Faculty of Federal Advocates Newsletter

Table of Contents:

• President's Message, Diane S. King
• Debriefing from the Bench/Bar Roundtable, by Michael E. Hegarty
• Second Annual Bankruptcy Pro Bono Program Reception
• Thank you from the Counsel/Co-Counsel Program
• Thank you to the Bankruptcy Pro Bono Program and Bankruptcy Liaison Committee

President's Message
by Diane S. King

What do you get for your $40 per year FFA dues? In other words, why should you keep
paying us? Membership in the FFA is the best deal in town. So often, we join organizations because it is expected but are left to wonder if it’s really worth it. If you have been wondering lately about the FFA, let me remind you why it is a valuable organization to be involved in.

First, we hosted and will continue to host brown bag lunches with the Federal Judges and Magistrate Judges. This is one of the few forums where you can meet Federal Judges on an informal basis and ask questions! All of the Judges and Magistrate Judges who participated have been open, helpful and terrific sports. In fact, I asked a question of Magistrate Judge Boyd Boland last year in a brown bag and he indicated he did not know the answer, but would find out. The next morning, I have a voice mail message from Judge Boland (it was apparent he gets in earlier in the morning than I do) answering my question.

Second, you are invited to attend a number of interesting and relevant CLEs (we have several very good CLEs planned for this year). Last year, Dave Powell’s Courtroom Technology CLEs were packed. This year, we plan to host CLEs discussing civil, criminal and bankruptcy issues as well as specialized educational seminars addressing 42 U.S.C. § 1983 actions and other claims commonly asserted in counsel/co-counsel program.

Third, the FFA manages the Counsel/Co-counsel program with the assistance of volunteer attorney Rick Foster of Cockrell Quinn & Creighton. This program places pro se plaintiffs with volunteer attorneys, including younger attorneys seeking courtroom experience. It provides a tremendous service to the pro se litigants and the courts.

Fourth, we hosted the first ever Bench Bar Roundtable Discussion with the Federal Judges
and Magistrate Judges last November, which was a rousing success, and we intend to host another one this fall. We had exceptional participation from the bench and I still have attorneys raving to me about it being the best CLE they have ever attended.

Last, we have big plans for the future. We have a new lawyer subcommittee that is planning a federal court new lawyer orientation for new admittees, we’re in the process of recruiting nationally recognized attorneys to talk about their high-profile cases and we have an enthusiastic, high energy board with a number of other great ideas that we’re working on.

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Debriefing from the Bench-Bar Roundtable:
Tips for the Federal Court Practitioner
by Michael E. Hegarty

On November 8, 2003, the FFA sponsored its inaugural Bench-Bar Roundtable. By all accounts, it was a well-received and highly acclaimed event. The format consisted of four rounds of 45-minute discussions, with each table having one judge, one attorney moderator, and approximately six attorneys, and each attorney having the opportunity to participate in four of the seven different discussions.

The discussion topics were (1) use and benefit of dispositive motions; (2) settlement procedures; (3) local rules of practice - what works and what does not; (4) role of the lawyer/role of the judge; (5) magistrate judges - allocation of responsibilities; (6) courtroom technology; and (7) electronic discovery. Participating judicial officers included Chief Judge Babcock, Senior Judge Weinshienk, District Judges Nottingham, Miller, and Krieger, District Judge-designate Figa, and Magistrate Judges Schlatter, Coan, Watanabe, Boland, and Shaffer.

The recurring themes from the judges and bar participants tracked those which arose during the eight brown bag lunches sponsored by the FFA in 2003. Because the FFA believes that these insights will benefit the federal court practitioner, they are outlined in detail here.

