Tag Archives: Federal Bar Association

N.D. Illinois Judges Panel: Judge Kendall

By R. David Donoghue on Posted in Legal News
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. … Continue Reading

N.D. Illinois Judicial Panel: Judge Zagel

By R. David Donoghue on Posted in Legal News
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. … Continue Reading

N.D. Illinois Judicial Panel: Judge Pallmeyer

By R. David Donoghue on Posted in Legal News
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. … Continue Reading

Congress Considers Changes to Rule 11 Sanctions

By R. David Donoghue on Posted in Federal Rules
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 rkohn@kohnlawgroup.com. McCarthy may be reached at jmccarthy@sgrlaw.com. … Continue Reading

N.D. Illinois Judicial Panel: Judge Dow

By R. David Donoghue on Posted in Legal News
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. … Continue Reading

New N.D. Illinois Judges Panel: Judge Coleman

By R. David Donoghue on Posted in Legal News
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: "Come prepared" Do not argue when the Court is not expecting argument Civility 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." … Continue Reading

New N.D. Illinois Judges Panel: Judge Kim

By R. David Donoghue on Posted in Legal News
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 fifth in the series) focuses upon Magistrate Judge Kim: Be civil in court and in your papers. Do not include extraneous emails or exhibits to score points. They do not work. Tell your story in your answer, do not just deny. Rule 56.1 statements: short and concise facts. … Continue Reading

New N.D. Illinois Judges Panel: Judge Feinerman

By R. David Donoghue on Posted in Legal News
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 third in the series) focuses upon Judge Fienerman: Allege diversity jurisdiction properly (watch corporate entities) Assume he has read the papers when arguing Be prepared to argue motions when noticed Answer the question the court asks: If it is a yes or no question, the answer should start with "yes", "no" or "I cannot answer that because. . . ." Jury trials: respect juries and use humor sparingly … Continue Reading

New N.D. Illinois Judges Panel: Judge Finnegan

By R. David Donoghue on Posted in Legal News
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 third in the series) focuses upon Magistrate Judge Finnegan: Discuss ways to streamline cases early Plan early discovery to focus issues and settlement conferences Will sometimes meet counsel without clients before a full settlement conference Follow Seventh Circuit E-Discovery Program … Continue Reading

New N.D. Illinois Judges Panel: Judge Chang

By R. David Donoghue on Posted in Legal News
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 second nin the series) focuses upon Judge Chang (a University of Michigan aerospace engineer like me Go Blue!): Send someone to hearings that knows the case and/or motions. Civility: Do not casually suggest misconduct; avoid work like "fabricated," "concocted" or "misleading". Rule 56 motions: omit unnecessary details and "use brevity." … Continue Reading

Eleventh Annual Pro Bono and Public Interest Awards

By R. David Donoghue on Posted in Legal News
The Northern District and the Federal Bar Association are seeking nominations for excellence in pro bono and public interest work. Nominations should be based upon work performed in civil cases before the Northern District which are no longer pending. Nominations should include: the name and address of the nominee; a brief resume; the complete case title; case number and judge for each case; the work done by the nominee on the cases; and the brief summary of the reasons you believe the nominees pro bono work has been outstanding. Send nominations via email by next Wednesday, April 14 to ProBono2010_ILND@ilnd.uscourts.gov. Contact the Chambers of Chief Judge James F. Holderman with any questions. … Continue Reading

Northern District’s Ninth Annual Pro Bono & Public Interest Awards

By R. David Donoghue on Posted in Legal News
The Northern District of Illinois and Chicago's Federal Bar Association chapter are hosting their Ninth Annual Awards for Excellence in Pro Bono and Public Interest Service awards program this Tuesday, May 13 beginning at 3:30 pm in the James Benton Parsons Memorial Courtroom (2525) of the Dirksen United States Courthouse at 219 South Dearborn Street. The program is open to everyone and is free of charge. The keynote speaker will be William Neukom, the President of the ABA and partner in K&L Gates. Prior to his private practice, Neukom was executive vice president of Law and Corporate Affairs for Microsoft, where he managed Microsoft's legal, government affairs and philanthropic activities. Seven "Awards for Excellence in Pro Bono and Public Interest Service" and one "Special Recognition Award for Public Interest Service" will be presented to the following Chicago-area lawyers for their pro bono and public interest work before the Northern District: Sara C. Arroyo and Rosa M. Tumialán, of Dykema Gossett PLLC (presented by the Judge Coar); Anthony J. Masciopinto, of Kulwin, Masciopinto & Kulwin, LLP (presented by Judge Manning); Myron Mackoff, of Richardson & Mackoff (presented by the Chief Judge Holderman and Magistrate Judge Valdez); Joshua D. Lee and Amy M. Rubenstein, of Schiff Hardin LLP (presented by the Judge Brown); Catherine Caporusso and Margot Klein, of the Federal District Court's Self-Help Assistance Program (presented by Judge Hibbler); David A. Gordon, Michael B. Nadler, and Kristen R. Seeger, of Sidley Austin LLP (presented by Magistrate Judge Schenkier); Lisa R. Kane, of Lisa Kane & Associates, PC (presented by Chief Judge Holderman); and Richard J. Gonzales, Clinical Professor of Law, Chicago-Kent (presented by Chief Judge Holderman). … Continue Reading
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