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Article summary:
1. Dismissal with prejudice has long been available as the ultimate civil sanction against litigation misconduct, but is often bypassed in the belief that such efforts rarely succeed at the trial court level and are frequently reversed on appeal when they do.
2. Recent decisions have been more favorably disposed to affirm dismissals with prejudice for serious, palpable "fraud on the court."
3. Trial courts have broad discretion to fashion remedies and sanctions where a party has been found by clear and convincing evidence to have perpetrated a fraud on the court.
Article analysis:
The article discusses the use of the ultimate civil sanction of dismissal with prejudice or default for litigation misconduct, specifically fraud on the court. The author notes that while this sanction has been available for a long time, it has often been bypassed due to its rarity and frequent reversal on appeal. However, recent decisions have shown an increased willingness to affirm dismissals with prejudice for serious fraud on the court.
The article provides a clear definition of fraud on the court and outlines the evidence necessary to support such a finding. It also distinguishes between substantive and procedural misconduct and notes that substantive misconduct is more likely to result in an affirmed dismissal with prejudice or default.
While the article provides useful information about fraud on the court and its potential consequences, it does not explore counterarguments or potential risks associated with dismissing a case with prejudice. Additionally, there is no discussion of how this sanction may disproportionately affect certain parties or how it may be used as a tool of intimidation by powerful litigants.
Furthermore, the article seems to take a one-sided approach in favor of imposing harsh sanctions for litigation misconduct without fully considering alternative remedies or approaches. This bias may stem from the author's background as a lawyer who specializes in defending clients against fraudulent claims.
Overall, while the article provides valuable insights into fraud on the court and its potential consequences, readers should be aware of its potential biases and limitations in presenting both sides equally.
Topics for further research:
Risks associated with dismissing a case with prejudice
Disproportionate impact of dismissal with prejudice on certain parties
Use of dismissal with prejudice as a tool of intimidation
Alternative remedies for litigation misconduct
Criticisms of harsh sanctions for litigation misconduct
Perspectives from lawyers who specialize in prosecuting fraudulent claims