Forget about trials for a moment, which are postponed until May. Here's an email from Paul Petruzzi that just went around about a state court probation violation hearing:
So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite.
I encourage the judicial powers that be in state court to rethink their current plans.
Paul P.
I don't say this because of COVID, I say it because it has been my opinion and observation for nearly two decades - we shouldn't have most in-person hearings. I am a civil practitioner and will limit my opinion to that area of the law, but the vast majority of hearings are a waste of time. Federal courts and appellate courts can rule on the papers 99% of the time.
ReplyDeleteIf judges are holding hearings on motions to dismiss, they're just being lazy. With some limited exceptions, it's a four corners standard. Read the motion. Compare it to the Complaint. No need for a hearing.
Don't get me started on discovery motions. Judges have eyes. They can read the responses. No hearings necessary. Those hearings just turn into finger pointing sessions. They demean the profession. Just submit the damn discovery responses with a short motion (I'm talking 5 pages or less) and let the judge decide.
Can't agree on depo dates or location? One page notice to the court. The clerk will pick the time and place. A pox on both your houses.
Why is oral argument necessary, or even permissible, on summary judgment? More often than not, oral argument in summary judgment is just an opportunity for one side (or both) to argue "facts" that aren't in the proper summary judgment record. It's error to decide summary judgment on "facts" that aren't in the record, so why are judges holding hearings when the record is already closed by the time of the hearing? If the parties didn't brief the issues well enough for summary judgment to be granted, tough - learn to write. Summary judgment denied.
Hell, if you've got a bench trial, you can basically just submit summary judgment briefing again and let the judge decide the issues on a trier of fact standard instead of on the no material dispute standard. Done. Learn to take good depositions, write well and clearly, and get a full night's sleep knowing that your case doesn't come down to whether or not the judge likes your face or your client's greasy hair.
What could a 15 minute appellate oral argument REALLY do to illuminate the issues in nearly 100 pages of appellate briefing and often thousands and thousands of pages of record? Give me a break.
If the Court has a real and genuine question on your overtime, ADA, trademark, or breach of contract case - Zoom hearing.
There you go, 99% of civil non-jury cases litigated from pleadings to judgment at trial, and all appellate work done, without ever setting foot in a courtroom. Nice and COVID safe.
Are there some cases where in-person hearings might help illuminate the issues? Sure. But in the context of civil commercial litigation, they are very much the exception and not the rule.
Here is one thing that the Courts SHOULD be doing more of in-person: magistrate mediation. At the first reasonable opportunity, every civil case should get called in first thing in the morning and the lawyers and parties should get raked over the coals by an angry magistrate judge (whether s/he's actually angry or not), then made so sit and cool their heels until they settle or 5pm rolls around. If they haven't settled by 5pm, they should get sent home with an ominous warning that the Court expects a notice of status of settlement discussions within 3 days and that the judge may call the parties back in to continue mediation if the case hasn't settled. Anyone else remember Magistrate Turnoff? He did it a little different than that, but he was certainly a master at his craft.