches bar consideration of the matter.171 The logic is clear: “[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.”172
The United States Supreme Court—in a case a few years after the Hazel- Atlas case—discussed some of the appropriate procedures used in adjudicating fraud on the court claims.
The power to unearth such a fraud is the power to unearth it effectively. Accord- ingly, a federal court may bring before it by appropriate means all those who may be affected by the outcome of its investigation. But if the rights of parties are to be adjudicated in such an investigation, the usual safeguards of adversary proceedings must be observed.173
Since Hazel-Atlas, a considerable number of courts have had the oppor- tunity to dissect the meaning of “fraud on the court” and several definitions have been attempted. A number of courts have held that a “fraud on the court” occurs “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improp- erly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”174
Fraud on the court is a very high bar. The Tenth Circuit has held that it is fraud “directed to the judicial machinery itself and is not fraud between the par- ties or fraudulent documents . . . . It is thus fraud where . . . the impartial func- tions of the court have been directly corrupted.”175 And “only the most egre- gious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will con- stitute a fraud on the court.”176
Some courts require the moving party to meet certain elements in order to set aside a judgment for fraud on the court. For example, in the Third Circuit,
170 Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514, 521–23 (3d Cir. 1948) (emphasis added).
171 See WRIGHT ET AL., supra note 151.
172 Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969).
173 Universal Oil, 328 U.S. at 580.
174 Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (emphasis added) (citing
Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989)); Pfizer Inc. v. Int’l Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976); England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960); United Bus. Commc’ns, Inc. v. Racal-Milgo, Inc., 591 F. Supp. 1172, 1186–87 (D. Kan. 1984); United States v. ITT Corp., 349 F. Supp. 22, 29 (D. Conn. 1972), aff’d mem., 410 U.S. 919 (1973).
175 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (emphasis added).
176 Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
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fraud on the court applies to only “the most egregious misconduct directed to the court itself”177 and requires the following elements: “(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.”178
Furthermore, fraud on the court under Rule 60(d)(3) does not encompass “ordinary fraud,” and must also be distinguished from “fraud” under Rule 60(b)(3)—i.e., those frauds which are not directed to the judicial machinery it- self.179 Rule 60(b)(3) provides relief from judgment where there is “fraud . . . misrepresentation, or misconduct by an opposing party.”180 “Fraud upon the court as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication.”181 Ac- cordingly, the standard for establishing fraud on the court under Rule 60(d)(3) “is higher and distinct from the more general standard for fraud under Rule 60(b)(3).”182 Furthermore, while Rule 60(c)(1) limits to one year the time with- in which a motion under Rule 60(b)(3) must be made, a claim based upon fraud on the court under Rule 60(d)(3) is intended “to protect the integrity of the ju- dicial process” and, therefore, is not time barred.183
Despite the definitions and standards developed by the courts, the distinc- tion between “fraud” and “fraud on the court” is unclear and much confusion still exists about what type of conduct falls into this category. As one court que- ried,
What is meant by “defile the court itself”? What is meant by “fraud perpetrated by officers of the court”? Does this include attorneys? Does it include the case in which an attorney is deceived by his client, and is thus led to deceive the court? The most that we can get . . . is that the phrase “fraud on the court” should be read narrowly, in the interest of preserving the finality of judgments, which is an important legal and social interest. We agree, but do not find this of much help to us in deciding the question before us.184
As one commentator noted, “[p]erhaps the principal contribution of all of these attempts to define ‘fraud upon the court’ and to distinguish it from mere ‘fraud’ is  a reminder that there is a distinction.”185 If any fraud connected with the presentation of a case to a court is fraud on the court, then Rule 60(b)(3) and the time restraints imposed on that rule lose meaning. Nonethe- less, because of its opaque meaning and application, several arguments can be made that abusive discovery between the parties, which ultimately results in a
177 Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
178 Id. at 386.
179 See United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002).
180 FED. R. CIV. P. 60(b)(3).
181 King v. First Am. Investigations, Inc. 287 F.3d 91, 95 (2d Cir. 2002) (internal quotations
182 In re Old Carco LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010).
183 Bowie v. Maddox, 677 F. Supp. 2d 276, 278 (D.D.C. 2010).
184 Toscano v. Comm’r of Internal Revenue, 441 F.2d 930, 933–34 (9th Cir. 1971).
185 WRIGHT ET AL., supra note 151.
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on the court under Rule 60(d)(3).
III. ABUSIVE DISCOVERY AS FRAUD ON THE COURT AND REEVALUATING THE STANDARD
When, if ever, will abusive discovery practices rise to the level of fraud on the court within the meaning of Rule 60(d)(3)? Do the current standards adopt- ed by the courts preclude utilizing Rule 60(d)(3) to set aside judgments pro- cured by deceptive or misleading discovery? Is it proper to modify the height- ened standard under Rule 60(d)(3) based on the victim, the offender, and the relief sought?
