Why not institute a “Motion Day” each week for civil cases?

In response to my recent post soliciting advice about whether I should use Twitter in conjunction with this blog, Vince Powers, a really good Nebraska civil trial lawyer, made the following comment and suggestion:

Why not institute a Motion day every week.? Let lawyers practice their craft of persuasion and as sometimes happen, talk about events in the community and in their lives.

Cyber Court is not good for the parties or the lawyers, and I wonder how it is for the judges? While I don’t know for sure but I think trial judges like the interaction with lawyers. Tweeting face to face without smart phones, its all good.

If opposing lawyers actually have to meet now and then, its becomes harder to be rude and obnoxious as opposed to the easy ability to insult in faceless emails and legal papers. As Cyber Court grows, so does the decline in civility. Prosecutors and defense counsel see each fairly often, I bet they they get along much better that the many civil attorneys who just read emails that begin “I will seek sanctions unless….”

Another civil trial lawyer strongly agreed and wrote:

I couldn’t agree more with Vince’s comment above about the benefits that would come about if the court instituted a motion day, or even just scheduled intermittent status conferences so that the practitioners had an opportunity to (a) see each other, and (b) see their Article III judge before the first day of trial. (It also is crazy to me that the Article III judges require the magistrates to handle pretrial conferences; they have no authority to do anything, and an opportunity is lost to work through some critical issues that will now possibly be sprung on the Article III judge for the first time at trial).

In addition to the reasons Vince mentioned above about the value of a motion day, I also think that it would enable the parties to buy into the process more so than is now possible. While there are many sophisticated corporate parties in federal court, there are also many unsophisticated parties who don’t understand the process. It is much easier for them to accept defeat, or a harsh ruling, if they were able to walk into the courtroom, see the judge who is deciding the issue, and see their counsel argue on their behalf. When decisions are made based on papers alone, it is hard for many unsophisticated clients to accept those rulings. And frankly, it is also hard for some of the sophisticated clients to take, when they don’t know if the Article III judge understood the issue, or if a law clerk decided the issue and it received only brief attention from the judge.

I suspect that the inability to actually appear in court, and the inability to see your Article III judge before the first day of trial, is one of the reasons why civil filings have fallen off over the past decade.

No doubt it would take an investment of time from the bench to make this work, but I think it would be a wise investment…

These comments are serious. They deserve a serious response. 

I don’t believe a “Motion Day” is practical in the District of Nebraska. Here is the short list of my reasons why I think that is so:

  1. To begin with, I practiced law in the state courts of central Nebraska for 13 years under a “docket call” regime where periodically all the lawyers would assemble, sitting in the jury box and elsewhere, waiting for the judge to call their case to discuss the status of the matter and pending motions. You could be in court a half day or more waiting patiently to have your case called. More often than not, not much happened that advanced the resolution of the case. While I enjoyed gossiping with my lawyer friends and complaining about the judge (in hushed voices) at the same time, those “docket calls” were a monumental waste of everyone’s time. So, I have long held a jaundiced view of “Motion Days.”
  2. Despite my jaundiced view, shortly after I became a federal district judge, I attempted to decide summary judgment motions from the bench during a series of “Motion Days” where I scheduled several motions for resolution in back-to-back hearings. To my dismay, I found that I almost always had adjourn the matter without resolution and go back into the papers after the lawyers’ oral presentations to determine what facts were truly disputed. The oral presentations often contradicted the briefs or added factual points that were not briefed or supported by the record. That was particularly true when I pushed the lawyers about a specific factual detail. Since the federal practice frequently requires a reasoned written opinion or a detailed oral statement if the decision is announced from the bench, the extra time devoted to “Motion Days” turned out to be unproductive. I wasn’t moving summary judgment motions any faster (or better). On the contrary, I was delaying the resolution of them. That is even more of an issue now. Our internal procedures demand that we strive mightily to resolve summary judgment motions very fast, normally within 60 days of their ripe date. Ironically, this short deadline was adopted at the urging of trial lawyers.
  3. The present system for moving federal civil cases in the District of Nebraska works well. Here, magistrate judges have control over the calendars of Article III judges. The magistrate judges also handle pretrial conferences and motions except for summary judgment motions and motions to dismiss.  They also handle most criminal motions including motions to suppress and they even take guilty pleas, a practice that is quite stunning to many of our colleagues in other districts. This typically leaves the Article III judges available for trial throughout each week. For the 12-month period ending March 31, 2013, we ranked 19th (best) in the nation and 3rd in the Circuit for getting civil cases tried speedily.  In Nebraska, you can expect to get your civil case to trial in about 20 months. Only 22 civil cases out of 726 total civil cases were older than three years. This statistic placed us in the top (fastest) third of all federal district courts.
  4. Comparatively speaking, we have an extremely heavy criminal docket which takes up much of the Nebraska Article III judge’s time. In the District of Nebraska, and to the surprise of our more urban colleagues, we have the 9th heaviest criminal load in the nation when measured by criminal felony filings per judge. (Although I am a senior judge, I take a full load of civil and criminal cases.) We rank 5th in the nation for felony supervised release violations using the same standard. So, much of our time must be devoted to our criminal docket. Take this week as an example. I am trying a criminal case to a jury. The statutory mandatory minimum prison sentence is 20 years if the defendant is convicted. During the last three days, and over the lunch break, I conducted 9 felony hearings where sentences were imposed or supervised release violations were resolved in addition to handling the criminal jury trial. As a matter of fact, I allocate 1.5 hours of time per day over the noon hour on Tuesday through Friday to sentencing and supervised release matters. The point: If I devote a day a week to holding a civil “Motion Day” surely something would have to give on my criminal docket. That is not practical. Congress has decreed that criminal cases take precedence over all other matters.
  5. Because I served as a magistrate judge for over 5 years before becoming a district judge, and because we are blessed in this district to have three magistrate judges who are truly extraordinary, I am a big proponent of using magistrate judges to the fullest extent of the law. That said, in a world without time constraints, I agree that it would be preferable for district judges to handle their own civil pretrial conferences just as it would be preferable for district judges to take their own criminal guilty pleas. But holding pretrial conferences in civil cases (or taking guilty pleas in criminal cases) makes no sense to me in the real world where time is a scarce resource. That is particularly true for civil cases where only a tiny fraction of the cases ever actually go to trial. Moreover, our magistrate judges are extremely good at calling to our attention difficult issues that may arise at trial. Still further, since I do my own motions in limine after the pretrial conferences, I am not surprised very often by difficult evidentiary issues.
  6. I like civil trial lawyers and I wish I could spend more time with them. I also agree that the modern federal approach to case  management significantly decreases the interactions Article III judges have with civil trial lawyers. Sad though it may be, that is one of the inevitable costs of our national drive for efficiency.
  7. As I have discussed elsewhere, it is true that the Nebraska’s civil docket is shrinking. While one can debate the reasons for that decline, it also provides good news for the civil trial lawyers whose cases remain in federal court. That is, we are, perhaps, on the cusp of a real opportunity for change as a result of falling civil filings. We Article III judges may be able to take a more hands on approach to civil cases as the civil docket pressure eases. For example, I have the Beatrice Six cases involving six people convicted of a murder, but later exonerated after serving long stints in prison, who claim that law enforcement officers engaged in a reckless investigation. Due in part to the falling case load, I have handled the case progression and I will be able to conduct my own pretrial conference in preparation for the complex consolidated jury trial of those six cases.

To sum up, we Nebraska Article III judges have a great gig. We are certainly not overworked. But in my opinion we don’t have time to hold “Motion Days” either.


8 responses

  1. Thank you for discussing the idea. I did not know how busy the criminal docket is in Nebraska. The increase is an issue for Congress and the Executive branch.

    As a follow up to an earlier post about the ABA and its qualifications committee, I spoke with a Past President of the American Association for Justice. They have been very concerned about the makeup of the Committee and have met with the ABA but unfortunately the ABA does not view the Committee’s makeup as problematic.

    Plaintiffs trial lawyers tend to be only members of AAJ and corporate trial attorneys are members of the ABA, so as long as the ABA is given the power to rate applicants, I doubt the ABA would want to cede any of its power to non-members. Nor would enough plaintiffs’ lawyers want to spend the $ to join another organization given the demands on lawyers’ finances in today’s world.

  2. Vince,

    Thanks for the update on the ABA and your inquiry regarding the membership of the Standing Committee on the Federal Judiciary. I am sorry about the results. I really think the ABA ought to engage in “outreach” such that real and regular plaintiffs’ trial lawyers consistently serve on the Standing Committee. I am sure the ABA makes an effort to insure that the Committee has members of minority groups. The same should go for the increasingly rare breed of plaintiffs’ trial lawyers who actually try cases but who do not make megabucks. But what the heck do I know?

    All the best.


  3. Judge Kopf, thank you for your informative discussion of this question. I certainly agree that dispositive or other major motions deserve the kind of weighty review that motion day can’t provide. At the same time, by rule the Court strongly suggests it doesn’t want to converse with civil lawyers at all – “In general the court does not allow oral argument or evidentiary hearings on motions.” (NECivR 7.1(d)).

    The alternative is not always more useful or efficient, and I would argue this is true for the Court as well as for the litigants. Movant briefs, responding parties brief 14 (or 21!) days later, movant briefs again, and all expect a careful examination of everything they submit, and this Court almost always provides a thoughtful, well-researched, and certainly time-consuming order.

