BEST PRACTICES FOR CIVIL LAWYERS

-SMOOTH SAILING IN THE SOMETIMES CHOPPY WATERS OF FEDERAL COURT-

Magistrate Judge Michelle H. Burns District of Arizona [email protected]

602-322-7610

Rules, Rules, and More Rules

• Judges’ favorites: *Rule 1, Fed.R.Civ.P. *Rule 102, Fed.R.Evid.

*Rule 403, Fed.R.Evid. Keep em’ smiling!

Fed.R.Civ.P. 1

• • • “Rules should be administered to secure the just, speedy, and inexpensive determination of every action and proceeding” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) Dismissing Complaint that fails to state a claim is proper means to bring about just, speedy, and inexpensive determination of every action as mandated by the Federal Rules of Civil Procedure. Boschette v. Bach, 925 F.Supp. 100, 101 (D.Puerto

Rico 1996)

Fed.R.Evid. 102

• • “These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” District judge was not required to allow evidence, as “to do so would have been an unjustifiable expense and delay.” U.S. v. Mitov, 460 F.3d 901, 909 (7 th Cir. 2006).

Fed.R.Evid. 403

• • “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” A district court has broad discretion in assessing admissibility under Rule 403. U.S. v. Morris, 79 F.3d 409, 412 (5 th Cir. 409).

Other Rules

• • • Local Rules of Practice General Orders – District Website Judges’ Form Orders – District Website www.azd.uscourts.gov

Pleading Practice

• • Complaint – surviving in the new world.

Bell Atlantic v. Twombly, 550 U.S. 544 (2007)/Ashcroft v. Iqbal, 556 U.S. ___ (2009) • Heightened pleading standards • More than recitation of elements of cause of action • From “short and plain statement” and “notice pleading” to “plausibility,” “factual vs. conclusory allegations”

Use of Form Complaints

• Fed.R.Civ.P. Appendix of Forms (2007, pre Iqbal/Twombly.

• Case finding Complaint sufficient because of conformance with Forms. Clear with Computers, LLC v. Bergdorf Goodman, Inc., 2010 WL 3155888 (E.D. Tex., 2010) (Defendants’ argument – that the generic pleading of patent cases is no longer sufficient under Iqbal – would render Rule 84 and Form 18 invalid).

• Case finding viability “cast into doubt by Iqbal.” Anthony v. Harmon, 2009 WL 4282027 (E.D. Cal. 2009).

Motions to Dismiss

• • • • Rule 12(b)(6), Failure to State a Claim: should be raised before pleading if responsive pleading is allowed, can be raised up to and including trial Rule 12(h), may be raised up to and including trial Rule 12(c), Judgment on the Pleadings: must be filed “early enough not to delay trial” Rule 56, Motion for Summary Judgment

Pleadings Generally

• • • State clearly what relief you are seeking, at the beginning, and then at the end of your pleading Detail in your proposed order more than “granting P/D’s motion,” if the court will be deciding more than one one claim Contain the superlatives, if not delete altogether, no matter how much outrage you may feel

Common Pleading Issues

• Sealing Documents – not perfunctory.

• • “Compelling reason” test applies to most judicial records. To obtain protective order, burden on movant to show good cause. Fed.R.Civ.P. 26(c).

Motions for Reconsideration – must have new facts or law that COULD NOT have been raised before with reasonable diligence.

Requesting Oral Argument. Patridge v. Reich, 141 F.3d 920, 926 (9 th Cir. 1998) (request for oral argument denied because the parties have fully briefed the issues and oral argument will not aid in the Court’s decision)

Rule 16 Conferences

• Meet-and-Confer: not intended to be perfunctory. Fed.R.Civ.P. 26(c).

• Parties required to meet and confer to lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants, through promotion of informal, extrajudicial resolution of discovery disputes. Liberty Mut. Ins. Group v. Panelized Structures, Inc., 2011 WL 4527388 (D.Nev. 2011) Discuss Consent to Magistrate Judge

Rule 16 Report

• • • • What do you expect to prove and how How do you expect to defeat claims What are the damages and how will they be proven Early resolution of non-fact motions (if not already raised): jurisdiction, statute of limitations, administrative exhaustion

Final Pretrial Conference

• • • Consider it a dress rehearsal for trial Discuss motions in limine: give a clear outline of how the resolution will impact the efficiency of the trial Be prepared to outline for the judge the amount of trial time needed for each phase of the trial and explain why

Settlement Conference

• Discuss early on • • • Decide what forum would work best for your case: private mediation, Magistrate Judge, binding arbitration If Magistrate Judge, inquire if summary jury trial is available Make sure client WANTS to settle his/her case

Settlement Conference before Magistrate Judge • • • Settlement Memorandum: be thorough but don’t burden the judge with lengthy argument or attachments Review opposing counsel memorandum with your client. Explain what your client doesn’t understand Sand down the client who tends to righteous indignation – explain decorum, professionalism

Decorum

• • • • • Dress code Addressing the court: from the table or podium Social media policy Judges’ pet peeves Educate yourself: check the court’s website, talk to lawyers who have practiced in the court, join the local chapter of the Federal Bar Association

Contacting Chambers

• • • Generally, TC to chambers are permitted in emergency situations requiring immediate attention.

Always be friendly and respectful.

-Notice to Court of tardy appearance.

-What is the Court’s policy on telephonic appearances?

-All counsel wish to schedule a telephonic discovery dispute conference.

-Request for Courtroom set-up and equipment.*

Making a Mistake – Own Up!

• Worst course of action is no action • • • • • Immediately notify court Immediately correspond with opposing counsel Fall on the Sword: apologize for taking the time of the court and counsel Sanctions: Rules 11, 16, 26, 37, 56(h) Fed.R.Civ.P.

Good faith, harmless error

Epilogue “To present your case so clearly, so quickly, and so forcefully to forestall any questions which might arise in the judge’s mind before the question could be asked.”