I. THE DISCUSSIONS

(A) Dispositive Motions

On the down side: First, only approximately two and one-half percent of all civil cases ever make it to trial. Of the cases that are resolved before trial, only about one third are disposed of by motion. The discussion produced some sentiments that the money currently being spent on dispositive motions could be more efficiently used to settle cases. Second, it was commonly believed that 12(b) motions are best reserved for serious questions of personal or subject matter jurisdiction. Otherwise, they should be avoided, particularly given the high standard for a successful motion and the likelihood that plaintiffs will be given an opportunity to amend their complaints. In particular, some judges believed that 12(b) motions simply create billable hours or cause delay and are not useful in educating the judge for a subsequent Rule 56 motion. Third, the judges suggested that instead of using a Rule 56 motion to weed out claims, attorneys should provide more detailed confidential settlement letters to the magistrate judges and equip the judges to speak frankly about your case during the settlement conference.

On the up side: First, oral arguments on dispositive motions created an opportunity for client attendance and observation of court proceedings, which could materially assist the attorneys in adjusting client expectations, further client understanding of the time and length of the litigation process, and encourage more realistic settlement positions. Second, 12(b) motions are useful and, indeed, required on issues of personal and subject matter jurisdiction, and with governmental defendants. Third, such motions were viewed as useful in preparing the attorney for the trial and, in some cases, providing information for more productive settlement negotiations. Fourth, defense attorneys attributed some of the volume of dispositive motions to the possibility that plaintiffs are overpleading their case.

If a motion must be filed: First, you must strictly adhere to mandatory page limitations which some judges have and, in any event, the judges universally encouraged short motions and few attachments (and practitioners encouraged amending the local rules to consider explicit page and exhibit limits on dispositive motions and appendices). The theme here was “anything that renders something complex more simple is helpful.” Second, the summary judgment “grid system” (used in varying degrees by district judges Nottingham, Krieger and Blackburn) is viewed as helpful in clarifying summary judgment issues and facilitating and expediting a ruling. Third, motions for partial summary judgment are disfavored and may go to the bottom of the stack. Fourth, reference of dispositive motions to magistrate judge jurisdiction (versus stipulation or consent jurisdiction) does not materially assist in resolving motions, because objections and appeals to the district judge are largely routine. However, practitioners should be aware that if a dispositive motion has been pending for at least six months (which is becoming less common), the parties can consent to magistrate judge jurisdiction (randomly assigned), with appeal lying to the Tenth Circuit. Finally, the bar viewed oral arguments as useful in expediting rulings on motions and allowing more client participation.

(B) Settlement Procedures

Regarding settlement conferences, if a need for a quick conference arises, just call the magistrate judge and explain the circumstances. Likewise, if a party believes an upcoming settlement conference would be a waste of time, please notify the magistrate judge. The general theme expressed by all judges was that attorneys need to spend a lot more time writing thorough and complete confidential settlement letters; more effectively prepare their client for what to expect at a settlement conference; and be ready to frankly assess not just the strengths of your case and weaknesses of your opponent’s, but the weaknesses in your own case.

Other issues involving settlement procedures are sprinkled throughout the remainder of this article.

(C) Local Rules of Practice

Generally

Attorneys really need to consult both the district and magistrate judges’ particular rules of practice. These can be found at www.cod.uscourts.gov.

Rule 5.2 - Service By Other Means, Including Electronic Means

First, E-filing is coming, although the target date is January 2005. This will be part of the court’s electronic case management system. Second, Judge Krieger is encouraging fax filings and receipt of documents by fax or e-mail.

Rule 7.1 - Motions

First, the judges stress that the “confer with opposing counsel” requirement is real, and requires actual communication prior to filing a motion. Many judges will simply deny a motion outright if the moving counsel simply left a voice mail. The moving counsel must detail what efforts were used to contact opposing counsel. If opposing counsel is being recalcitrant, they might get a phone call from the judge. Second, there was general sentiment that the rule is not workable with incarcerated individuals, and many (if not most) judges do not require actual contact in such circumstances.