    To your bench’s credit, one of the Magistrate Judges has concluded scheduling conferences with an invitation to both counsel to “call me if you have a problem.” In a similar vein, I once had a judge in the Southern District of New York say, “You had better call me before you file a discovery motion.” I really appreciated these invitations.

    Sometimes we want to write briefs and really explain things to you. Other times we just need somebody to make a call so we can get on with the case. I do think Vince Powers is right that having to look each other in the eye prevents much of the silly rhetorical escalation for which he rightly criticizes the civil practice. And some of my best experiences in 20 years of practice have come sitting in the anteroom of the chambers of State district judges, kibitzing with the court staff, the other lawyers, and sometimes the judge in propria persona.

    I have always understood that the time pressures associated with a criminal docket stemming from 450 miles of I-80 make much of that impossible in federal court. But if there were ever any way to get a call made, or even informal guidance from the Court, in a more predictable and regular manner, without the several-thousand-dollar venture of federal motion practice, I’d be in favor of it.

    Finally, for what it’s worth, as a civil guy, getting to go to federal court, even for something little, is a big deal, even after 20 years. I shine my shoes, I wear a good suit, I feel the carpet under my feet. And to Vince’s point, I straighten up and fly right. I respectfully suggest the Court could use that effect, if even occasionally, to the great advantage of the parties, the lawyers, and the judges.

  4. Rick,

    I agree with you. So, here’s an invitation to all lawyers who have cases with me. Get your opponent on the line and call me if you have a problem that you think I can resolve quicker or better than Judge Zwart. I will do my best to be responsive. Truly, I mean it.

    Regarding your shined shoes and good suits, I must say that I have not really been terribly impressed by them. Vince, on the other hand, well, you know . . . .

    All the best.


  5. Perfectly fair comments, Judge. The way D. Neb. divvies up workload between Article IIIs and Magistrates (which, by the way, I really like) makes it unlikely I would need to take you up on your invitation. That we are invited to talk to the Magistrate Judges – or anyone – despite the forbidding words of the local rules, is the important thing to me. As for the shined shoes, I’m really doing that more for me anyway. Being on my best behavior, I think, might benefit the Court, but certainly my delusions of beauty and nattiness would have no such effect.

  6. Rick,

    Of course, I was kidding about the shoes and suits. That said, I truly understand what it is like to appear in federal court and the awe such an appearance can engender. I have this memory of driving the 150 miles or so from Lexington to Lincoln and standing before Judge Urbom at the podium in Courtroom No. 1 in my best suit, and with my shoes shined. It was a case I really cared about and I was hoping against hope that I was prepared enough not to embarrass myself and harm my client. Despite the fact that this event occurred more than 30 years ago, it remains vivid still.

    We federal judges in Nebraska (and I suspect elsewhere) are very lucky. Most of the time we get the best the profession can offer, and that is very good indeed. That is true whether the lawyer wears cowboy boots or calf skin loafers from Italy.

    All the best.


  7. A belated query: can someone point me to a summary of how much variation there is within the federal court system about this sort of thing (motion practice)?

    For instance, I was recently looking at ACLU v. Clapper, which is hugely in the news lately, where the ACLU seeks an injunction to stop the NSA from recording their phone call metadata. That’s 1:13-cv-03994-WHP in the Southern District of New York, before Judge Pauley.

    In the SDNY the Art. III judges all have Individual Rules of Practice, and there is significant variation. I was reading over Judge Pauley’s, and was surprised to find this section:

    III. Motions
    A. Pre-Motion Conferences in Civil Cases.
    i. A pre-motion conference is required prior to the filing of any motion, except discovery motions; motions with a jurisdictional time limit as provided by the Federal Rules of Appellate Procedure; motions brought on by order to show cause; motions for reargument or reconsideration; motions by incarcerated pro se litigants; motions for admission pro hac vice; motions for attorneys’ fees; motions for remand; and motions to appoint lead plaintiff and lead defense counsel in securities class actions.
    ii. To request a pre-motion conference, the moving party must submit a letter, not exceeding three pages in length, setting forth the basis for the anticipated motion. Opposition letters, no longer than three pages, must be submitted to the Court within five (5) business days of receipt of the movant’s letter. Thereafter, the Court will notify the parties of the conference date.

    Now, I’m not an attorney, and I don’t live in the SDNY so my experience is limited, but I was surprised. It seems to radically differ from the practice in Nebraska. And it’s hard to imagine that the SDNY is not a busy court (though, perhaps, the per-judge load is different).

  8. John,

    I believe that there are some commercial services that provide some detail on each federal judge’s individual practices but I know of no overall summary. Sorry.

    All the best.


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