Unfortunately, courts tend to focus on antiquated standards when analyzing whether a party has committed fraud on the court, but fail to recognize the flex- ibility and equitable nature of the fraud-on-the-court rule. Indeed, nearly all courts that undertake the fraud-on-the-court analysis begin their opinions with the Hazel-Atlas case, then discuss the standards and definitions adopted by oth- er courts, and finally decide whether the facts fit within that definition and standard.186 The problem with this flawed analysis, however, is that victims of fraudulent discovery find themselves as a square-peg trying to fit into a round hole. But each case is unique and must be assessed and adjudicated according to its own facts.
Accordingly, this article suggests that courts engage in a four-step process that requires (1) examination of the offender and his duties to the court, (2) evaluation of the conduct and its effect, (3) consideration of the victim’s status (the equitable component), and (4) consideration of the relief being sought. By engaging in this four-step process, courts may be more willing to set aside judgments under Rule 60(d)(3) when abusive discovery occurs that influences the decisions of courts.
A. The Offender and His Duty
When abusive discovery is at issue, the offending party will likely be an at- torney.187 Why is the offender’s status important to the analysis? “An attorney is an officer of the court and owes the court fiduciary duties and loyalty.”188 Accordingly, “[w]hen an attorney misrepresents or omits material facts to the court, or acts on a client’s perjury or distortion of evidence, his conduct may
186 See, e.g., Murray v. Ledbetter, 144 P.3d 492, 498 (Alaska 2006) (discussing Hazel- Atlas’s “strict” definition of the elements necessary to prove fraud on the court, the tracing of the rule, and whether, “[i]n keeping with Hazel-Atlas,” the activity at hand constituted a fraud on the court).
187 Obviously, there may be some situations where pro-se litigants are the one conducting abusive discovery, but that appears to be a rare occurrence.
188 Trehan v. Von Tarkanyi, 63 B.R. 1001, 1007 (Bankr. S.D.N.Y. 1986).
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constitute a fraud on the court.”189 Furthermore, when an officer of the court fails to correct a misrepresentation or retract false evidence submitted to the court, it may also constitute fraud on the court.190 Notwithstanding, examina- tion of the offender and his duty is not limited solely to an attorney’s duty of candor toward the tribunal.191 Rather, the analysis requires courts to examine certain duties that arise well before the offender involves the court.
At the outset, Rule 26(g) of the Federal Rules of Civil Procedure requires that an attorney of record sign discovery-related filings, and prescribes that the signature certifies that “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” the discovery request, response, or ob- jection is “consistent with these rules and warranted by existing law.”192 The signature also certifies that the request, response, or objection is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or need- lessly increase the cost of litigation.”193 Accordingly, Rule 26 obligates “each attorney to stop and think about the legitimacy of a discovery request, a re- sponse thereto, or an objection”194 and to make a reasonable inquiry into the factual and legal basis of his response, request, or objection. The Model Rules of Professional Conduct provide further guidance.
Lawyers are professionally and ethically responsible for accuracy in their representations to the court. Rule 3.1 of the Model Rules of Professional Con- duct states that lawyers “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.”195 Similarly, Rule 3.3 provides that “[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”196
In addition to the rules of professional conduct and an attorney’s duty of candor as an officer of the court, “Rule 11 [of the F.R.C.P.] imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have de- termined that any papers filed with the court are well grounded in fact, legally tenable, and not interposed for any improper purpose.”197 The United States Supreme Court has held that Rule 11,
190 In re McCarthy, 623 N.E.2d 473, 477 (Mass. 1993).
191 See, e.g., NEV. RULES OF PROF’L CONDUCT 3.3 (stating that lawyers shall not make false
statements of fact or law to the court or fail to correct false statements of material fact to the court).
192 FED. R. CIV. P. 26(g).
194 FED. R. CIV. P. 60 advisory committee’s note to 1983 amendment.
195 MODEL RULES OF PROF’L CONDUCT r 3.1 (AM. BAR. ASS’N 2013).
196 Id. at 3.3(a).
197 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (internal quotation marks
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imposes on any party who signs a pleading, motion, or other paper—whether the party’s signature is required by the Rule or is provided voluntarily—an affirma- tive duty to conduct a reasonable inquiry into the facts and the law before filing, and that the applicable standard is one of reasonableness under the circumstanc- es.198
An examination of the offender and his duties is important because, as dis- cussed below, violations of Rule 26, Rule 11, or even the rules of professional conduct may give rise to a fraud-on-the-court claim, even if those violations were not specifically directed to the court itself.
