Deborah Elkins//October 29, 2010
Deborah Elkins//October 29, 2010//
Metropolitan Richmond area judges came up with a wish list for motions practice at the area bar associations’ annual bench-bar conference in Richmond on Oct. 21.
Chesterfield General District Court Judge Pamela O’Berry sounded a little wistful when she said her court would like to see a few more well-crafted motions.
The GDC judges occasionally see a bill of particulars or grounds of defense, but in 99 percent of the cases, “there are no motions to speak of,” O’Berry said.
“If your case looks really good on paper, give us something to read ahead of time,” she said. Take advantage of a “really good bill of particulars” to please the judge and quickly make your client’s case.
And when it comes to discovery, it’s still pretty much “trial by ambush” in general district court, O’Berry said.
Henrico Circuit Judge Catherine C. Hammond would like to see “more strategic use of motions than what I generally see,” with more advance planning by the lawyers. “Some of the motions we see look like a rush or reaction toward the tail end of a case.”
“Why do people wait so long to take depositions,” she asked. Lawyers seem to work from the theory they have to get interrogatories answered and review documents before they take depositions. “I’m not sure that holds up,” she said. “Take the deposition first and reserve the right to go back again.
“If you spend a little more at the front end, it could save money in the long run,” she said.
Generally, in trial practice, planning can go a long way, she said. Rules on pretrial procedures let lawyers do a lot to clean up a case before getting to the courtroom. But lawyers don’t necessarily take advantage of the opportunities.
At the final pre-trial conference under Supreme Court Rule 1:19, “it’s wide open,” Hammond said.
Lawyers can talk settlement, narrow issues, amend pleadings, limit witnesses or discuss jury instructions.
When it comes to narrowing the evidence in play, there’s more than motions in limine. “We rarely see any stipulated evidence in advance,” another option noted by Hammond.
Then there’s federal court.
“I really worry about the extent to which federal practice is becoming motions practice,” said Senior U.S. District Judge Robert E. Payne, also on the panel. Federal court litigators love the relative ease of summary judgment practice in Virginia federal courts, when compared to state courts.
Payne said a lawyer from outside Virginia complained to him “that Virginia is the only state in which you cannot get summary judgment, that the rules are so hostile to summary judgment, it’s non-existent, it’s been written out of the rules. And the Eastern District of Virginia is summary judgment-happy,” the complaint continued. The lawyer made some “very unflattering remarks” about Eastern District judges, making some allowances for Payne, he said.
“Sometimes motions practice overwhelms the whole case,” Payne said, citing spoliation motions, which are on the rise, as an example of unnecessary motions. There are a lot of document- heavy cases and “every client is going to lose documents.”
“If you’re planning to file a spoliation motion, I invite you to reflect on it,” Payne said.
Federal judges are still watching “Twiqbal” play out in pleadings. Recent rulings based on the U.S. Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal indicate the bar has been raised for federal court pleadings, so that a plaintiff’s claims must be not just “possible,” but “plausible,” to survive a Rule 12(b)(6) motion.
“There’s been a good deal of hand-wringing among lawyers” trying to push a complaint across the magic line, Payne said. The line appears to lie “somewhere between conclusory allegations and reciting every element in a claim,” an approach that may have spawned the 163-page behemoth that crossed Payne’s desk a few months ago.
Payne says he has sua sponte raised the pleading-standard issue. But in most cases where the complaint is found wanting, “I have allowed plaintiffs to replead.”