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Litigation Journal

Summer 2023 | Legitimacy

Motion Sickness

Hon. Jack Zouhary


  • Those who toil in chambers spend much of their time dealing with motion practice.
  • Sometimes lawyers can be part of the problem instead of the solution.
  • Sometimes lawyers believe that they should ride into court in a full suit of armor and battle their opponent every step of the way. Not so.
Motion Sickness

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It’s a medical fact: Judges suffer more from motion sickness than those in other occupations. I am not talking about vacation cruises or Lake Erie fishing trips. I am talking about court filings.

Those who toil in chambers spend much of their time dealing with motion practice. All kinds of motions. Procedural motions. Discovery motions. Motions to dismiss. Motions for summary judgment. Motions for this and motions for that. Often, formal motions are unnecessary. Some are not well thought out. Others are knee-jerk reactions to opposing counsel’s behavior. I have found over the years that if I can encourage counsel to talk with each other, I can reduce some of the conflict—some of the motions—that take up everyone’s time. On this front, I have achieved some success.

Parties who have disputes and bring their cases to court for resolution hire lawyers to communicate and assist in resolving the dispute. Sometimes lawyers can be part of the problem instead of the solution. If so, the lawyers defeat the purpose of the parties’ hiring them in the first place. Parties need lawyers to communicate for them—this includes communicating with opposing counsel. Sometimes lawyers believe, either through party insistence or otherwise, that they should ride into court in a full suit of armor and battle their opponent every step of the way. Not so.

Discovery Disputes

Let’s first talk about discovery disputes. Most courts now agree these are best handled when the lawyers have first communicated with each other. If counsel are unable to resolve the issue, then and only then, they may come to the court for help. For example, Northern District of Ohio Local Civil Rule 37.1 says:

(1) Discovery disputes shall be referred to a Judicial Officer only after counsel for the party seeking the disputed discovery has made, and certified to the Court the making of, sincere, good faith efforts to resolve such disputes.

(2) The Judicial Officer may attempt to resolve the discovery dispute by telephone conference.

(3) In the event the dispute is not resolved by the telephone conference, the parties shall outline their respective positions by letter and the Judicial Officer shall attempt to resolve the dispute without additional legal memoranda.

Such a procedure has become the culture in some courts even without a rule. I broaden this principle further with my civil case management protocol. The protocol requires lawyers to discuss potential motion practice with opposing counsel—including motions to dismiss and motions for summary judgment—before a formal filing. I find this especially helpful in reducing the number of motions to dismiss at the outset of a case. No motion can be filed until counsel and the court have held an initial phone conference. Sometimes the call allows for an early amendment to the complaint to alleviate a defendant’s concern. This early case management supports the “just, speedy, and inexpensive” resolution of cases under Rule 1 of the Federal Rules of Civil Procedure. A motion to dismiss out of the gates may unnecessarily slow the process. I have also achieved some success in cases being dismissed or even settled early on. Why would we let three rounds of briefing kick off a case and delay for some months a more meaningful discussion of the underlying merits—the big picture? Common sense, please!

Summary Judgment

And what about summary judgment? Not right for every case—only if there is an “undisputed issue of material fact.” Fed. R. Civ. P. 56(a). This has been a harder nut to crack. I specifically omit discussion of a summary judgment deadline at the case management conference. Usually, you need some discovery before you can represent, let alone know, if material facts are in dispute. My protocol, which I make available on the Northern District of Ohio court website, requires counsel to meet and confer later in the case, often after key discovery, and then submit joint letters outlining their respective positions.

After reviewing the letters, what then? Well, it depends. Sometimes we proceed with formal motion practice. Other times counsel are advised that their request for motion practice is too late—too close to the trial date. They are reminded it was their obligation to work the motion into the case schedule. I often sense counsel (or clients) are fearful of having to actually go to trial!