B. Evaluation of the Conduct
After evaluating the offender and his duties, courts should analyze the con- duct at issue. In examining the conduct, however, this Article suggests that the heightened standard adopted by several courts for fraud on the court does not comport with the rationale for employing Rule 60(d)(3) to set aside judgments. Instead, this Article suggests that courts examine one specific question when evaluating the conduct: did the conduct cause the court not to perform in the usual manner in its impartial task of adjudging cases?
While some suggest that the fraud or deceit committed by the attorney must be aimed directly at the court to constitute fraud on the court, this position seems faulty; however, it raises an important issue: since “[f]raud between the parties and fraud on the court are two distinct bases for post-judgment re- lief,”199 how can a victim use Rule 60(d)(3) to ever set aside a judgment? In other words, abusive discovery is aimed at the opposing party rather than the court, and, thus, it would appear a victim has no claim under Rule 60(d)(3). But that is not necessarily true. Fraud on the court can originate from abusive dis- covery and find its way, sometimes unintentionally, to the steps of the court- house. Accordingly, it is a myopic approach to only examine the arrow that the attorney shot towards the court and then decide whether the arrow was suffi- ciently harmful to constitute fraud on the court. Rather, a proper approach will examine all of the arrows the attorney shot at the victim and then analyze which arrows found their way to the court and the impact those arrows caused on the judgment.
Thus, for example, if an adversary misrepresents certain relevant infor- mation, fails to disclose such information, requests admissions that he knows to be false, lies during a deposition, or engages in any other deceitful form of dis- covery, he has clearly violated Rule 26 and has potentially engaged in fraud, misrepresentation, or other misconduct prohibited by ethical rules and state and federal rules of civil procedure. Admittedly, fraud on the court requires more than misconduct between the adverse parties—it must be some sort of miscon- duct that hampers the judicial machinery. Therefore, the critical component to
198 Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 551 (1991).
199 Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1291 (10th Cir. 2005).
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the analysis is whether the offending party utilizes the information it obtained through abusive discovery practices to obtain a favorable judgment.
In Kupferman v. Consolidated Research & Manufacturing Corp,200 the court stated that
[w]hile an attorney “should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the con- trary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court.” And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court.201
In other words, “[s]ince attorneys are officers of the court, their conduct, if dis- honest, would constitute fraud on the court.”202
In order to establish fraud on the court, some courts require the movant to prove by clear and convincing evidence intentional fraudulent conduct specifi- cally directed at the court itself.203 For example, the Tenth Circuit had held that the fraud must directed to the judicial machinery itself and cannot be fraud or misconduct between the parties or fraudulent documents exchanged between the parties.204 Other courts have held that an action for fraud on the court is available only when the movant can show an “unconscionable plan or scheme” to improperly influence the court’s decision.205 Under this strict approach, one could argue that the only cases of fraud on the court would be those of bribery of a judge or members of a jury. In fact, the strict approach would arguably take away any consideration of the conduct that occurred between the parties or an attorney making filings to the court without making “an inquiry reasonable under the circumstances,” as required under Rule 11(b).206
This strict approach in evaluating the conduct that occurred, however, seems inconsistent with the purpose of Rule 60(d)(3). If the judicial machinery is unable to perform in the usual manner in its impartial task of adjudicating cases because of attorney misconduct, why does fraud on the court require the conduct at issue to be intentional and aimed directly at the court itself? Why does it have to be an intentional “plan” or “scheme”?207 On the contrary, if a party is responsible for undermining the integrity of the judicial process be- cause it chose to recklessly present misleading or false evidence to the court and the court’s judgment was influenced by the conduct at issue, the judgment should be set aside as a fraud on the court.
200 459 F.2d 1072 (2d Cir. 1972).
201 Id. at 1078 (internal citation omitted).
202 H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1119 (6th Cir. 1976).
203 Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
204 Robinson v. Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995).
205 Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (emphasis added) (quot-
ing England v. Doyle, 281 F.2d 304, 309 (9th Cir 1960)).
206 FED. R. CIV. P. 11(b).
207 See, e.g., Fierro v. Johnson, 197 F.3d 147, 154 (5th Cir. 1999) (holding that in order to
establish fraud on the court, it is “necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its discretion.”) (citation omitted).
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Accordingly, lawyers that use information obtained through discovery that has no basis in law or fact to support motions filed with the court are clearly misleading the court, even if they have no intent to defraud the court. Indeed, “an attorney might commit fraud upon the court by instituting an action ‘to which he knew [or should have known] there was a complete defense.’”208 Similarly, lawyers that choose to conduct discovery without making an inquiry reasonable under the circumstances and then present false or misleading infor- mation to the court in order to obtain a favorable judgment may be guilty of fraud on the court. For example, kneejerk discovery requests served without consideration of existing law can, and should, rise to the level of fraud on the court under Rule 60(d)(3) if the court is influenced by the discovery that was improperly obtained.
