United States: The Secrets To Litigating In The United States Federal Trial Courts - What The Local Rules Won’t Tell You

Even the most seasoned litigators sometimes find themselves intimidated by the idea of litigating in federal court. Those lawyers familiar with only the state court rules and practice, often find themselves outmaneuvered by an opponent who has litigated many cases in that particular district court. Every district court and individual judge employs slightly different procedures and local rules. However, armed with these eight tips for success, you will feel like a veteran of federal court litigation, and more importantly, appear experienced to your adversary.

This article contains basic advice for any federal court practitioner. While clerking in the federal courts for two years, I was shocked at how many attorneys could use a reminder of these simple hints to litigating in the district courts.

1. Avoid "Going It Alone" With Pro Hac Vice Admission

When handling a case that calls you away from your home district you will be faced with the decision of whether to obtain local counsel. Experienced attorneys will tell you that litigating in a foreign district without local counsel invites problems. All district courts will allow you to appear pro hac vice but most districts give the judge discretion to require you to obtain local counsel. In most cases, failing to select local counsel and "going it alone" is not only asking for trouble, but also a disservice to your client.

Local counsel, even if serving only a minor role in the case, can provide you with intangibles such as guidance on the judge's preference for handling discovery disputes. Local counsel may be privy to your particular judge’s likes and dislikes in a way that you will never discover from reading a judicial profile. Certainly, you do not want your adversary appearing more knowledgeable than you when it comes to the local rules. With the wide variety of rules that apply to different districts and each courtroom, local counsel is usually necessary to level the playing field.

Selecting local counsel is not the time for throwing business to the "coolest" guy in your law school class. You need to put careful thought into your choice for local counsel. Do some research. Ask your friends and colleagues who they recommend to serve as local counsel. After you have made a list of potential candidates, ask yourself the following questions about each person: 1) What is his/her reputation in the community, and specifically, in that district's Federal Bar? 2) Will the firm name reflect well upon you and your client? and, 3)  How much experience does the candidate have in federal court?

Of course, not being a member of the local bar will require you to perform research on each person-- ask each candidate for their credentials and experience in federal court. Also do some independent research by asking other lawyers in the area about the reputation of the candidate and his/her firm. Selecting a firm with a stellar reputation adds immeasurable legitimacy to your case. Above all, you must put serious thought into the type of person you want representing you and your client. A wise selection can make a big difference when issues come down to credibility and experience, as they often do.

The first thing a smart federal practitioner does is familiarize himself with the Local Rules of the particular district. Nothing aggravates a law clerk and judge more than fielding questions from counsel that could have easily been solved if counsel had checked the Local Rules.

Law clerks and courtroom deputies are prohibited from giving any legal advice, so do not put them in the position of explaining this to you. This is not to say that you cannot call the clerk and politely ask if the judge has any "chamber" rules that are not mentioned in the Local Rules, such as how s/he prefers to handle discovery disputes. This shows that you care about making the clerk’s job easier and have familiarized yourself with the Local Rules. Some judges even post their chambers rules on court websites so be sure to check this source before calling the clerk.

If in doubt about whether a particular dispute will require a formal motion, call the law clerk and ask. Most clerks would rather spend thirty seconds on the phone explaining the judge’s ex parte or informal procedure than receive a three inch stack of motion papers, exhibits and lodgments. But remember, before any inquiry, double-check that your question is not answered in the Local Rules or on the court website.

Generally, the first person to read your brief is a twenty-something law clerk who will summarize your arguments and authorities for the judge. The clerk will read both parties' briefs, analyze the case law, perform additional research as necessary and ultimately prepare a bench memo for the judge’s review. This bench memo serves as an outline and recommendation as to whose side the law supports. Even if oral testimony is heard by the judge, the clerk's bench memo (never far from the judge’s fingertips) is critically important.

Thus, you need to consider how your arguments will be relayed into this crucially important bench memo. Tricks of the trade that will help remind you to keep your audience (the clerk and judge) in mind are detailed in this article.

Because your brief will provide the basis for the clerk's bench memo, the moving party will provide the clerk with an initial framework for the clerk’s memo. Thus, you need to structure your arguments in a way that will grab the clerk, and then the judge’s attention, by placing your strongest arguments first.

Provide a brief summary of "why you win" in the introduction. Then, break up each argument with short and punchy point headings which make the brief easier for a clerk to read and convey into an organized bench memo. Any long, complicated brief will be boiled down to the key issues and simplified in the bench memo. Your job as the advocate is to provide the clerk and judge with a road map of why you should emerge victorious.

On the other hand, if you are not the moving party, your opposition papers should track, as best as possible, the structure already established by the movant. That means if section one of the moving papers argues that summary judgment is proper based on the applicable statute of limitation, your opposition must begin by explaining why this affirmative defense does not apply to the case. If you make the clerk search for your counter-argument at the end of your brief you will seem unwilling or unable to dispute the movant’s arguments and, even worse, risk your argument being "lost in the shuffle."

Ignore the advice of your legal writing professors who told you to structure all briefs with your strongest arguments first. If the movant has already laid out the road map, it is the opponent’s job to disprove the movants theories, focus attention on the issues that will defeat the motion and point out the strongest arguments in opposition.

The introduction and conclusion are more than just bookends around your compelling arguments and authorities. Use the introduction to explain why the law supports your side in the simplest terms possible. Keep your introduction brief and to the point because even if a judge lacks the time to personally analyze your arguments, s/he will likely read your introduction and conclusion along with the clerk's bench memo.

Similarly, the conclusion should be short, to the point and explain in a logical manner, how the law and facts support your position. I recommend writing both the introduction and conclusion last so that you can identify your key arguments. Your overall goal must be to provide the judge with a "hook" upon which to hang her hat and award you the victory.

Remember that most motions amount to a "close call," determined by a very human judge who endeavors to apply the law fairly. Just as in baseball, where a "tie goes to the runner," in motion practice a tie is awarded to the party not bearing the burden. Thus, you must take every appropriate opportunity to point out that the party bearing the burden has failed to carry the burden of, e.g. establishing that the documents are subject to the attorney-client privilege, etc. If it is a tie, the party without the burden will win. Many good lawyers fail to hammer home this critical point.

Because most decisions are such close calls, you can make it easier for the judge to rule against your opponent by arguing that s/he has failed to carry the burden on the issue. Reminding the judge of the all-important "burden" issue will serve you well in any court.

Every appearance you make before a judge, or law clerk, will help you put a face behind the papers you are submitting. Seize every opportunity to put yourself before the judge, in person. When you are before the court you should avoid appearing discourteous to the clerk or opposing counsel. Your actions will not be forgotten. You would be surprised to hear of the number of attorneys who are rude or condescending to the judge’s law clerk.

Remember, everything you say and the way you treat the clerk will, in one way or another, get back to the judge. The typical chambers consists only of one or two law clerks, a secretary, and courtroom deputy. This intimate setting allows a law clerk ample opportunities to inform the judge of lawyers who, for instance, were rude to the clerk on the telephone. Treat every conversation with the clerk as if you were speaking directly with the judge. The information and image you convey will eventually make it back to the judge.

The federal district courts each operate with their own local rules and "chamber rules" specific to each courtroom. Although the tips in this article are almost elementary, my experience proves that every federal court practitioner could use a reminder. Most importantly, your job is to provide the judge and law clerk with the information necessary for a ruling in your favor. To do this, you need to be aware of what the clerks are looking for. The practical advice in this article will help you establish yourself as an experienced litigator in any federal district court.