Rules 7.2-7.3 - Motions To Seal, Filing Under Seal

Practitioners either do not understand or simply do not follow the rules governing the filing of matters under seal. The parties must follow the procedures in the rules, or it will not be sealed (and the clerk’s office will not try to correct your mistakes); agreement among counsel is not enough. If the practitioner is not clear on what the requirements are, the clerk’s office is there to help.

Rule 16.2 Scheduling Orders

The timing of designating experts was a hot issue. It was generally agreed that the party with the burden of proof on an issue should designate their experts first, with the opposing party having 30-60 days to designate opposing experts.

Rule 30.3 Sanctions For Abusive Deposition Conduct

First, most magistrate judges require a telephone call to the court prior to filing a motion for sanctions, so that the dispute might be resolved without motions practice. Second, it is advisable that if you go to a court with a sanctions request, there must be a stark contrast between your own conduct and that of the alleged wrongdoer. Third, most lawyers agreed that the sanction attorneys fear most is striking a claim or defense, or other sanction that directly impacts the client’s interests. However, some attorneys felt that monetary sanctions were very effective as well.

Rules 72.1-72.3 Special Proceedings

Of 2464 cases filed in 2002, only 40 involved magistrate judge consent jurisdiction (less than 2%). One reason noted by practitioners was the uncertainty of who the randomly assigned magistrate judge will be.

(D) Role of the Lawyer/Role of the Judge

(1) Magistrate Judges

First, practitioners requested some consideration from the judges concerning the time allotted for settlement conferences for certain types of cases (particularly employment discrimination) which necessarily take longer. Moreover, practitioners appreciated the flexibility of the magistrate judges in timing the settlement conferences, particularly when the parties believe that a key deposition or a decision on a pending motion will greatly assist settlement. Second, practitioners appreciated input from the judges on the strengths and weaknesses of the parties’ case. Finally, some practitioners expressed concern with a magistrate judge issuing recommendations on dispositive motions and/or deciding discovery motions, while also being the settlement judge.

(2) District Judges

First, practitioners were concerned that delays in ruling on dispositive motions hinders the settlement process. Second, there was a concern that the judges are moving the case too quickly at its initiation, particularly in requiring the defendant to participate in a scheduling conference and/or serve Rule 26 disclosures when an answer is not even due (this often results from a plaintiff delaying service of the summons and complaint). Third, some practitioners and judges felt that if the court perceived incivility or abusive language in a motion, the court should advise the parties in the order disposing of the motion.

(3) Attorneys

First, practitioners need to more thoroughly prepare their clients for the settlement conference, particularly regarding the frank comments that the client might hear from the magistrate judge and the general nature of the process. Second, attorneys need a higher level of professionalism and communication than is currently the norm. Some judges expressed concern at the general incivility which occurs in cases (particularly in discovery). Indeed, this can result in a courthouse “discovery reputation" for the individual lawyer. Third, attorneys need to identify and admit the weaknesses in their case, in order to have effective settlement negotiations. Fourth, the judges felt that plaintiff’s counsel include too many claims in the complaint, and defense counsel too many defenses. Fifth, attorneys need to understand the proceedings, particularly the difference between a pretrial conference and a trial preparation conference. Sixth, if a case settles, contact the magistrate judge immediately; when this is not done, the magistrate judges do not know about the case dismissal, and parties may simply not show up at a previously scheduled (but now moot)
court appearance.

(E) Magistrate Judges - Allocation of Responsibilities

Much of what was covered in this discussion is contained in other sections of this article. However, settlement conferences were a significant topic at some of the brown bag lunches. Some of these were: First, the magistrate judges take settlement conferences very seriously. They want attorneys to be truthful in confidential settlement statements, especially with the weaknesses of the case. The sentiment was that if the attorneys do not discuss the case's weaknesses, the judge doubts that counsel has really adequately advised the client. However, the magistrate judges may tell you and your client to your faces the problems with the case, which creates an awkward moment if the attorney has not discussed this thoroughly with the client. Second, the magistrate judges will read everything you give them, including transcripts, briefs, etc., that will help the judge settle the case, so unlike with summary judgment briefs, do not hesitate to send a stack of material. Third, although many settlement conferences are set for 1 _ hours, they will give you more time if you ask, and some will work on a Saturday if you think that will get the job done, although not in the court house (in order not to burden court staff); it will have to be in an attorney’s office or other suitable location. Some magistrate judges will also meet after 5:00 p.m. under the same conditions.