Some cases may be opening the door for a more relaxed approach to the conduct component. For example, in Eastern Financing Corporation v. JSC Alchevsk Iron and Steel Works,209 the court found that an attorney committed fraud on the court when he filed a motion for default judgment.210 Absent from the court’s opinion is any analysis of the attorney’s intent.211 Instead, the court focuses on a few areas of conduct that suggest a more relaxed approach to the fraud on the court standard.212 Admittedly, the case does not involve abusive discovery, but it is illustrative of a softened approach when analyzing whether certain conduct rises to the level of fraud on the court.
Of particular importance in Eastern Financing is the court’s continued ref- erence to Rule 11 violations and a lawyer’s duty to conduct a reasonable in- quiry before filing documents with the court. Interestingly, Rule 11 does not speak to fraud, nor does a violation of Rule 11 require the movant to prove in- tent. Yet the court seemed content relying, at least in part, on this rule to find that a fraud on the court had occurred.213 In fact, a Rule 11 violation can occur when an attorney acts recklessly. Indeed, the court found that the attorney filed the complaint “without making an inquiry reasonable under the circumstances as required under Rule 11(b).”214 The court held that this was “irresponsible” for the attorney to rely on his client’s “oral recitation of facts” in preparing the complaint.215
The most compelling evidence against the attorney, however, was that he knowingly sponsored his client’s nondisclosure and misrepresentations when
208 Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989) (citing Kupferman v. Consol. Research & Mfg. Corp., 456 F.2d 1072, 1079 (2d Cir. 1972)).
209 258 F.R.D. 76 (S.D.N.Y. 2008).
210 Id. at 88.
211 But see, e.g., Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005) (requiring inten-
tional fraudulent conduct by an officer of the court in order to come within the purview of fraud on the court under Rule 60(d)(3)).
212 See Eastern Financing, 258 F.R.D. at 85.
213 Id. at 86.
215 Id. at 87.
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verifying the complaint and then filing the motion for default judgment.216 That alone was enough for the court to find that the attorney committed a fraud on the court.217 The court also found that a letter submitted by the attorney to the court that failed to make mention of a pending bankruptcy case was “less than honest dealing with the court.”218 When discussing the party’s conduct that contributed to a Rule 11 violation, the court said his submissions to the court show that he is “careless with facts and often misleading, and that he relies on suspicion and hearsay.”219 Absent again from the court’s analysis, however, is any reference to intentional fraudulent conduct specifically directed at the court itself.220 Notably, the court continued to analyze the very question posed by this Article: did the conduct at issue cause the court not to perform in the usual manner its impartial task of adjudging cases?221
In further support of a lightened standard, courts that have analyzed fraud on the court claims consistently refer to the “fraud, misrepresentation, or con- duct” that occurred in procuring the judgment.222 Again, suggesting that inten- tional fraudulent conduct specifically directed at the court is not a prerequisite to a successful fraud on the court claim. Even the Supreme Court in Hazel- Atlas stated that “[t]he public welfare demands that the agencies of public jus- tice be not so impotent that they must always be mute and helpless victims of deception and fraud.”223 There is no plausible explanation why a claim for fraud on the court cannot stand when the deception or misconduct occurs be- tween the litigants during discovery and then, at some point during the case, the conduct at issue impedes the court from performing in the usual manner its im- partial task of adjudging the case.
C. Consideration of the Victim’s Status (The Equitable Component)
The doctrine of fraud on the court allows courts to provide equitable relief. Indeed, “the doctrine of fraud on the court is a judicially devised equitable doc-
216 Id. at 82–83.
217 Id. at 88.
219 Id. at 90.
220 See, e.g., Robinson v. Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (holding
that fraud on the court requires fraud directed to the judicial machinery itself).
221 See Eastern Financing, 258 F.R.D. at 85.
222 See, e.g., Anderson v. New York, No. 07 Civ. 9599(SAS), 2012 WL 4513410, at *4 (S.D.N.Y. Oct. 2, 2012) (stating that the “fraud, misrepresentation or conduct must have ac- tually deceived the court”) (emphasis added); see also In re Old Carco, LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010) (stating that “[t]he fraud, misrepresentation or conduct must in- volve an unconscionable plan or scheme which is designed to improperly influence the court in its decision”) (internal citation omitted).
223 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (emphasis add- ed).
