Federal Practice - the Honorable Richard Mills

• Jurisdiction: United States,Federal
• Publication year: 1998
• Citation: Vol. 49 No. 4

Federal Practiceby Honorable Richard Mills^*

The formula for success in trial practice is simple: Be prepared, be decent, and be on time.

There are ninety-four district courts in the United States. Twenty-four states have two or more districts; for example, Illinois and Georgia have three. Twenty-six states, plus the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, are single districts. And in all of those ninety-four districts over the last thirty years, the civil cases have tripled! In my district we have quadrupled our caseload in that same time frame. In the last five years alone, we have had a 58.7% increase in the district courts. That is an average of 520 cases per judge across the country. The contract disputes involving the government have doubled; the contract disputes between private parties have more than doubled; the personal injury lawsuits have risen more than forty-five percent since 1980; and complaints by federal prisoners have risen from more than thirty-five percent in that same seven-year span.

The average civil practitioner is not concerned for the most part with complaints filed by prisoners. Those come to us mostly pro se. But those are still civil cases upon which district courts must spend a great deal of time; in fact, courts spend a disproportionate amount of time on them because they are pro se, which means that we must expend inordinate time to comb the record very carefully. That adds to the tremendous caseload already on the dockets of district courts. The picture is equally bleak in the intermediate federal appellate courts. The cold hard data is that over thirty-three thousand cases were filed in 1985 in the thirteen circuit courts of appeals of our system.

Whether we are talking about small claims or traffic complaints in the state systems or whether we are talking about the United States Supreme Court, all tribunals are volume courts. We must deal with that volume. There are, of course, many ways to do this. One that is constantly being suggested is to appoint more judges, elect more judges, and build more courthouses. That simply is not going to do it. These simplistic solutions not only postpone the problem but, in fact, exacerbate the problem. The old snowball effect comes into play. What we must do is recognize that the legal frontiers we face today lie not in the area of substantive law but in the procedural processing of the cases and management of the docket. The key is case management. We must devise new and innovative ideas on how to handle this inundation, this unbelievable volume that has buried our entire legal system, state and federal.

But the federal court practitioner is faced with the territory as he finds it. So let us examine the practical way of treading through the district court.

The cardinal caveat is: "Know your Judge!" This is essential if one is to understand the clear but unwritten rules of the game. We all have our idiosyncracies, and judges have more than their fair share. When a case is filed, the assignment system takes hold, the wheels turn and you learn which judge is going to be handling the case. Your first step is to learn the background of the judge. Nose around and find out what you can about him. Every law library of any magnitude has compilations of judicial biographies that can be quite helpful. Get a handle on your judge. Know who you are dealing with. You want to get the flavor of what he or she is. You want to know about his professional background, his career. Did he come up through the professional ranks? What has he done? We are all human beings. We are at least the products (if not the victims) of the environments from which we came. So look into it. That will give you a pretty fair handle on who the judge is.

That is the base, but you want to know more about him. You want to know how he thinks and whether he is considered conservative. He may be conservative in certain areas but extremely liberal in others, so you cannot trust labels. Go to the books and look at some of his opinions if any are published. Go to Lexis or Westlaw in the office, punch in the key words and numbers, and come up with a list of his cases. If you happen to have a particular type of civil case that you are filing in his court, you want to see what he has written or said about that particular kind of case. This is very important. If there is no written track record, check with your colleagues. Check with those that have been before him in your particular kind of case and get a good handle on how he approaches the process and the procedure in that type of case. We judges are what we are. There are clear, yet unwritten, rules of the game, and you need to know them if you are going to travel on the proper track when you get into that particular judge's court.

Your prime inquiry should be whether that particular judge runs a slow or fast track. At what pace does he handle his case management? The answer to this will generally determine whether the rules are strictly complied with, and you go for broke, or whether the pace is more casual and the rules are more relaxed. With ninety-four districts across this country, judges come in every shape and kind with many variations. It is going to pay off in the long run if you get a handle right up front on what kind of judge you are dealing with, what he likes, what he wants, how he views the rules, how he enforces (or ignores) them, and whether he pushes his calendar and docket or lets it run with the tide.

Whenever there is a recusation, a reassignment of a case, or a visiting judge who has come in from another district, each judge brings his own rules with him. Some judges will take matters under advisement and sit on them forever. Others will not take anything under advisement unless it is absolutely unavoidable. Some will permit oral argument on motions while others will not, preferring to rely on briefs and memoranda. Most local rules limit the pagination for memoranda to be attached to the motions filed. Is the judge easy or tough on allowing extra pages? By contrast, in many state systems, oral arguments on civil motions are either a matter of right or custom. For years now the Federal Rules of Civil Procedure have placed that discretion entirely in the hands of the judge. Many federal jurists do not feel they have the opportunity or the leisure in which to schedule oral arguments on routine motions. Some judges make extensive use of the telephone conference as a means of cutting down on administrative time lost and as a convenience to counsel.

A minor coup de grace is to cite the judge's own cases. Common sense, right? If you find a case similar to yours that he has written or ruled upon (hopefully in your favor), it will be persuasive. Even if the case is adverse, cite it, distinguish it, and articulate why it is not the same and should not be applied in your case. These are practical suggestions that will bear some fruit down the line. My real message is that regardless of which judge is assigned to your case, take a close look at him. Get in there and dig. Do your homework and find out his thought process regarding any particular kind of case. This is an essential element in "knowing the territory."

To look at judges qua judges, regardless of who we are or where we sit, toss us all into a sack, shake us up, and most of us will conduct our court in essentially the same manner. Most basic requirements of case progress are mandated either by congressional statutory mandate, by federal rules, or by decisional law. Thus, ninety percent or so of the work on any case—as to the substantive aspects—is going to be determined by those dictates, and there will be little deviation or change. It is only the procedural area that is going to change because of a judge's particular modus operandi.

Now let me tell you how to irritate the judge. These irritating ways are going to vary from judge to judge, but only by degree, because the bone and sinew of each of these points is shared by nearly every district judge in the ninety-four districts.

The first irritant is failure to prepare. The hallmark of a good lawyer is preparation, and preparation is a sign of respect for the entire judicial process. One judge has said that when a lawyer disappears into the recesses of his litigation bag and uncovers his witnesses' identities and then mispronounces their names, we know we are in for a long, painful trial. Preparing witnesses just as they take the stand, fumbling around to find that key exhibit, and failing to have the next witness ready to go are common occurrences, and they simply demonstrate a total lack of preparation.

I know one lawyer who has done defense work for many years and is always prepared when he comes into court. He settles most of his cases very advantageously to his client because he is totally prepared. He knows the plaintiff's case better than the plaintiff by the first settlement conference, and by the time the final pretrial conference comes around, he is loaded for bear. He always learns exactly what the judge's ground rules are and follows them to the letter, regardless of whether he likes them or not. That is preparation, and it pays huge dividends.

The second irritant that is endemic to judges qua judges is a lawyer being late. We understand there are extreme circumstances now and then causing delay that simply cannot be avoided. But if it does take place, get on the telephone and let us know. When final pretrial conferences are set in a row seriatum, half an hour apart, on a Monday from nine o'clock straight through to the last setting at four-thirty, every thirty minutes is crucial. This is a vital part of the case management system, and if an extreme circumstance arises (and I do mean a meritorious reason), at least call immediately because that final pretrial conference is the most crucial last-ditch stand before we put a jury in the box and go to...