(F) Courtroom Technology

The present technology was universally acknowledged as very useful. The judges encourage attorneys to contact their courtroom staff to receive training with the equipment well in advance of the start of a hearing or trial.

(G) Electronic Discovery

Again, all participants recognized the utility of electronic discovery, although some firms/clients have a significant financial and technological advantage.

II. THE EVALUATIONS

The evaluation forms can be summed up easily: Almost everyone liked the format and the discussion topics; they would attend another roundtable discussion program; there were about the right number of people attending; and the room and food were excellent (except for the acoustics and the elevator music). Finally, some participants would have liked the opportunity to participate in all seven topics rather than four.

1. Many of the comments herein were provided by the moderators at the tables.
2. As noted elsewhere in this article, a common complaint expressed by the magistrate judges was the dearth of information provided to them in the confidential settlement letters

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Second Annual Bankruptcy Pro Bono Program Reception

Please join us for the Bankruptcy Pro Bono Reception to honor the attorneys who have volunteered to represent debtors in discharge litigation. The reception will be held on May 5, 2004 at 4:30 p.m. at the Embassy Suites Hotel, 1881 Curtis Street, in downtown Denver. We will have complimentary hors d’oeuvres and a cash bar.

The Donald E. Cordova Distinguished Service Award, named for the late Chief Bankruptcy Judge, will again be presented to one of the attorneys. Judge Cordova was a driving force behind the creation of the Bankruptcy Pro Bono Program and his contribution is remembered through this award.

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Thank you from the Counsel/Co-Counsel Program

The Faculty of Federal Advocates Counsel/Co-Counsel Program wishes to thank David Lane of Kilmer & Lane, Brett Painter of Davis Graham & Stubbs, Brian Petroff of Stultheit & Gartland, and Sean Velarde of Burns Figa & Will for accepting cases this year as part of the program. The program provides needed legal representation to pro se litigants in cases referred by the U.S. District Court.

Through the program, experienced mentor attorneys are paired with attorneys with less experience in federal court. This provides a unique learning opportunity for a newer attorney and allows a mentor lawyer to take a case with the assistance of co-counsel.

If you are interested in handling a case, please contact FFA Administrator Patricia Murphy at
303-455-0927 or U.S. District Court Chief Deputy Clerk Steve Ehrlich at 303-844-3433.

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Thank you to the Bankruptcy Pro Bono Program and Bankruptcy Liaison Committee

The Faculty of Federal Advocates wishes to thank Hal Lewis and John Smiley of Lindquist & Vennum for their service as the Bankruptcy Pro Bono Program Coordinators and Administrator Candy Jones, whose services have been generously contributed by Lindquist & Vennum.

The program focuses on representing debtors whose discharges are called into question, and the cases are usually handled by two lawyers with different levels of experience. Participating lawyers are enthusiastic about the contribution they make and the experience they receive. If you would like to participate in this program, please contact Candy Jones at 303-573-5900.

The Faculty also wishes to thank Tom Connolly for his work as Chair of the Bankruptcy Liaison Committee. The committee assists the Bankruptcy Court with administrative issues and presents the annual Bankruptcy Bench-Bar Roundtable. The roundtable provides bankruptcy lawyers with an opportunity to meet with the Bankruptcy Judges for a discussion about topics of interest to both court and counsel. And past participants has recommended it as a positive experience for everyone involved.

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