16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM
736 NEVADA LAW JOURNAL [Vol. 16:707 trine, the application of which is dependent on the facts of the case.”224 In Ha-
zel-Atlas, the Court noted,
Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the gen- eral rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situa- tions which demand equitable intervention, and to accord all the relief neces- sary to correct the particular injustices involved in these situations.225
Notwithstanding, some courts have held that even if a party can demon- strate conduct that caused the court not to perform in the usual manner its im- partial task of adjudging a case, “[a]ny issues that may have been ‘addressed through the unimpeded adversary process’ are not appropriately attacked on the basis of fraud upon the court.”226 For example, in Gleason v. Jandrucko, the court found no fraud on the court where the plaintiff had an opportunity to ex- pose misrepresentations made in discovery at trial.227 There, the plaintiff moved under Rule 60 after the plaintiff’s case was dismissed.228 The plaintiff argued that the officers in the case lied during their depositions about having probable cause; however, the district court found that the plaintiff had opportunity to ex- pose those inconsistencies during trial and failed to do so.229 Other courts have stated that allegations of an opposing counsel’s intentional mischaracterization of the applicable law, evidence, or affidavits submitted to the court does not rise to the level of fraud on the court if the movant’s own counsel could have rebutted opposing counsel’s mischaracterization of the law and the record be- fore the court.230
This harsh approach is unreasonable, especially if courts consider the vic- tim. The Supreme Court in Hazel-Atlas made it clear that the fraud-on-the-court rule should be characterized by flexibility and an ability to meet new situations demanding equitable intervention.231 Because of the equitable and flexible na- ture of the rule, this Article contends that courts have ample leeway and discre- tion to consider the victim’s status—i.e., those parties unable to recognize or combat the fraud prejudgment—in determining whether to set aside a judgment for fraud on the court.
224 State ex rel. Corbin v. Arizona Corp. Comm’n, 693 P.2d 362, 370 (Ariz. Ct. App. 1984).
225 Hazel-Atlas, 322 U.S. at 248 (emphasis added).
226 In re Old Carco, 423 B.R. at 53 (citing Weldon v. United States, No. 99-6142, 2000 WL
1134358, at *2 (2d Cir. Aug. 9, 2000)).
227 Gleason v. Jandrucko, 860 F.2d 556, 557 (2d Cir. 1988).
228 Id. at 558.
229 Id. at 560.
230 Weldon, 2000 WL 1134358, at *2.
231 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944) (emphasis add-
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Is it fair to suggest that pro se litigants or attorney-abandoned litigants have a duty to root out all evil during the discovery process and that any issues that could have been addressed cannot be appropriately attacked on the basis of fraud on the court? Should courts deny these victims relief because they should have, for example, rebutted opposing counsel’s mischaracterization of the law and the record before the court? Or should courts, equipped with equitable power to correct transgressions that occur before them, recognize that often- times victims of abusive discovery lack both the skill and knowledge to uncov- er misconduct during discovery or at trial? Pro se litigants and attorney- abandoned litigants do not have the tools to combat abusive discovery. These victims do not understand what a deemed admission means. These victims do not understand how interrogatories can be used fraudulently to support a mo- tion for summary judgment. These victims do not understand how the rules of civil procedure can be employed to thwart abusive discovery before it is too late.
Because courts are endowed with the power to ascertain whether their judgments were obtained by fraud, misrepresentation, or other misconduct, the victim’s status should be a consideration. The fact that the misconduct could have been rooted out during discovery should be insignificant in most cases, but it should be especially inconsequential when an attorney does not represent the victim involved. Actions involving these sorts of victims should be gov- erned by even more flexibility to afford necessary relief. The harsh standard other courts have employed should not be the current view because it is contra- ry to the equitable principles behind the relief afforded by Rule 60(d)(3).
D. Consideration of the Relief Being Sought
Interestingly, although Rule 60(d)(3) is the only rule that even mentions the fraud-on-the-court doctrine, other Federal Rules of Civil Procedure, including Rules 11, 16, 26, 37, and 41, have been cited in applying the doctrine. For ex- ample, courts have dismissed, defaulted, and sanctioned litigants for fraud on the court, and have found the necessary authority outside of Rule 60(d)(3)— often citing the inherent power given to all courts to fashion appropriate reme- dies and sanctions for conduct which abuses the judicial process.232 Some courts have premised dismissal or default of a litigant who committed fraud on the court entirely on Rule 11.233 Other courts have relied on Rule 41(b) for au- thority to dismiss a plaintiff who has committed fraud on the court.234 Rule
232 See, e.g., Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11–12 (1st Cir. 1985); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983); Eppes v. Snowden, 656 F. Supp. 1267, 1279 (E.D. Ky. 1986).
233 See, e.g., Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th Cir. 1991).
234 C.B.H. Res., Inc. v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983) (dismissing
under Fed. R. Civ. P. 41(b) where party’s fraudulent scheme, including use of a bogus sub- poena, was “totally at odds with the . . . notions of fairness central to our system of litiga- tion”).
