5 minute read
Civility Matters, A guide to practicing in the Northern District of California Federal Court, by Corrine Bielejeski
Civility Matters:
A guide to practicing in the Northern District of California Federal Court
Advertisement
by Corrine Bielejeski, with thanks to the Hon. Kandis A. Westmore, Magistrate Judge, Northern District of California
Civil L.R. 11-4(a)(4)1
Those of us who practice in the federal court are well aware that we have to follow not only the California Rules of Professional Conduct, but also those rules which apply to the Northern District of California. A quick look at the judges’ standing orders will find you referred to the Guidelines for Professional Conduct, which have applied to practitioners since 2014.2 The guidelines contain not only aspirational statements like being punctual, but specific examples of how an attorney should act in particular circumstances. It is perhaps not surprising that attorneys who practice in the Northern District expect opposing counsel to act civilly and for the court to enforce its rules.
If you are new to federal court civil practice, here are some tips. You can expect to have meet and confer sessions with opposing counsel in person or via Zoom. You can expect to prepare a sometimes lengthy joint pre-hearing conference statement. You are expected to meet face to face with the other side to work out discovery disputes and prepare a joint letter discussing the issues. Failure to file a joint pre-hearing statement may be grounds for sanctions.
The common thread in all of these rules is that you should be working with opposing counsel, not against them. Remember, you both have the same goal: to have the judge rule on your dispute.
Sometimes attorneys, in zealously advocating for their clients, attempt to withhold information from the other side. Federal Rule of Civil Procedure 26 imposes an obligation at the beginning of the case to turn over information “without awaiting a discovery request.” This includes a copy or description of all documents used to support your case. There is no hiding the ball in the bankruptcy court either. Debtors must disclose all of their income, expenses, assets,
and debts.3 In criminal matters, the parties must have a discovery conference within 14 days of entering a not guilty plea to discuss the disclosure schedule, which can be extended to 21 days if the parties enter into a stipulation.4
The next item counsel often fight about is timing. We have all heard stories about the attorney who says they aren’t available for a deposition in the next three months. Guidelines 3 and 4, among others, discuss scheduling. When opposing counsel calls you with a bad case of laryngitis, you should agree to a continuance. We all know the court is going to grant it anyway. Don’t serve opposing counsel with a motion when you know they are on a two-week vacation, unless you are prepared to agree to extend the time to file a response.5 Don’t try to slide extra provisions into a stipulation. 6 These sorts of tricks look great on TV, but they are not how attorneys are expected to practice in the federal bar.
So what is an attorney, with a duty to zealously represent their client, supposed to do when an opposing party is being particularly difficult? You should remain civil, agree to a continuance as long as the client will not be adversely affected, even if the other side refused to give you one, and respond promptly to the other side, even when you feel like making them wait.7 Importantly, it is also our duty to make sure our clients know that the court expects us to act reasonably. That duty includes not making frivolous motions.8
The third item responsible for attorney disagreements is discovery. It can be time consuming, costly, and mentally draining. Guideline 9 provides an exhaustive list of examples to follow during the discovery phase of litigation, but the key is in the first sentence: “A lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost effective and just resolution of a dispute.” Unfortunately, some attorneys do not follow these tenets.
When discovery dispute happens, the parties are expected to try to resolve it and only file discovery motions “sparingly.”9 If you must file one, look at your judge’s standing order. For example, Judge Westmore’s standing order requires the parties to have lead trial counsel meet and confer in person or via video conference to settle matters first.10 If they do not agree, the parties prepare and file a jointly signed letter within five business days of the meet and confer. The letter must clearly state each side’s position on the relevant discovery request and the legal reasoning for their position.
In the event of a dispute during a discovery event, such as a deposition, the parties are still expected to try to resolve it themselves. However, if the parties cannot agree, they can call a judge’s courtroom deputy and see if the judge is available to intervene. If the court is available, they can address the issue via teleconference.
The goal with all of these discovery rules is to keep an open dialogue between the parties and information shared efficiently. To that end, sanctions motions are expected to be limited to those cases where the parties have already tried the methods outlined in the Guidelines and one side continues to delay discovery inappropriately.11
If you are new to federal court practice, it may feel like you are being asked to be too friendly toward opposing counsel. Embrace civility. There are plenty of facts and legal arguments to fight about without having to fight about scheduling a deposition.
1. All local rules citations are to the Northern District of California’s civil or criminal local rules.
2. https://cand.uscourts.gov/forms/guidelines-forprofessional-conduct/ 3. Fed. R. Bankr. P. 1007
4. Fed. R. Crim. P. 16 and Crim.L.R. 16-1 5. Guideline 5
6. Guideline 19
7. Guidelines 8, 4 and example b, 18 and example d
8. Guidelines 2 and 10
9. Guideline 10, example a
10. https://www.cand.uscourts.gov/kaw_standing_order_general_11-08-2021/ 11. Civil L.R. 37-1
MCLE SELF STUDY
Earn one hour of MCLE credit by answering the qusetions on the Self Study MCLE test available on our website: www.cccba.org/forattorneys-mcle-overview/mcle-selfstudy.
Send your answers along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non members), to the address on the test form. Certificates are processed within two weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540.
Corrine Bielejeski owns East Bay Bankruptcy Law & Financial Planning in Brentwood, CA. She served as law clerk to the Hon. Edward D. Jellen (ret.) in the U.S. Bankruptcy Court for the Northern District of California, Oakland Division before entering private practice. She is a CEB update author and regularly speaks on bankruptcy issues.
