Letter Motions Needed in SDFL
By Rumpole
All things federal being the milieu of DOM, we sent this post for him to use.
The SDNY appears to be the only jurisdiction that endorses the use of “letter motions” as a way of attorneys communicating with the court on less serious issues. In the SDNY, each judge lists their practice differently on their website. Some judges want letter motions emailed to chambers, while others direct attorneys to file them in CMECF. In the SDNY cmecf interface, there is an option for a “letter motion” to be filed.
A letter motion is, a motion in letter format to the District Court Judge. For example:
Dear Judge XYZ,
I write to request that the court allow my client to travel to Pyongyang, North Korea, to attend the opening of the Dear Leader’s Party Conference. My client will be traveling from July 1 to July 21. The government has deferred to the pre-trial services officer, who has indicated that as long as the client does not assist in the launching of ballistic missiles, she does not object.
Your, obt Svt. H. Rumpole, Esq.
The letter motion is a simpler, and superior way of communicating with the court, bypassing the “Comes Now The defendant” standard motion, the use of the preamble of which Mr. Markus and Rumpole have previously debated.
Why doesn’t the SDFL use letter motions? Have our judges ever considered the use of letter motions? Has anyone recently asked Chief Judge Altonaga to consider implementing letter motions? Is there a downside?
A quick perusal of SDNY judge websites yields that the practice is mostly uniform, with judges listing certain motions that can be used in letter format, and others that must be filed in the regular format.
While the SDNY appears, based on a quick internet search, to be the only district that uses letter motions, the practice is efficient and should be adopted by other jurisdictions.
HR
Response by DOM -- I've never liked the SDNY practice of letter motions. What is the upside of a letter motion? You don't need "Comes Now" in a regular old motion either. Peace and love.
12 comments:
Yes, because of course lawyers need a new name and format once a motion becomes sufficiently short rather than just leave things be. If a lawyer is writing too much just because it's formatted as a motion rather than a letter, then...
Chief Judge Altonaga has informed lawyers specifically not to submit "letter motions" in the Southern District of Florida, and there is also a local rule forbidding letters to the court. See S.D. Fla. L.R. 7.7.
I'm fine with the concept of letter motions and they are, as Rumpole writes, standard practice in the Southern District of New York. That said, what does a letter motion accomplish that a standard motion does not (apart from perceived notions of formality, that is)?
The better practice is to simply have one way to ask the court to do something--via a motion. I've had cases in New York, and these "letter motions" are obnoxious and annoying. IF you want something, just file a motion and argue why you should get the the requested relief from the judge (after conferring with opposing counsel to see if they will oppose your request).
New York's procedures in general are terrible and shouldn't be copied by anyone. In state court motions are accompanied by an "affidavit" from the filing lawyer that basically lays out an argumentative memorandum of law in numbered paragraph-by-paragraph affidavit format. It's ridiculous. They also allow immediate appeals of a denial of a motion to dismiss, so you have appeals going up while the case is ongoing in the trial court, and whoever files a notice of deposition first gets to have that deposition taken before any depositions of their side, so defendants immediately file deposition notices without conferring with opposing counsel.
Don't be like New York. And don't even get me started on California. "Tentative" rulings by the judge before the hearing. Numbered lines on every page of a motion or memo. NOPE.
As 10:20 points out, letters to Judges have always been forbidden in our district, as are courtesy copies, unless specifically requested by the Judge. However, many other districts in other states actually mandate that you send courtesy copies of motions, even if filed on CM/ECF, to chambers. (ex., C.D.Cal.) This is probably why letters to the Court are more prevalent in those districts, and why you don't see them in our district.
A letter motion seems so much nicer and informal. It's just some pleasant correspondence amongst friends.
I guess it doesn't matter a whole lot, but in a way, perhaps for the judges, a letter motion is a simple way to distinguish the wheat from the chaff. It lets them know it is something not affecting the heart of the case. I did one a year ago to extend a deadline after reading on the SDNY judge's website that such motions were routinely granted if sent as a letter motion, two business days before the expiration, with consent of the other side.
I can't put my finger on it, but I just like it. I mean it's the most distinguished district in the USA (outside of the Middle District of Oklahoma) and yet you get a whole bunch of stuff done by writing a letter. I like it.
1053 I love the tentative rulings. It lets you know 1- the judge has read the motions and 2- where you stand heading into the hearing.
Let’s face it - judges are human and they get an idea of where they are headed in a ruling after reading the motions. It’s like playing poker and seeing one of your opponents hole cards. You gotta know when to hold em and know when to fold em and know when to walk away and know when to run.
We need some innovation in the SDFL. we have been doing this the same exact way since Most of the readers of this blog were in grade school. The last innovations were electronic filing and zoom and both of those were nationwide.
Another example of the Sdny recently - new indictment. Judge holds a status conference and asks both sides about discovery and deadlines for motions, responses, replies and a trial date. All set with the input of all parties. It being summer some counsel had vacations planned and that was taken into account when the deadlines were set. Speedy trial exclusion was agreed to. The government was asked to give a detailed explanation of discovery and when it will be given and what is in it.
Now we all have a reasonable schedule based on the amount of discovery and personal schedules like trials and vacations. No need to go back to court 30 days after indictment begging for a continuance with a judge scowling at you - and we all know that happens in many divisions (not all) in SDFL.
Rumpole, your observation about the efficient and informal method of resolving simple disputes is interesting to me because in our District, we have one available for civil discovery disputes, but no equivalent on the criminal side--I'm realizing only as a result of your post.
Civil discovery disputes may be submitted, sans motion, for resolution by the magistrate judge at a hearing; the only pre-hearing submission required (or allowed) is the "source materials" (discovery requests and responses) via email to chambers. It cuts the cost and time associated with fulsome briefing.
So, criminal lawyers of the SDFLA, would we benefit from some equivalent abbreviated procedure that bypasses motions in criminal matters? I'm not sure we would-- as other commenters have noted, the motion practice (particularly where unopposed, as in your example Rump) can be short and efficient to get the order you need, for example, to modify the bond conditions. Anything contested and more meaty, like to dismiss/suppress, needs complete briefing. So I dont know that we have an unmet need, but it's interesting. Thanks for raising it Rumpole!
A letter motion should only be allowed if it's filed in CM/ECF because then it becomes part of the record. But if that's the case, there's really no reason for it over a regular old motion. Yes, one should eschew "Comes now" and its relations. Almost every stodgy, formalistic preamble tells the reader no more information than is already conveyed through the case caption and the title of the motion. The caption tells you who the parties are. The title of the motion tells you what the motion is. So all you're really doing is pointlessly taking up a quarter of a page when you proceed to write, e.g., "Plaintiff, Company Corp. ('Company'), by and through undersigned counsel, pursuant to rule blah blah blah, hereby moves for X, Y, and Z, against Defendant, Corporation, Inc. ('Corporation')and in support thereof, states as follows:"
Figg I will never abandon Comes Now. It courses through my blood because Cessante ratione legis cessat ipsa lex.
“By and through undersigned counsel” is also stupid. I never do it.
Rumpole, lol, I can respect that. I've got my things too, I'm sure.
I realize that I've already commented, but I have an anecdote that supports my point. I've recently become involved in a matter where I'm having to review (from scratch) most of the trial court docket in a New York federal trial court (almost 200 entries). ~38% of the docket entries are "letters" to the court, and that doesn't even include letters that were sent to chambers but never filed (of which I am aware of at least a handful). It's frankly ridiculous and if I learned anything, it's that the letter did not accomplish anything other than gamesmanship.
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