From Convincing the Judge
- How frequently should status conferences occur?
- What are the most useful pre-trial procedures?
There was a time when documents were few, discovery was limited, and cases were tried quickly. Now, however, judicial management is incredibly important; without it, a case simply may not proceed. Discovery, for example, can seriously delay a case, consume a litigant’s resources, and in the end, turn out to be completely useless. Lawyers can become so involved in the details of discovery that they forget about the main issues of the case.
Most judges see discovery management as the most important aspect of litigation. Their goals are that each party obtain relevant discovery without undue cost, that neither party is overwhelmed by irrelevant discovery, that the discovery process takes place with reasonable speed, and that discovery is conducted professionally.
Being a good case manager is more difficult in practice than theory. Most judges find that a management plan is only the beginning. Thus, they hold regular status conferences, set tight schedules for serving discovery, require responses to be served in a timely manner, request counsel to promptly file motions to compel if discovery is not forthcoming, and impose rigid deposition schedules.
All judges prefer to resolve disputes informally, and they strive to decide discovery motions promptly if possible. Many judges find that frequent status conferences are helpful. They learn that it is impossible for the parties to put a case on the backburner when the progress of the case must be reported regularly to the court. Periodic conferences require that problems be dealt with promptly. Judges find that when lawyers know they are being monitored, they are far less likely to play games.
The courts, however, have trouble accomplishing good case management without cooperative counsel. As a result, they are wary of litigators who believe the rules of procedure are weapons in a war of attrition and that delay and confusion are legitimate methods of battle. Your job is not to become one of those litigators.
Moving the Case Along
Judges are clear in their desire that the parties should be prepared at the pre-trial conference to discuss evidentiary problems. They appreciate counsel who suggest ways to deal with the evidentiary issues likely to present themselves in the particular case before the court.
Where bulky or voluminous exhibits are involved, the judge may require submission of extracts or summaries on the condition that underlying documents be made available for cross-examination. Cumulative and unnecessary exhibits can be eliminated. Pre-trial designation and exchange will also reduce the time required at trial for admission of documents into evidence.
Some judges require the parties to present the direct testimony of certain witnesses by written narrative statements exchanged before trial. This procedure, appropriate for trials in complicated cases where witness credibility is not a critical issue, often makes for a better record and more effective cross-examination.
Judges often find that discussing routine procedural matters—such as jury selection, scheduling of witnesses, and handling of demonstrative evidence—avoids surprise, confusion, and delay at trial. The pre-trial conference, in effect, is a preview of each party’s trial presentation, paring it down to its essentials and anticipating as many problems as possible.
Effective Judicial Oversight
When a pre-trial motion may dispose of all or part of the controversy, the judge will set filing and hearing dates. If an early settlement is a possibility, the judge will often arrange another conference and urge the parties to concentrate their efforts on settlement. Where a trial appears likely, the judge will establish discovery deadlines, pre-trial conferences, and the date for trial.
The facts, the parties, and the counsel in each case are unique, so the court adjusts the schedule accordingly. Most judges will hold status conferences either when requested by a party or when it appears that problems are developing, particularly in connection with discovery. By handling discovery disputes informally, the court can often quickly resolve them.
Of course, not all discovery disputes can be handled without motions. But by simply being accessible, the court may prevent problems. For example, refusal to answer a question in a deposition may be quickly resolved by a telephone conference with the judge. The availability of the court to grant appropriate relief removes much of the incentive to abuse discovery procedures either by burdensome demands or recalcitrant responses.
Judges say they find that the proper use of status conferences has a dramatic effect on their motion calendar. Many disputes that might have generated motions are resolved because the attorneys are aware that the court is readily available to make a decision if a party maintains an unreasonable position.
There is a touch of irony in judicial case management. In most cases, the more it is needed, the less effectively it will be executed. This is because the most effective management tool is the prospect of an early trial, and that possibility becomes more remote as the court’s docket grows in size.
Judges contend that it is therefore essential that cases that go to trial be tried as quickly and efficiently as possible. Meaningful pre-trial procedures help attain that goal by avoiding cumbersome and repetitive matters.