The Chicago chapter of the Federal Bar Association is hosting a CLE program designed to introduce the Northern District of Illinois’ newest magistrate judges on Tuesday, February 25, 2020 from 12pm until 1:30pm. Lunch will be provided, along with 1.25 hours of credit, pending approval. The event is being hosted at the Chicago Bar Association,
As part of the Northern District of Illinois’ continuing 200th anniversary celebration, the Northern District of Illinois Court Historical Association, the Seventh Circuit Bar Association, and the Federal Bar Association are hosting a program on March 20, 2019 from 3:00-4:30 pm CT in courtroom 2525 highlighting federal judicial trailblazers:
- Chief Judge Ruben Castillo –
The Northern District and the Chicago Chapter of the Federal Bar Association are seeking nominations (by March 12, 2018) for attorneys who have provided outstanding pro bono and public interest representation in civil and criminal matters before the Northern District that are complete and no longer pending. In the words of the Northern District:
The Northern District and the Chicago Chapter of the Federal Bar Association are seeking nominations (by April 3, 2015) for attorneys who have provided outstanding pro bono and public interest representation in civil and criminal matters before the Northern District that are complete and no longer pending. In the words of the Northern District:
The Federal Bar Association — an excellent group that is worth joining (disclosure: I am a member) — recently held a panel of Northern District judges. Here are my notes regarding Judge Kendall’s comments:
Judge Kendall will allow parties to appear by phone, if there is a legitimate conflict or need, but prefers not to hear counsel ordering a latte during a hearing.
She pointed out that an average district judge has a docket of 300 civil and 100 criminal cases, with about 100 pending motions.
Judge Kendall scans briefs as they come in and meets clerks formally every two weeks to discuss the direction of opinions. Noted that many motions are straightforward to decide.
Judge Kendall has sidebars with jurors either if a juror has private information to share or if a juror has very strong feelings on any question. Sidebars avoid problems, and lawyers tend to be more human during sidebars. Sidebars also allow lawyers to ask questions that they may not be able to in open court.
The Federal Bar Association – an excellent group that is worth joining (disclosure: I am a member) – recently held a panel of Northern District judges. Here are my notes regarding Judge Zagel’s comments:
The most valuable cost control tool Judge Zagel has found is an early deposition, often of a 30(b)(6) designee, allowing for a second deposition later in the case. The early deposition tends to narrow discovery and case issues.
Clerks write first drafts of Judge Zagel’s opinions, with one clerk taking even cases and the other taking odd numbered cases. Clerks can write first drafts because a majority of cases are inadequately prosecuted or defended and, therefore, do not result in motions that are difficult, close calls.
Judge Zagel writes 10-15% of his own opinions.
Judge Zagel does voir dire by himself. Counsel do not ask questions.
The Federal Bar Association – an excellent group that is worth joining (disclosure: I am a member) – recently held a panel of Northern District judges. Here are my notes regarding Judge Pallmeyer’s comments:
Judge Pallmeyer does not like hearings by phone, but will allow them in appropriate circumstances.
She reads briefs as they come in, but has clerks write some opinions. She also avoids unnecessary opinions.
When possible and appropriate, Judge Pallmeyer encourages live argument and immediate decision. So, show up for hearings prepared to argue.
Judge Pallmeyer uses a two-page questionnaire tailored to each case for voir dire. She then asks follow up and gives counsel brief opportunities to follow up, followed by preemptory challenges.
Congress is currently considering revision Rule 11 sanctions, including:
Removing the existing 21 day “safe harbor” provision which requires that you send your motion to the opposing party and give them 21 days to remedy the alleged Rule 11 violation before filing the motion with the Court; and
Making an award of fees and costs related to a winning Rule 11 motion automatic, instead of discretionary.
The Federal Bar Association (of which I am a member) has published a call for comment that sets out both sides of the issue well. It follows below. I can understand the inclination to make fees and costs automatic, but the 21 day “safe harbor” serves a valuable gatekeeping role. It avoid clogging the federal courts with Rule 11 motions that could be fixed with notice of the alleged deficiency.
Proposed Amendments in H.R. 966
The H.R. 966 bill would repeal amendments that the Judicial Conference of the United States proposed for adoption effective in 1993, thereby in part reinstating an earlier version of Rule 11 that had been in force between 1983 and 1993. It would also add a new provision for punitive monetary sanctions to be paid into court.
Under the bill, there would no longer be a “safe harbor” provision that allows an adverse party to withdraw or modify a challenged pleading or other paper before a sanctions motion can be filed or otherwise presented to the court. See Fed. R. Civ. P. 11(c)(2). That safe harbor clause was adopted effective in 1993.