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41(b) provides the court with authority to dismiss a case if a plaintiff fails to comply with the rules of civil procedure or other court orders.235 Such a dismis- sal operates as an adjudication on the merits.236 This rule, however, has no im- port if the offending party has already obtained a judgment.
The problem with the widespread use of the fraud-on-the-court doctrine is that courts continue to apply the heightened standard to prove a fraud on the court has occurred, yet the remedies and relief that flow from making such a finding can be entirely different. As one court observed,
When a fraud on the court is shown through clear and convincing evidence to have been committed in an ongoing case, the trial judge has the inherent power to take action in response to the fraudulent conduct. The judge has broad discre- tion to fashion a judicial response warranted by the fraudulent conduct. Dismis- sal of claims or of an entire action may be warranted by the fraud, as may be the entry of a default judgment.237
The First Circuit has examined the options of a federal district judge con- fronted by fraud on the court and has held that federal courts possess the inher- ent power to “order dismissal or default where a litigant has stooped to the level of fraud on the court.”238 It stated the following:
All in all, we find it surpassingly difficult to conceive of a more appropriate use of a court’s inherent power than to protect the sanctity of the judicial process— to combat those who would dare to practice unmitigated fraud upon the court it- self. To deny the existence of such power would, we think, foster the very impo- tency against which the Hazel-Atlas Court specifically warned.239
Rule 60(d)(3), however, only serves one purpose: to “set aside a judgment for fraud on the court.”240 Setting aside a judgment is different from dismissing a claim, an entire action, or entering a default judgment. “[D]ismissal sounds ‘the death knell of the lawsuit’”241 and is an extreme remedy that “must be ex- ercised with restraint and discretion.”242 On the other hand, Rule 60 enables courts to set aside judgments when necessary to accomplish justice and return the parties to the status quo that existed prior to the misconduct. In other words, Rule 60(d)(3) does not mandate a court to set aside a judgment and dismiss the entire case with prejudice. While dismissal with prejudice is certainly an op- tion,243 it is not a mandate created by Rule 60(d)(3). Courts repeatedly hold that
235 FED. R. CIV. P. 41(b).
237 Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 638 N.E.2d 29, 31 (Mass. 1994) (emphasis
238 Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir. 1989).
240 FED. R. CIV. P. 60(d)(3).
241 Aoude, 892 F.2d at 1118.
242 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
243 See, e.g., Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514, 534–35 (3d Cir.
1948) (stating that “[t]he records of the courts must be purged and the judgments in Univer- sal’s favor, both in this court and in the District Court, must be vacated and the suits by Uni-
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cases are to be tried on the merits if possible.244 Thus, based on the indiscretion at issue, courts may set aside the judgment and additionally take any of the fol- lowing actions: (1) require a trial on the merits unblemished by the misconduct, (2) sanction the offending party, (3) dismiss a particular cause of action, or (4) dismiss the entire proceeding with prejudice.
The bottom line is that fraud on the court can take many forms and the standard for setting aside a judgment for fraud on the court under Rule 60(d) ought to be flexible. The options afforded to courts confronted by attorney mis- conduct suggest that courts can and should focus on the egregiousness of the conduct and the relief being sought. While some misconduct might fall short of furnishing a basis for setting aside a judgment and dismissal with prejudice, other indiscretions may warrant such a harsh remedy. Courts possess plenary authority “to manage their own affairs so as to achieve the orderly and expedi- tious disposition of cases.”245 As a result, examination of the options of the court confronted by misconduct—whether that is taking additional steps be- yond setting aside the judgment such as ordering dismissal or imposing sanc- tions—is an important component to process litigation to a just and equitable conclusion.
E. Illustration of the Four-Part Test
The Fallini case cited above provides a logical illustration of the four-part test for several reasons. First, it involved alleged misconduct by an officer of the court.246 Second, the alleged misconduct originated during the discovery process.247 Third, the attorney abandoned the victim when the misconduct tran- spired.248 And finally, the conduct caused the court not to perform in the usual manner its impartial task of adjudging the case, because the court never heard the merits, but instead entered an order based on a false admission.249
In order to address the misconduct in Fallini, the victim hired a new attor- ney and on May 21, 2014, filed a motion for relief from judgment under Rule 60. It alleged that plaintiff’s counsel “knowingly forced fraudulent facts on the
versal must be finally dismissed. No principle is better settled than the maxim that he who comes into equity must come with clean hands and keep them clean throughout the course of the litigation, and that if he violates this rule, he must be denied all relief whatever may have been the merits of his claim”).
