Judge Kurt D. Engelhardt
Attorney
"Do's" and "Don't’s"
With United
States District Court Law Clerks
1.
Do remember that a law clerk is a lawyer, not a
secretary, paralegal, law student, or your
own clerical assistant at the court, and should be accorded the same
professional respect accorded to practicing attorneys. Please ask your
secretary and/or paralegals to do the same.
2.
Do remember
that law clerks, like you, are busy.
3.
District judge law clerks
handle legal matters including "regular" civil matters, criminal matters (trials, motions,
re-arraignments, sentencings, and revocations),
post-conviction requests for relief, magistrate "appeals" of §1983 claims, habeas corpus petitions, and social
security cases, and bankruptcy
appeals. They also have various administrative tasks, draft many, if not most, of those minute entries you receive,
and answer your phone calls.
4.
Law clerks do not have
their own secretaries or paralegal assistance.
5.
When calling chambers is necessary, don't automatically ask to
speak to the law clerk for every
question. The judge's secretary may be able to answer your question, or direct your call to someone who can, without
involving the law clerk. This allows the
law clerk to work more efficiently.
6.
Do familiarize
yourself with and follow our Local Rules!
7.
Do limit
your calls to the law clerk as much as possible.
8.
Don't call the law clerk just because it is the easiest
way to obtain the information that you want
and/or because you don't want to deal with the clerk's office automated
telephone system.
9.
Don't call
the law clerk as a substitute for reviewing your pleadings file, calling opposing counsel, accessing the Court's
website, accessing Pacer, sending a
runner (or coming yourself) to the clerk's office to review or obtain something
from the record, or calling the clerk's office when appropriate.
10. Don't call the law clerk just because
opposing counsel is frequently out of the office
or your relationship with him or her is strained. More law clerk time spent on the telephone translates into less time
spent on your motions.
11. Do practice
good professional telephone etiquette:
12. If
you are alone in your office, don't use the speaker-phone - and especially don't yell into your
speaker-phone. If you are with an associate who needs to participate in the conversation and you do not
have another telephone available,
then ask the recipient of your call if he or she minds being placed on speaker-phone and be sure to introduce
everyone who is in the room.
13. Don't have your assistant call a law
clerk and ask him or her to "please hold for Mr. Doe." There may be
some act that is more rude than this, but we can't think of any.
14. Do equate your communication with the law clerk to a
communication directly with the
Judge. If you would not talk directly to the Judge in a rude and/or
unprofessional manner, don't talk to the law clerk that way. He/she will likely relate such a call to the Judge
shortly thereafter. Also, remember that if it is unethical to "ex party" the Judge with a
call, the same is true of
the law
clerk.
15. When you call and get a law clerk's voice mail, don't simply
leave the message: "call me
about X case." Instead, briefly explain the reason for your call, and give
a docket number as well as the identity of the party you represent. If
your question will require the law clerk to
consult the judge, the record, or the work-file, the law clerk s 3 maybe
able to obtain the answer to your question before he/she calls you back. This
saves everyone time. In addition, having an idea of the reason for the call
will enable the law clerk to
determine whether your call is one that must be addressed immediately.
16. Don't have a secretary, paralegal, or other person
unfamiliar with the case make telephone
calls that should be made by a lawyer.
17. Do try to avoid waiting until the last possible date
before trial to file a dispositive motion.
Your case is not the only one on the docket. The Court may not be in a position to issue a ruling as quickly as you
would like one.
18. Don't assume that the law clerk is up-to-speed on the details of your case and prepared
for an unplanned "conference call" with counsel at any time.
19. Do
read what we send you regarding case
administration. Do not just file your scheduling order away and never look at it until the month before
trial. Each section of United States District
Court may have different deadlines set according to each particular judge.
20. Don't assume you will get a ruling on
the date your motion is scheduled for "hearing,"
even if you are having oral argument.
21. Don't shutdown discovery just because a
dispositive motion is pending. A ruling may
not be as prompt as you would like.
22. Don't argue the merits of your case in
phone calls with the law clerk and/or in non-merits motions.
