GPSolo Magazine - March 2005

Trial Practice

What Persuades When The Judge Has Discretion?

Once a lawsuit is filed, the first, best, and likely only practical opportunity to obtain justice for your client rests with the trial judge. Statistics tell us that approximately 2 percent of federal cases are tried to a jury. Trial judges determine the vast majority of cases. If those numbers are coupled with the broad discretion accorded trial judges, a lawyer may profitably look at what persuades the trial judge in discretionary matters.

Judicial discretion may be a more powerful influence on the big-picture administration of justice than I ever have acknowledged to myself. Seventh Circuit decisions from January 1 to May 1, 2004, show that during this period, the court of appeals deferred to the district courts on a wide variety of issues: denial of discovery; denial of amendments to pleadings; non-joinder of claimed indispensable party; not entering default against a party in default; dismissal for lack of prosecution; empanelling a jury; jury instructions; admission and exclusion of evidence; denial of motion for new trial; denial of relief from judgment; denial of transcript to indigent defendant; denial of fingerprint expert to indigent defendant; failure to review of state court transcript on habeas petition; reduction of damages based on good faith defense; award of and amount of attorney fees; calculations under the sentencing guidelines; decision to depart upwards; denial of evidentiary hearing on sentencing issue; and imposition of conditions of supervised release.

Among all these cases, the court reversed for abuse of discretion only four times: a grant of a permanent injunction; an order to an American parent corporation to produce documents from its foreign subsidiary for use in foreign litigation; a refusal to vacate a void judgment; and a denial of a continuance to allow the government to supplement the record in support of applying a sentencing enhancement.

In the Seventh Circuit’s view, a mistake by the trial judge is not enough to warrant reversal on a discretionary decision. The court explained: An abuse of discretion is a decision “that is not just clearly incorrect but downright unreasonable.” Whether or not “unreasonable” and “downright unreasonable” are different, they have different connotations. The court is more emphatic where, as in discovery or motions for relief from judgment, it is least likely to overrule the district judge. In other contexts, it is more likely to allow a judge’s ruling to stand unless no reasonable person could have acted as the judge did.

The inclination to defer to the district court likely stems from the reality that entertaining a limitless number of appeals on countless day-to-day decisions would overwhelm the appellate courts and detract from their important role in shaping the development of the law.

In short, the responsibility rests on the trial judge to be at least as reasonable as the hypothetical “reasonable person.”

What insight do I have about what persuades a judge to exercise discretion one way or another? My talisman is Rule 1 of the Federal Rules of Civil Procedure. Unlike the advocate, who is strategizing for a favorable result for the client, the judge seeks a result that will advance the “just, speedy, and inexpensive determination” of the litigation. I’ll discuss just, speedy, and inexpensive in reverse order.

Inexpensive. In an employment discrimination case brought before my court, the plaintiffs moved to compel discovery of supervisors’ e-mails that had been “deleted” but of course remained on the employer’s backup files. Understandably, the plaintiff needed to mine for motive and intent and was suspicious that those deleted files contained the “real” truth. The defendant argued the plaintiffs had no indication that any arguably relevant evidence could be found in the backup files, accusing the plaintiffs of looking for a needle in a haystack. Neither argument was persuasive. The defendant added to its side of the scale an affidavit of a computer technician setting out the anticipated million-dollar cost of performing a search based on approximately 2,000 hours of labor. The cost-benefit ratio gave me pause. Did the likelihood that anything would be found justify the expense involved? Not likely, I thought, in this instance. Then I thought of the wastebasket. Indeed, the icon for “delete” is a wastebasket.

Have you ever known a judge to send respondents to a landfill to look for discarded mail? I have done this—not to the landfill but to the backup file examination. In one case, a party demonstrated that the opposing party, after receiving discovery requests, deleted documents from his computer files. No cost-benefit analysis could rescue such a defendant. Proof of skullduggery is not required, but a reasonable argument is needed to lead me, the reasonable person, to believe that the backup files are sufficiently likely to contain relevant evidence that the costly intrusion is justified.

Speedy. Since passage of the Civil Justice Reform Act, judges report cases pending more than three years and motions pending more than six months. Although the judge suffers no sanctions for cases or motions reported, the requirement provides an incentive to stay current. To do that, judges need cooperation from counsel.

However, delay in litigation may serve a party’s interest, or counsel simply may be unable or unwilling to accomplish the demands of the court’s schedule. Here, past is prologue. The judge is aware that routinely granting exceptions sends a message that exceptions are easy to get. But if an attorney is known for conscientiousness, an exceptional motion for an exception is easy to grant. If the contrary is true, persuasion is more difficult, particularly where the opponent is able to articulate prejudice.

This is where an attorney’s credibility plays its largest role. On the whole, what counsel argues on the merits is what matters, but where she is asking for a concession, past performance persuades whether a break is appropriate. Even here, however, the outcome must be just. If a bit of delay will impose little harm on the other party but remove a substantial hardship on the movant, an extension of time may be granted. My task in managing the case is to find where the defendant’s interest in resolving its liability merges with the plaintiff’s interest in maximizing the award and with the administration of justice’s interest in a speedy resolution.

Just. The first-stated goal of Rule 1 is the just determination of every case. Judges are guided by what other judges have done in similar situations, by the force of reason as to whether the situation presented should be treated differently, and inevitably by our own views of what best serves the interest of justice. Justice includes even-handedness in relation to what other judges have done in similar circumstances and what I have done in similar circumstances. Other discretionary decisions inform the present one.

Persuasion toward a favorable exercise of discretion includes preparation, sound reason, and respect for the opponent’s position. I occasionally remind lawyers that I am the person who knows the least about their case, the people involved, and the events that brought them to my courtroom. The lawyer’s job is to shed light at each opportunity in an effort to obtain the correct result under the law and the facts.

The Honorable Joan Humphrey Lefkow is on the U.S. District Court for the Northern District of Illinois.

For More Information about the Section of Litigation

- This article is an abridged and edited version of one that originally appeared page 21 of Litigation, Fall 2004 (31:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/litigation/.

- Periodicals: Litigation, quarterly journal; Litigation News, bimonthly newsletter; Litigation Update, monthly e-mail newsletter; committee newsletters (all Section members may join three committees at no additional cost).

- Books and Other Recent Publications: More than 30 titles in print, including Discovery Problems and Their Solutions; Electronic Evidence: Law and Practice; Model Jury Instructions: Patent Litigation; Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed.; Model Witness Examinations, 2d ed.; The Trial Lawyer: What It Takes to Win; Internal Corporate Investigations, 2d ed.; Fighting Injustice (Michael Tigar); The Attorney-Client Privilege and the Work-Product Doctrine, 4th ed.; The Winning Argument; Persuasion: The Litigator’s Art; The Litigation Manual, 3d ed.; McElhaney’s Trial Notebook, 3d ed.; Model Jury Instructions: Construction Litigation.

 

 

 

 

 

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