seen obstacles for the attorney lacking
preparedness to address and comprehend the multi-constituent components
comprising the RICO statute.
Counsel, when confronted with a po-
tential RICO action, whether represent-
ing a client victim of commercial fraud
or a client being pursued for committing
commercial fraud, must exercise due
caution when contemplating whether to
embark upon such representation in the
event counsel lacks specific experience
or knowledge of RICO law.
Statement Order Practice and
When faced with this challenge, a practical approach for counsel to consider
is moving the federal court for entry
of a RICO Case Statement Order. The
support for advancing such a motion is
embodied within Title 28 United States
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Code § 2071, Fed. R. Civ. P. 83, and Fed.
R. Civ. P. 11(b).
Many federal district courts issue
standing orders in civil RICO cases requesting that a RICO plaintiff’s counsel
provide certain details concerning their
civil RICO claims. Responses to such orders are sometimes referred to as RICO
Case Statements. RICO Standing Orders typically are routinely issued soon
after the commencement of a RICO action by the filing of a RICO complaint,
but some federal district courts have issued RICO Case Statement Orders and
RICO Standing Orders at later stages
as a means of clarifying the matters
remaining at issue. RICO Standing Orders and RICO Case Statement Orders
resemble interrogatories and inquire
for specifics upon the plaintiff’s allegations. Nonetheless, RICO Standing Orders and RICO Case Statement Orders
issued by a judicial officer offer at least
two advantages over defense interrogatories: first, plaintiff’s counsel are less
likely to provide evasive responses to a
court; second, in jurisdictions that numerically restrict interrogatories, such
as the 25 interrogatory limit of FRCP
33(a), RICO Standing Orders and RICO
Case Statement Orders provide a means
of obtaining discovery concerning a
plaintiff’s contentions without using up
In two separate opinions, the Fifth
Circuit Court of Appeals has sustained
and upheld the use of RICO Standing
Orders requiring RICO plaintiffs to file
RICO Case Statements as appropriate
under Rules 8(a) and 9(b) of the Federal
Rules of Civil Procedure. See Elliott v.
Foufas, 867 F.2d 877, 879 (5th Cir. 1989)
and Old Time Enters. v. International
Coffee Corp., 862 F.2d 1213, 1217 (5th
Cir. 1989); see also O’Malley v. O’Neill,
887 F.2d 1557, 1559 (11th Cir. 1989);
Obee v. Teleshare, Inc., 725 F. Supp. 913,
915 (E.D. Mich. 1989); Marriott Bros. v.
Gage, 717 F. Supp. 458, 460 (N.D. Tex.
1989)(RICO Standing Orders routinely
entered by District Courts to permit
the court and the parties to proceed
with greater understanding; FRCP 83
expressly empowers a District Court to
“make and amend rules governing its
practice not inconsistent with” the Federal Rules).
The unprecedented, increasingly
sheer magnitude of civil RICO filings
has produced a correlative response by
federal district courts to address the