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August 30, 2012 Articles

Raising Delicate Matters with the Judge in Pending Litigation

A sitting federal judge offers 10 pieces of advice on how to handle unusual circumstances.

By Hon. Marvin Aspen

Communicating with a judge about any aspect of pending litigation is generally strictly limited, other than during a courtroom proceeding or formal motion practice. Nonetheless, there will be times in every lawyer’s career when he or she must raise some uncomfortable or unwelcome subject with a presiding judge to fulfill his or her duties as both a diligent advocate and responsible officer of the court. Often there is no formal procedure for doing so. Here are some suggestions for approaching these often delicate situations. Of course, before implementing any of these suggestions, trial counsel should make certain that local court rules, the individual judge’s published courtroom procedures, and the attorney and judicial codes of ethics applicable in the jurisdiction do not conflict with the judicial communication.

  1. Avoiding the General Prohibition of Ex Parte Communication
    First and foremost, the general rule: Never communicate with the judge ex parte about the case. Even if you need to contact chambers with a benign question, such as a simple calendaring issue, the safer approach is to do so with your opponent on the line or with his or her consent.
  2. Putting Communications in Writing
    If you must raise a matter of any substance, the proper method is to file and notice up a written motion whenever possible. If the local custom or practice in your jurisdiction is to submit motions by letter, fax, or otherwise, be sure to conform strictly to that practice and, of course, serve or copy opposing counsel.
  3. Communicating Opposing Counsel’s Unprofessionalism
    How do you let the judge know that your opponent is sandbagging discovery? Perhaps opposing counsel is failing to respond completely to your requests or is overwhelming you with voluminous but irrelevant responses. As in many discovery and other pretrial disputes, bringing the matter to the attention of the judge by motion or a written submission served on opposing counsel may be appropriate—but only after you and your opponent first have met and conferred and seriously attempted to work out your differences. Your submission, of course, should stick to the facts and should be free of any vitriol or hyperbole because the judge may not look kindly upon any party who indulges in petty or unreasonable behavior.
  4. Communicating Your Desire to Withdraw Representation
    Lawyers not uncommonly request to withdraw their representation, either due to conflicts or because their clients haven’t paid them. Although motions seeking withdrawal are strongly disfavored, they sometimes become necessary. Describing your irreconcilable differences while maintaining privilege and confidentiality is a fine line to walk. Keeping all applicable local rules and rules of professional conduct in mind, do not expose specific infirmities in either your client’s case or health, and request in camera review of any sensitive supporting material if necessary. Remember, the judge is far more concerned with the administration of justice for your client than for your unpaid invoices.
  5. Communicating a Lack of Judicial Diligence
    Few tasks could be more treacherous than reminding presiding judges that they have failed to do their jobs! But what do you do if your judge has neglected to rule on a pending motion that has been fully briefed for months? Or what if your client truly needs an expedited or timely ruling? When faced with a legitimate emergency, you should ask the judge’s staff whether you can expect a decision soon (within X hours or days, for example), or if you should notice up the motion before the emergency judge.

    For nonemergency but otherwise urgent situations, when an opinion is long overdue, some of you may be lucky enough to practice in a jurisdiction that has enacted local rules contemplating this situation. In the Northern District of Illinois, for example, Local Rule 78.5 provides that any party may file a motion to draw the pending matter to the court’s attention for decision or to ask the clerk of the court to check on the status of the motion. Even without the benefit of a local rule to cite, your best bet is to file a short, simple motion explaining why a prompt decision is needed and, most important, how your client will be prejudiced by any delay in ruling.
  6. Communicating a Need for Oral Argument
    Many lawyers and clients would prefer to have oral argument on their motions, for a variety of reasons. For better or worse, trial judges in many jurisdictions do not hold oral arguments but prefer as a general policy to rule on the papers. So, how can you obtain these elusive oral arguments? As always, check your local rules for any particular requirements or standards. Your motion should set out, as specifically as possible, why the oral argument would be beneficial for the judge. Is the substantive law complicated, unfamiliar, or in flux? Is relevant precedent split on the key issue raised by your motion? Are there many steps involved in the analysis, or are there convoluted facts necessary to understand the issue or both? Be sure to request an appropriately modest amount of time for argument.
  7. Suggesting the Judge Be Proactive in Urging Settlement
    The vast majority of cases filed are settled. At the same time, for a number of reasons, some attorneys or their clients may be reluctant to make the initial settlement approach. Whether during a status hearing in open court or with language in a discovery or other pretrial motion, counsel can subtly suggest to the court that a settlement conference may very well be productive. Or take the direct approach. This approach is particularly helpful if your client is taking the litigation personally and struggling to make unemotional decisions. It is neither inappropriate, nor uncommon, for counsel to state openly that his or her client may better appreciate the risks, benefits, and costs associated with further litigation if the client hears it from the judge. (The judge will catch your drift.)

