Redefining Case Management: A Federal Judge Perspective
How do I spend most of my time as a federal court district judge? The best part of my job is presiding at a trial with good trial lawyers. But unfortunately that does not happen as often as I would like both because there has been a decline in trials and, with that, a decline in lawyers who have trial experience.
So most of my time is spent on pretrial matters and much of that time is spent encouraging the lawyers to talk with each other. More formally, we call it “meet and confer.” For some time, judges in my District have asked the lawyers to meet and confer when they have a discovery dispute. Instead of filing a motion, we ask them to set forth their disagreement in a short writing—email or fax—and the matter is usually resolved that day or the next. This process has worked well in our District for many years and is now part of the Federal Civil Rules. Most of these discovery disputes are resolved quickly—with less time and expense than the more formal approach. And, of course, it is easy to make a record of the dispute and its resolution, if needed for appeal purposes.
In my latest Civil Case Management Procedures, I invoke the meet and confer requirement on the filing of any motion—including motions to dismiss and summary judgment. Some lawyers are reluctant to give opposing counsel a heads up on the merits of the motion. But today, with a “turn your cards up” approach to civil case management, I tell them they may find the opposing party is willing to agree to some of the points and thereby reduce the scope of the motion. Often times, after some discovery, plaintiffs will voluntarily dismiss certain claims or counts, or defendants will not pursue certain affirmative defenses. And, if the dispositive motion seeks to address a deficiency in a complaint, this allows a plaintiff to amend the complaint before three rounds of briefing. Most judges will allow amendment following formal motion practice, so why not save time and money?
The goal of Federal Civil Rule 1 is the “just, speedy, and inexpensive” resolution of cases. To do this, a judge must be flexible in his or her approach. Each case is different, and one size does not fit all. The meet and confer requirement allows counsel for the parties to highlight what may be special about their case and may require special treatment by the judge. And, of course, the judge has an obligation, once a motion is decisional, to rule on it expeditiously. Managing a case through the court system is the joint responsibility of the lawyers and the judge’s chambers. This is a key takeaway from IAALS’ recent Redefining Case Management publication, which recognizes that attorneys “play a central role in case management—they are essential partners in ensuring a ‘just, speedy, and inexpensive resolution.’” Easy access to the judge is part of the answer to an efficient system for handling lawsuits. And the judge sets the tone. By encouraging counsel to cooperate, the judge is merely reinforcing the role that each lawyer should play. After all, if the parties could speak directly with each other and resolve the dispute, there would be no need for the lawsuit. And if the lawyers cannot talk with each other, they cannot effectively represent their respective clients.