What do you really need to know to succeed in federal court? You are familiar with the Federal Rules of Civil Procedure, you have mastered the facts of your case and written a strong, persuasive brief. Isn’t that enough? Not by a long shot. All your hard work may not matter if you do things that annoy the federal judge or, worse, demonstrate you have not taken the time to be familiar with your judge’s preferred procedures.
Here are seven mistakes that lawyers should never make in federal court. As our chief district judge commented recently, these are things that can “make a grown judge weep.” Worse yet, they could spell disaster (or sanctions) for you and your client.
Fail to Read the Local Rules
In addition to the Federal Rules of Civil Procedure, every district court has its own local rules. These are generally available on the court’s public website. At the commencement of every new action, most district judges send out a standing order that requires counsel to familiarize themselves with the local rules.
Local rules, for example, can control the time to file opposition briefs, set out ex parte procedures, requirements for filing under seal, and permit the judge to dispense with oral argument. Ignore them at your peril.
Ignore the Judge’s Standing Order
Your judge’s standing order is perhaps even more important than the local rules. District judges have broad discretion to manage their busy dockets. Rule 1 of the Federal Rules of Civil Procedure requires the court and the parties to construe and administer the rules to effectuate the efficient and cost-effective resolution of cases. The judge’s standing order is a critical tool in achieving that goal.
Sometimes referred to as “local local rules,” the standing order provides important information about how the judge wants the case to run. If you fail to comply with the judge’s procedures, your filing may be stricken or rejected.
Bring a Motion to Compel Discovery Days Before the Discovery Cutoff
After the parties’ Rule 16(f) conference, the court will hold a scheduling conference and set a schedule governing the case from discovery through trial. Read the scheduling order carefully. It sets firm dates for every major stage of the case, including the completion of fact discovery, expert disclosures, filing motions for summary judgment, as well the final pretrial conference and trial. Once set, those dates are generally firm—especially the discovery cutoff.
Many judges, including me, require not only that discovery be served before the discovery cutoff but also that any discovery motions be brought early enough to be resolved before the cutoff. That cannot happen if you wait to bring your discovery motion two days before the discovery deadline. The judge is unlikely to look favorably on a last-minute request to extend the discovery cutoff to resolve a dispute about document requests that were served a year ago. Don’t expect to solve the problem by submitting a stipulation that says both parties agree you need more time. There must also be good cause for the court to grant the extension.
All your hard work may not matter if you do things that annoy the federal judge.
Be Late for Oral Argument
It is increasingly common for federal judges to rule on motions without holding oral argument. If your judge sets oral argument, make the most of it. That starts with being on time. Unlike in many state courts, the time set for oral argument is specifically for your motion. There will not be an opportunity for “second call” after your case is called. Get to the courthouse early. Plan for traffic, parking, and other delays. Remember that security at federal court houses can be tight and the lines long. Allow enough time on your hearing day to get through security.
Be ready to address the court as soon as the clerk calls the case. If you plan to use demonstratives or technology to support your argument, check and double-check that it will work in the courtroom. Some districts have information technology staff available to train attorneys to use technology in the courtroom. They can assist you with coordinating your laptop or digitized exhibits with the court’s display system. Call ahead a week or two before your hearing (or trial) and make an appointment to avoid unnecessary delays and mishaps during your argument.
Interrupt the Judge
When you do get the opportunity for oral argument, don’t waste it. Of course, you have prepared your presentation to the court. But oral argument is more conversation than performance. Take your lead from the judge. If the judge has a tentative ruling, review it carefully before you begin. If not, first ask if the judge has particular questions he or she wants you to address.
Once you begin your argument, if the court interrupts with a question, stop talking. Listen carefully to the court’s question. Listening may be the most important part of your argument. The judge may be focused on an issue that you had not given much attention to, or the judge may need clarification about the factual record.
No matter what, do not interrupt when the judge is speaking. Let the judge complete his or her thought or question, then respond. Few things annoy judges more than lawyers who interrupt. Oral argument is not a debate. Answer directly. Your personal comportment—especially under pressure—is crucial to establish your credibility with the court.
Finally, to support your argument, make it easy for the court to find and use your evidence. Bring extra copies of essential exhibits or key cases, even if you attached the evidence to your papers. Include bookmarks in your e-filed PDF briefs so that the judge can quickly find your evidence.
Pepper Your Brief with Insults and Personal Attacks on Opposing Counsel
If you want to almost guarantee that the judge will not pay much attention to your brief, then include insults and ad hominem attacks on opposing counsel in your papers. Federal judges focus on resolving the merits of the legal issues in dispute. We simply do not have time for personal insults and finger-pointing. Ironically, the lawyer who does that usually leaves a more unfavorable impression of him or herself rather than their opponent. Stick to the merits. Despite poor behavior by opposing counsel, take the high road. You want the court to rely on your argument and your briefs to set out the accurate factual record, proper legal standard, and a clear, thoughtful legal analysis.
File a Surreply
When opposing counsel makes misstatements or new arguments in a reply brief, it can be tempting to want to respond with further briefing to correct the record. Don’t. Unless and until you get the court’s permission, you cannot file a surreply in federal court without leave of court. If it seems necessary to submit additional papers after the reply is filed, carefully prepare an ex parte application that establishes good cause for doing so. Before making the ex parte application, reread the local rules and your judge’s standing order to make sure you comply precisely with your judge’s requirements.
Remember, you do not want to be the lawyer who ignores the judge’s procedures. Even if it doesn’t make the judge weep, it could get you sanctioned.
Hon. Karen L. Stevenson is an associate editor for Litigation News.
- Sindhi v. Raina, 905 F.3d 327 (5th Cir. 2018) (affirming entry of default judgment for failure to follow district court’s rules).
- Khoury v. Meserve, 268 F. Supp. 2d 600 (D. Md. 2003) (denying leave to file surreply).
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