244 See, e.g., Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (stating that “cas- es should be tried on the merits rather than the technicalities of pleadings”) (citation omit- ted).
245 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962).
246 Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Aug. 6, 2014), at 1 (court
247 Id. at 3.
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1. The Offending Party and His Duty
The court, in addressing whether fraud on the court occurred under Rule 60, focused on the offending party—plaintiff’s lawyer—and noted that “as an officer of the court, [he] had a duty to not mislead the court or fail to correct a misrepresentation.”251 It held that “[s]imple dishonesty of any attorney is so damaging on courts and litigants that it is considered fraud upon the court.”252 And, citing to rules of professional conduct, the court further held that “[a]n of- ficer of the court perpetrates fraud on the court a) through an act that is calcu- lated to mislead the court or b) by failing to correct a misrepresentation or re- tract false evidence submitted to the court.”253
2. The Conduct
The court next focused on the conduct at issue. Interestingly, the attorney in Fallini denied knowing that the accident occurred on open range,254 which may have been an attempt to refute that any intentional misconduct occurred. After considering the evidence, however, the court found that the attorney “knew or should have known the accident occurred on open range prior to filing his request for admissions.”255 The court also found that “[a]t the bare mini- mum, [the attorney] possessed enough information to conduct a reasonable in- quiry into the open range status of the location where the accident occurred.”256 Despite this knowledge, the attorney sought an admission from Fallini stating that the area where the accident occurred was not open range, a false fact that was deemed admitted when Fallini’s attorney failed to respond.257
Thus, as an officer of the court, the attorney violated his duty of candor un- der the rules of professional conduct “by utilizing Defendant’s denial that the accident occurred on open range to obtain a favorable ruling in the form of an unopposed award of summary judgment.”258 Consequently, the court found a violation of Rule 60(b) because “Plaintiff’s request for admission of a known fact, a fact that was a central component of Defendant’s case, was done when
at 1. at 7. at 6.
at 7. (emphasis added). (emphasis added).
at 5. at 8.
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range, thereby perpetrating fraud upon the court.”259
3. The Victim
The court also considered the victim in this case. It noted that the attorney who committed the fraud on the court “may argue that all [Fallini’s prior attor- ney] had to do was simply ‘deny’ the request for admissions.”260 While this is certainly true, the court took special consideration of the fact that Fallini’s prior attorney failed “to respond to various motions and requests to the extent that [plaintiff’s attorney] knew or should have known that a response from [Fallini’s attorney] was unlikely.”261
The court also recognized the maxim the Supreme Court expressed in Ha- zel-Atlas: the fraud-on-the-court rule should be characterized by flexibility and an ability to meet new situations demanding equitable intervention.262 The court clearly considered and accepted the inequities of the case, as it acknowl- edged that “one cannot ignore the apparent injustice that Defendant has suf- fered throughout this matter. Ms. Fallini [was] responsible for a multi-million dollar judgment without the merits of the case even being addressed.”263 In oth- er words, it was significant to the court that Fallini’s attorney had abandoned her, and this certainly influenced, at least in part, the court’s decision to set aside the judgment due to a fraud on the court.
4. The Relief
The court recognized that “[f]inality has a particular importance in our le- gal system.”264 However, it also noted that a final judgment is one “that dispos- es of the issues presented in the case, determines the costs, and leaves nothing for future consideration of the court.”265 But “the issues presented in this case were summarily disposed above due to the negligence of Defendant’s counsel . . . [and] [t]he merits of the case were never actually addressed.”266 Again, rec- ognizing the victim’s status, the court found that had Fallini’s attorney “proper- ly denied the improper request for admissions, the outcome may have been much different.”267
The court’s order states several times throughout that “cases are to be heard on the merits if possible” and that Fallini was unjustly punished without the
259 Id. (emphasis added).
263 Id. at 9.
264 Id. at 10.
265 Id. (quoting Alper v. Posin, 363 P.2d 502, 503 (1961)).
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merits of the case ever being addressed.268 In addition to its express authority to set aside the judgment under Rule 60, the court clearly had the authority to or- der further relief, such as sanctions or dismissal with prejudice.269 Pursuant to the court’s Order Granting Motion for Entry of Final Judgment and Dismissing Case with Prejudice, the court entered final judgment in favor of Fallini and dismissed the case with prejudice.270
While finality of judgment matters, no worthwhile interest is served in pro- tecting judgments obtained by misconduct. The Federal Rules of Civil Proce- dure contemplate liberal discovery, but the potential for discovery abuse is ev- er-present. There are rules in place to remedy abusive discovery, yet those rules are only functional during litigation—they serve no purpose post-judgment. Thus, cheaters are prospering under the judicial system, especially against vul- nerable victims that lack both the skill and knowledge to adequately prepare a defense or thwart the abusive conduct before an unfavorable judgment is ren- dered.