The letter exchange has at times resulted in lengthy single-spaced letters, what is itself effectively a full legal brief. This duplication is not my goal. More often a plaintiff will agree to dismiss certain claims or certain defendants, and this allows for more narrowly focused traditional briefing.

After an initial experiment, I revised my summary judgment protocol as follows:

  • Counsel shall meet and confer about the merits of the proposed motion.
  • The moving party sends a letter outlining the motion; the opposing party responds with a statement of disputed material facts.
  • The parties submit the letters. The court then talks with counsel about next steps.

In most cases, this letter exchange is five pages or less. I encourage the use of bullet points or other abbreviated ways to outline the argument. Whatever the outcome, the letters are in the official electronic case file, preserving any appeal.

For simple issues, we rule one way or the other based on the letters. In more complex cases, letters help focus subsequent briefing, allowing for shortened briefing schedules and fewer pages of spilled ink. And even where letters did not “scare” either side, they did help counsel properly identify the disputed issues for settlement attempts.

The results have been mixed: Either the letters were helpful, allowing focused formal briefing; or the letters were not helpful—“ships passing in the night”—and an oral hearing is held with a decision citing record evidence supporting a denial of the motion. The decision can be delivered orally on the record or through an order filed afterward.

Open Communication Is Key

This leads to my next point: Open communication at the outset of the case is key. My very first contact with counsel is the initial conference, usually by phone, which takes place after counsel have entered an appearance for all parties. I ask counsel to bring me up to speed on the case and tell me what I don’t already know from the complaint and answer (if one has been filed). Settlement discussions? Key issues? Anticipated problems? To be sure, serious motions that address strictly legal or constitutional issues are welcomed—and welcomed early in the case. This too is discussed with counsel in the initial phone call. Ruling on these motions can help resolve a case early, by settlement or otherwise. Lengthy and expensive discovery is avoided. Sometimes I stay all legal filings for 30 or 60 days if an early settlement is likely. When good lawyers do not need court help, our rigid rules often get in the way.

I also take a robust view of the initial disclosure requirement under Federal Rule 26(a)(1). I encourage counsel to “turn their cards over” at the outset of the case—meaning not simply exchanging a list of documents, but the actual documents themselves. If it’s a complicated case, that is, of course, done in stages. I encourage the easy-to-share disclosures before the case management conference. This helps create a realistic case schedule. I sometimes will hold a “combo” conference, which includes a settlement conference, at the outset. In doing so, I try to assist the parties and counsel in resolving the case, and if it does not resolve, we proceed directly into a discussion of the case schedule. A date specific for trial at the outset? Heck no. Unrealistic. But a firm trial month is agreed on—with an exact start date sometime during that trial month set later in the case.

Even with protocols in place, a judge must know when to be “hands on” and when to be “hands off.” Lawyers check up on judges by calling local lawyers who presumably know what buttons to push with a particular judge. Judges can use the internet too—get a feel for lawyers appearing for the first time in their court. With good lawyers, or repeat lawyers, a judge’s involvement can be minimal. If judges can get a sense of the case early on, they can better anticipate what is needed from the court. This way, the court’s time and limited resources are best projected and spent. Essentially, I have transferred to counsel the duty to discuss the case with each other before filing motions and the duty to confer regarding any adjustments to the case schedule. In turn, I make myself available when needed during the case to handle a matter by phone or video. In this way, we avoid unnecessary motion practice.

Appellate courts recognize a judge’s ability to manage the docket. See, e.g., Franke v. Norfolk Southern Ry. Co., No. 21-3848, 2023 U.S. App. LEXIS 11717, at *3 (6th Cir. May 12, 2023) (“Given the broad discretion district courts possess in managing their dockets and the Plaintiffs’ opportunity to be heard on the matter, the district court did not abuse its discretion when it held that additional briefing was unnecessary.”). And as lawyers become more familiar with this procedure, they (not surprisingly) adapt. Acceptance over time. Their buy-in helps ensure cases travel smooth waters. No tsunamis. No shipwrecks. Less motion sickness.