1. A View From The Bench: Civil Litigation In Federal Court January 2016

2. Distinguished Panel Hon. Roger L. Gregory – USCA, 4th Circuit Hon. Andre Birotte, Jr. – USDC, C.D. California Hon. J. Michelle Childs – USDC, South Carolina

3. Hon. Brian C. Wimes – USDC, W.D. Missouri Hon. Kandis Westmore – Magistrate Judge, N.D. California Former Justice Louis Butler, Jr. – Wisconsin Supreme Court, Moderator

4. Federal (Chambers) Federal –1 judge –2 law clerks (career and term) –1 courtroom deputy –1 judicial assistant –1 court reporter –250-350 civil/criminal cases (Depends on District)

5. Before You Begin Always check the rules –Federal Civil Rules http://www.mow.circ8.dcn –District Court: Local Rules and Procedures The Court website –Judge Bio http://www.mow.uscourts.gov/judges/wimes.html –Chambers Rules: Scheduling Orders Trial Orders Civil rules...etc.

6. RESPONSIBILITIES TO THE CLIENT Lawful and Meritorious Objectives –Loyalty should not interfere with objective and independent advice; the counseling function –Lawyer should advise against pursuing positions that lack merit

7. SCHEDULING Attempt to schedule by agreement, taking into consideration schedules and accommodations of opposing counsel, parties, witnesses and Court Do not attempt to engage in delay tactics in scheduling meetings, hearings, or discovery

8. SCHEDULING Try to verify availability of key participants and witnesses before setting a meeting, hearing, or trial date Immediately notify opposing counsel and Court of need to reschedule or cancel meetings, depositions, and hearings, and attempt to provide alternative dates Meet and confer; don’t involve judge unless necessary

9. CONTINUANCES AND EXTENSIONS OF TIME Agree to reasonable requests when legitimate interests of client will not be adversely affected

10. COMMUNICATIONS WITH ADVERSARIES Be civil, courteous, and accurate Do not copy Court on any letter between counsel unless permitted or invited by the Court

11. DISCOVERY Goal to ensure timely, efficient, cost effective and just resolution of dispute –Take depositions where needed to learn facts or to preserve testimony –Cooperate in scheduling depositions to accommodate everyone –Advise and account for translation needs –Avoid repetitive and argumentative questions intended to harass

12. DISCOVERY Avoid speaking objections intended to coach a witness Do not direct a witness to refuse to answer unless question seeks privileged info Only request docs actually needed Avoid last minute document dumps designed to hide or obscure the existence of particular docs

13. The Cardinal Rules of Drafting No typos Cite the law – a lot Make it easy to read –Make it look pretty –Plain language –Attachments easily accessible Shorter is always better Don’t get personal

14. No Typos Your credibility is on the line You want to engender confidence Typos can cost the Court precious time Always have someone else read it

15. Cite to the Law The trial court’s job is to follow the law Let Court know when there is no law Let Court know when the law is against you (distinguish it) Make sure you read the whole case (you can’t trick us) Pin cites (impacts time, credibility) No string cites Shepardize Federal court uses Westlaw predominantly

16. Make It Easy To Read Make it look pretty –Type face should be not less than 12 point –Have 1 inch margins –Use Times New Roman –No long block quotes –Don’t overuse footnotes –Use headings and keep them brief (interruptions) –Don’t be afraid to be creative (timelines, bullet points, charts)

17. Attachments Attach only what you really need Highlight the good stuff (Court should not have to “scour”) Attach it to the courtesy copy A notebook with tabs is good

18. Shorter is Always Better Standard of review should be short Federal -15 pages (Local Rule 7.0(f)) Pick your battles –Don’t brief obvious losers –If there is no dispute, state just that No big words Don’t get personal

19. Motions In Limine Court does not like surprises Court does not like to keep jury waiting It is not a trial brief Omit the no brainers Court loves when attorneys agree Case law is a must (have copies ready)

20. ORAL ARGUMENT PREP Know the Record –Relevant Facts –Standard of Review or Burden of Proof Know the Relevant Law –Know governing law thoroughly –Be prepared to distinguish cases if necessary –Consider precedential impact of your case

21. ORAL ARGUMENT PREP Anticipate Questions –Prepare potential responses in advance –Weave anticipated questions into your argument Practice –Moot your argument with other lawyers –Practice with and without notes

22. ORAL ARGUMENT STRUCTURE Be prepared to provide the essentials –Understand the difference between what you want to tell the Court and you have to tell the Court Your opening minute –Try to organize the Court’s thoughts and capture its attention

23. ORAL ARGUMENT STRUCTURE The “roadmap” –State issues in a clear, compelling manner to let the Court know the anticipated progression of your argument –Provide the Court with the appropriate standard of review for each issue at the outset Organizing the argument –Proceed from strongest to weakest in order not to dilute your most persuasive points

24. ORAL ARGUMENT STRUCTURE Conclusion –Memorize it so that your ending will be strong no matter how the questioning ends

25. ORAL ARGUMENT PRESENTATION Delivery –List of dos and don'ts Handling of questions –List of dos and don’ts The question as the enemy –Remember there are three judges on appeal –Try to get out of a jam –Beware of hypotheticals (no unplanned concessions)

26. ORAL ARGUMENT PRESENTATION –Beware of hypotheticals (no unplanned concessions) Guard your tone –Best arguments are “respectful, intellectual, discussions among colleagues.” Emmert, Effective Oral Argument, ¶ 7.301 –Convey the honor and privilege it is to present your client’s case –Have fun!

27. JUROR REACTIONS Ask simple questions that will elicit simple answers Allow the witness to answer Take into account any mental concerns a witness might have so as to not embarrass them

28. JUROR REACTIONS Have preliminary issues decided in advance of trial, so jury is not wasting its time Try not to make eye contact with jury; can be intimidating

29. JUDICIAL BENCHSLAPS What REALLY aggravates your judge –Examples

30. THANK YOU!