23. Don't ask the law clerk for legal
advice. Don't ask your secretary or paralegal to ask for
you.
24. If
you are local counsel for an out-of-state lawyer, do educate your out-of-state co-counsel on the Court's policies, procedures, and deadlines. Read and
follow LR 83.2.6 regarding admission of the visiting attorney.
25. Do
pick your battles. Try to work things
out with opposing counsel before involving the Court. Don't delay, however, in seeking the Court's assistance
when necessary. For example, promptly file a motion to compel when one
is warranted. The Court will not be sympathetic to a request to continue trial
when the movant has unduly delayed in seeking the Court's assistance with an
ongoing discovery dispute.
26. If
you send a letter to the Court, do make sure you identify the party that you represent in your letter. If your letter seeks a
status conference, state what issues you would like to cover at such conference, as well as your client's
position on each such issue.
27. Don't ask/expect the law clerk to
"run interference" for you with the judge. Similarly, remember that the law clerk often is just a messenger for the
judge. If you are displeased with
something the judge has done or said, do not "take it out" on the law clerk.
28. Do
read your scheduling order very carefully, as soon as you receive it, and
plan your discovery and motion practice accordingly. Inmost sections,
dispositive motions and Daubert motions must
be filed in time to be heard by "X" date. So, to know your deadline
for filing these motions, you must find out the last motion day available and count back 15 days prior to that hearing date.
Mark this date with a big star - and share it with your opponent. This deadline almost
always falls prior to the discovery cut-off.
So, if certain depositions are needed to support or oppose an anticipated motion, make sure they are set early.
Regarding
briefs:
1.
Do be an
advocate for your client, but don't overstate
your position.
2.
If you are making certain
assumptions regarding a factual dispute in making an argument, do inform the
Court of that.
3. Don't assume that, if you ignore an issue raised by opposing counsel, that
the Court will do the same.
4.
Don't wait until the reply memorandum to address what
you should have covered in your
original supporting memorandum. At the
same time, however, if you
"need" to file a reply memoranda, definitely do seek leave to do so.
5.
While it is not expected
that you always quote relevant text from depositions or other documentary evidence into your brief, do provide
some summary indication of the
substance of that evidence, which is helpful.
6. Don't expect
the law clerk to do your legal research for you.
7. When submitting long briefs or multiple briefs
addressing several topics (e.g. cross
motions for summary judgment), do
be sure to use headings and sub-headings and consider providing a table of contents
and list of cited authorities.
8.
Do put page numbers;
they are a must.
9. When multiple motions are pending/being submitted
at the same time in a particular case,
do identify the motion addressed by an opposition memorandum by its filing date or record document
number.
10. Do memorize
LR7.5E regarding the due date for submitting opposition memoranda.
11. If
oral argument is being heard on a motion and you want the judge to have considered
a reply memorandum before oral argument, please do submit it asap! Filing a reply late on the day before or the morning of the hearing insures that it probably won't be read before the
hearing.
12. Do
double-check to make sure that you have included all of your exhibits and all pages of the exhibit. Tabbed (not stamped or
stickered) exhibits are always
appreciated and a list of the exhibits by number or letter is heaven!
13. If dates are important to your motion or
opposition, do consider preparing and including a chronology or time-line (with citations to the supporting
evidence) with your supporting
memorandum.
14. If supporting or
opposing a motion requires discussing a number of persons, and you anticipate
that the Court may have difficulty in remembering "who is who," do consider including a list of names of the relevant
persons, their title, etc.
15. Please do
proofread your motion; it should
go without saying that all case cites
should be double-checked and shepardized.
Finally:
- If you should concede an argument, do so.
In my part of the country, each trial judge has his or her own particular way of preparing for trial. Contacting the judge's law clerk is part of trial prep. It doesn't hurt to write these rules down, unless the court has already done it for you, and keep them in a 3-ring binder for future reference. I would still contact the court clerk to make sure that nothing had changed. Keeping your own checklist for each judge sure comes in handy.
Posted by: practical legal paralegal | November 30, 2004 at 01:30 PM