    On the other hand, how do you decline to engage in negotiations without appearing intractable? It is perfectly fair to tell the judge and opposing counsel that your client is not prepared to discuss settlement at this time without the benefit of an important pending matter like a court ruling, ongoing discovery, or completion of an audit.
  8. Communicating Your Concern with Judicial Misconduct
    Let’s say it’s not your opponent acting improperly, exhibiting prejudice, or habitually delaying the litigation—but the judge. All judges have their own styles and quirks. But beyond pinning your hopes on an appeal, what can you do if the judge’s behavior crosses the line from idiosyncrasy into misconduct or otherwise convinces you that the judge can no longer discharge his or her duties? (Adverse rulings, of course, are neither misconduct nor signs of impairment, and must be appealed at the appropriate time.) Both the federal and state court systems have mechanisms in place for a litigant to lodge a complaint against a judge believed to be violating laws or rules of professional conduct, either intentionally or because of a temporary or permanent disability. Each federal court, as well as many state courts, provide forms, instructions, and other materials to guide concerned lawyers and litigants. In the federal system, the circuit’s chief judge reviews all complaints and, if necessary, initiates an investigation. The investigation may lead to some type of sanction against the judge, running the gamut from private censure to a request for voluntary retirement. Meritorious complaints, of which few are filed, are often resolved informally. Although serious questions about judicial competence should be addressed, this process will not necessarily help you in an urgent pending matter. A well‑founded recusal motion likely would be a better avenue for seeking reassignment if you can stomach it.
  9. Letting the Judge Know He Should Recuse Himself or Herself
    Recusal motions are perhaps the most delicate matters you might be required to raise before the court. Much has been written about the judicial disqualification statutes (28 U.S.C. §§ 144 and 455) and motion practice. But suffice it to say that, where you perceive an actual conflict or serious question as to the judge’s impartiality, you as zealous advocate and officer of the court are required to raise the matter when it has come to your attention. This is true even if you are approaching the end of litigation. What if, for example, you learn late in the game that the judge holds a financial interest, or has a special relationship, that may warrant recusal? As with all such motions, take a straightforward, remorseful tone; the judge doesn’t want to read this motion any more than you want to file it. But to uphold your professional reputation and that of the judge, to protect your client’s interests, and to safeguard public confidence in our legal system, these issues must be confronted head on. Find out whether your opponent shares the same concern and might be willing to join you in your request for clarification. If you are hesitant about filing a motion, perhaps you could initially raise the issue at a status call or in a letter (where permitted) requesting a chambers conference with opposing counsel. This approach may be especially helpful if you think your judge, depending on his or her demeanor, might be willing to step aside informally if he or she was aware of the situation. The judge may just have missed something in the ethics review or perhaps has a simple explanation that will alleviate your concerns. An informal approach short of a motion may appease your client, save time and expense for all, and allow the judge to discreetly avoid embarrassing public scrutiny.
  10. Carefully Balancing Your Obligations
    These loyalties can be stretched to the breaking point if your client turns on the court system itself. Although these circumstances are unusual, you may find yourself in the unfortunate position where your client makes disturbing or threatening comments about the judge or judicial staff. At what point do you act, and how does your choice affect your attorney‑client relationship? Generally, local rules of professional conduct permit attorneys to disclose otherwise privileged information to prevent a client from committing a crime (such as threatening a federal judge) or as reasonably necessary to prevent the client from inflicting substantial bodily harm. Some states and firms sponsor an ethics hotline or committee to provide further guidance. Ultimately, if you reasonably, sincerely believe that your client poses a threat, you must inform the judge of your client’s intentions or disconcerting behavior. Once you’ve decided to disclose a threat, you face another ethical dilemma because you almost certainly cannot continue your representation, even if you wanted to. One approach that resolves both issues is to file a motion to withdraw in which you share your concerns, to the extent you believe necessary both to inform the judge of the situation and to justify your motion. Another option—particularly if you learn of a threat from another source, including the blogosphere—would be to send a letter informing the judge or marshal, and opposing counsel. What you say and how you say it will depend on the circumstances, but you should trust your instincts if you feel your client has crossed the line.

Odds are that at some point in your career, you will need to tackle some truly awkward situations that require you to communicate a problem to the judge. No need to panic; just be upfront, reasonable, and professional at all times.


Keywords: litigation, pretrial practice and discovery, ex parte communication, judicial misconduct, motion practice, recusal, unprofessionalism, withdrawal of representation


Hon. Marvin Aspen is a judge in the U.S. District Court for the District of Northern Illinois and is a cochair of the Pretrial Practice & Discovery Committee.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).