The bill would also provide that sanctions awards would once again be mandatory, rather than discretionary, in cases where a court has found that a pleading or other paper was signed without adequate factual or legal grounds. Sanctions had been mandatory from 1983 to 1993. The bill would specify that, in addition to any other sanctions the court might impose, “the sanction shall consist of an order to pay to the party or parties the amount of the reasonable expenses incurred as a direct result of the violation, including reasonable attorneys’ fees and costs.”
In doing so, the bill would repeal the current provision in Rule 11(c)(2) that that fees and costs “may” be awarded “if warranted.” In place of that provision, the bill would further authorize punitive monetary awards, to be paid into the court, “if warranted for effective deterrence.”
Testimony Supporting and Opposing the H.R. 966 Bill
According to testimony on behalf of the National Federation of Independent Business and the U.S. Chamber Institute for Legal Reform, the changes are necessary because frivolous lawsuits and staggering litigation costs are creating a climate of fear for America’s small businesses. In their view, the current “safe harbor” means that preparing a motion for sanctions may serve only to increase the costs for the moving party – which is, generally, the defendant. And even if a plaintiff does not withdraw his or her claims for relief, and even if the court finds them to be frivolous, the discretionary nature of the current sanctions provision means that the court may choose not to impose any sanction other than dismissing the case. These trade associations also believe that the current version of Rule 11 discourages judges from imposing sanctions for the purpose of compensating defendants for their attorney’s fees and costs.
In opposition to the H.R. 966 bill, a professor at the University of Houston Law Center has testified that the 1993 amendments of Rule 11 were adopted in the face of studies suggesting that the 1983 version of Rule 11 was deterring the filing of meritorious cases. Additionally, in practice, civil rights and employment discrimination plaintiffs were impacted the most severely under the earlier version of Rule 11 as adopted in 1983. Studies also showed that plaintiffs had been the targets of sanctions far more often than defendants, even though the terms of Rule 11 apply to all pleadings and other papers – including a defendant’s answer containing denials and affirmative defenses. Scholars and practitioners had noted that the 1983 version actually increased costs and delays by encouraging “the Rambo-like use of Rule 11 by too many lawyers,” and that the resulting increase in sanctions-oriented motions practice had led to a breakdown of civility and professionalism. This professor cited a 1991 study by the Federal Judicial Center, which revealed that few judges polled thought the then-current 1983 version of the rule was “very effective” in deterring groundless pleadings. In a 2005 survey of 278 district judges polled by the Federal Judicial Center, more than 80% of the judges said that “Rule 11 is needed and it is just right as it stands now.”
Call for Comment and Proposals from the Federal Litigation Bar
The Committee on Federal Rules of Civil Procedure and Trial Practice seeks your comments. Comments may be submitted concerning any of the proposed revisions contained in the H.R. 966 bill; or concerning any other proposals to modify Rule 11; or concerning whether to retain the text of Rule 11 as currently in force. We also welcome any other proposals that are germane to the application or purposes of Rule 11. Upon request, we will handle any comment as confidential. Anonymous comments will also be accepted.
Rob Kohn and John McCarthy are co-chairs of the Committee on Federal Rules of Civil Procedure and Trial Practice. Kohn is also the Secretary and Treasurer of the Federal Litigation Section; and McCarthy is Chapter President of the Southern District of New York chapter of the FBA. Kohn may be reached at email@example.com. McCarthy may be reached at firstname.lastname@example.org.
The Federal Bar Association – an excellent group that is worth joining (disclosure: I am a member) – recently held a panel of Northern District judges discussing their chambers and tips for counsel. Here are my notes regarding Judge Dow’s comments:
Judge Dow allows counsel to appear by phone; sometimes even encourages it for remote counsel and less complex hearings and status conferences.
He started out writing all of his own opinions, but now writes some and has clerks draft some, with interaction as clerks have questions.
For voir dire, Judge Dow uses a brief questionnaire tailored to the case, followed by follow- up questions from the Court and the counsel.
In late January, the Northern District’s six newest judges attended a Federal Bar Association* panel to offer insights into their practices and chambers. The recurring theme of the discussion was a call for civility: Civility in court. Civility in briefs. Civility in emails. Over the next several weeks, I will provide summaries of each judge’s comments and insights. This post (the sixth in the series) focuses upon Judge Coleman:
Do not argue when the Court is not expecting argument
Consent to magistrates
Often does not require argument of motions, but gives a ruling date
For arguments, she will often identify issues to be addressed
Arguments are 15-30 minutes, “tops.”