Rule 60(d)(3), however, allows a court to set aside judgments—judgments obtained years earlier—which have been secured by a fraud on the court. But to succeed in setting aside a judgment, several courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is too high. If federal courts were compelled to follow this standard, nearly every claim of abusive discovery would fail. How- ever, the remedial and equitable nature of the fraud-on-the-court doctrine and the great public policy that it embodies militates against making that burden an impossible hurdle for victims of abusive discovery.
Fraud on the court can take many forms. Fortunately, the fraud-on-the- court rule that the United States Supreme Court articulated in Hazel-Atlas should be characterized by flexibility and an ability to meet new situations de- manding equitable intervention. The equitable and flexible nature of the rule supports the contention that the current standard for evaluating fraud on the court is flawed. The four-step step process outlined above—with the ultimate inquiry of whether the abusive conduct caused the court not to perform in the usual manner its impartial task of adjudging cases—further facilitates a court’s inherent power to do whatever is reasonably necessary to deter abuse of the ju- dicial process.
268 Id. at 9 (quoting Passarelli v. J-Mar Dev., Inc., 720 P.2d 1221, 1223 (Nev. 1986)).
269 See, e.g., Rule 41 and 11 discussed supra Parts III.B, III.D.
270 Order Granting Motion for Entry of Final Judgment and Dismissing Case with Prejudice
at 2, Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Apr. 17, 2015).
Dear Mom's of Sandy Hook,
I'm sending my best, love and support from Manhattan, however I do get to Newtown about every other week. Back on the 21st of December- the night of the Vigil, I first came to offer my support.
A few nights before, I watched a special about a similiar event in Dubane Scotland, and was comforted to learn that the way Dubane was able to move forward was that they had built a children's center. I run a 15 year old children's foundation and have the resources to immediately facilitate such a venture. Even before leaving Manhattan, I called my billionaire hedge fund buddy and asked for his support, as well as celebrities from Ricky Martin, Juliane Moore, to Bravos Andy Cohen. Again, I explained I was heading to Sandy Hook to build a children's center and within 2 hours of my arrival I had my permission. I was first asked if I wanted to break ground or rehab some of the empty buildings there at the vigil site. I then began to express the reason for my participation/ involvement and closed with I actually had no choice.
Violently, senselessly, and also prematurely my immediate family suffered the loss of two siblings. One as a result of childhood abuse, and the other a suicide very common with football players who've suffered head trauma due to concussions. We know loss, as Newtown knows loss. And although I never could compare the two, loss is loss and with that comes with a whole slew of reactionary effects. In addition, i lost a child hood hero who was also gunned down, and the person I was planning on spending my life with was on the plane that took down The World Trade Center. My family has not been the same and one could argue it destroyed our family. My oldest sister's marriage failed as a result, and its a wonder the remaining are alive this day as depression, acting out, and anger defined us for a time. I found solace in my dedication to others/humanity and used the skills learned to cope and facts I learned along the way to establish a national children's foundation- making my entire life that of service.
So, I told the town accessor who had become in charge of the donations and such that as much as I'd love to be the one identified with the center and acknowledged for my commitments, its not about me. And further more, I am still an outsider. I proposed a family step forward and I'm proud to say the Kowalski's are that family, and I will see to it that there every wish is granted. Envision a center where we honor those lost and help those left behind heal.
The proposed project is slated to become Chase's Place and will honor all those lost that fateful day and again help those left behind heal.
We have a billionaire hedge fund guy who's generously pledged a billion dollars to non profit/charities who's been very generous and good to us so far.. We have a family relationship with the new CEO of Citibank, so corporate sponsors wont be a problem. We have celebrity interest from a dozen plus A list personalities, and relationships with well known retailers that will afford our earning our own funding for operational costs, so you can be sure 96% of all monies raised will go directly to the center.
Essentially, what I'm able to do is expedite the process using first hand knowledge I've learned throughout the years. I'm here to help and with a 6 month anniversary right around the corner, I also wanted to ensure you we around the globe have not forgotten, and we are here for you whenever is needed.
To all the mom's thank you for bring the unsung hero, you are and always will be our MVP. For those of you who lost immediately, the absence will remain with a sense of emptiness. Only time will lessen this horrific traumatizing life disturbing anguish you feel. And the only way for evil to not win is to go forward finding and holding on to the fact that anything can be learned from and how you go forward will define you.
I was raped by a neighbor 37 years old to my 11. When I had courage to seek help, my priest later used information I shared personally and confidentially only to then become victimized/ assaulted again. I however will not allow for another to define me. My sister hadn't had the fight I have and succumbed.