This article first appeared in the New York Law Journal, 01/30/06
Local Motions
Although the foundations of civil procedure are built upon common blocks, there are there considerable variations from jurisdiction to jurisdiction – hence the need for local knowledge! We’ve included some interesting twists below:
1. In New York County Supreme Court, filing a motion for summary judgment may stay all discovery in the case, but there are numerous exceptions to this rule set forth in several different sets of rules. Under New York Civil Practice Law and Rules, all “disclosure” (The CPLR refers to “disclosure” rather than “discovery”) is stayed as soon as a motion for summary judgment is filed. BUT, individual judges in New York County, including all the judges in the Commercial Division of New York County Supreme Court, have, in essence, opted out of this rule.
2. In the United States District Court for the Central District of California, a party intending to submit sections from a deposition transcript in support of a motion must lodge the entire transcript with the court Ten Days before the hearing on the motion.
3. In Cook County Circuit Court, a party bringing a medical malpractice action must include an affidavit from a physician. And the defendant can file a counter affidavit in place of an answer.
4. In San Francisco Superior Court, a party must call the day before the hearing on a motion to confirm the hearing, or it will be taken off calendar. The afternoon before the hearing, the court will issue tentative ruling on the motion. If neither party calls to request the hearing, then the hearing is taken off calendar.
It is often not the thrust of the sword, but the thousand tiny pin pricks that make life painful. For litigators, one such pin prick is the hunting down and making sense of court rules--especially in districts that the practitioner might not be familiar with. This has become more of a pressing concern as many individual litigation practices have expanded beyond the immediate geographic region to be national in nature.
For most of the history of the American legal profession (i.e. 1800 to 1970), lawyers tended to specialize by geography, not by practice area. This influenced their practice inclinations two ways: first, it tended to foster generalists, rather than attorneys who honed in on a very specific area of the law. Second, it spawned generations of attorneys whose generalist practice focused on a particular city. Given these realities, a client in the 1970s would almost never hire a Los Angeles lawyer to handle a case in San Francisco (the narrow specialties of patent law and criminal defense are two possible exceptions to this rule).
The practice landscape began to shift in the 1980s, as firms began to dramatically expand in terms of the number of attorneys employed and the number of offices maintained. With this expansion came a greater level of specialization; an attorney was no longer a litigator, but an environmental litigator or antitrust litigator. With specialization, attorneys were asked (and required) to expand the geographic scope of their practice, both to respond to market demands, and to deploy firm expertise where it was needed. Thus came the rise of the national litigator. As merger activity among firms has only increased in the last few years, the trend toward litigators having increasingly national practices will only accelerate.
Before the “national litigation” phenomenon, the quest for information on court rules was fairly straightforward: Call down the hall to the seasoned attorney who knew the local rules backwards and forwards. In many New York firms, the onus for staying on top of the rules often falls upon the Managing Attorney, who assumes responsibility for keeping up to date with all the rules for the New York state and federal court systems (with the assistance of a battery of clerks). For the infrequent occasion when an attorney was asked to deal with a case in an unfamiliar jurisdiction, the firm librarian might be asked to chase down rules. In these situations, the attorney in Manhattan would almost always retain local counsel to provide expertise on the rules for that jurisdiction. Sometimes the relationship with local counsel could be exceptional, and at other times it might be—well, less so.
Now, of course, the rules (as it were) have changed. Attorneys are regularly tasked with filing motions and pleas around the country. While the partner running the case is ultimately responsible for meeting all rules requirements, the brunt of the burden of rules compliance tends to fall upon associates and other more junior members of the firm. They may still call the Managing Attorney seven times a day with questions about Cook County or Los Angeles County rules, but, as you might imagine, this is not the behavior that endears an individual to the powers that will be ultimately deciding his/her partnership fate. So, young associates are more often than not left to fend for themselves. They may turn to firm librarians for some assistance, and here they find good practical guidance on locating rules. However, most firm librarians have never practiced law, and can’t advise attorneys on what to do with the rules. There may also eventually be push back from the library staff—in early days of practice, many young attorneys have undoubtedly heard librarians mutter under their breath, “You’re the one who went to law school. You figure this out!”
Suffice it to say, there can be dire consequences if the rules question is not figured out. Everyone has heard horror stories of cases that are lost before they even get started because a filing deadline was missed, or less drastically an embarrassing hearing in which an attorney was chastised for failing to heed local rules.
The problem here—or the opportunity, if you happened to be in the software or publishing business—is fairly evident. Attorneys with a national litigation practice need an efficient way to retrieve and make sense of filing rules for jurisdictions far and wide. Until recently, most attorneys relied on a combination of sources, including local counsel and the rules and guidelines available on various court websites. While more and more courts are making their rules available on the Internet, different states organize their court rules differently, and an attorney faced with an unfamiliar jurisdiction—and likely multiple sets of statutes and local rules—faces a daunting task.
A year or so back, Catherine B. Sullivan, Calendar Court Services Manager for Kirkland & Ellis, was tasked with finding a better way for the firm’s attorneys to locate court rules and the practical information that would make them easy to comply with. “For years, I had struggled to weave the court rules, court procedures and statues together for the litigators,” Sullivan said. After a bit of research, she came upon a web-based service called SmartRules (www.smartrules.com). “When I heard about SmartRules, I was excited to see that the "weaving" had been done for me,” Sullivan continued. “An added plus was that the organizing had been done by attorneys, thus relieving me - a non-lawyer- of having to always be careful of how this information was presented. We tell attorneys to take a look at SmartRules before they do anything else.....and the feedback we've gotten is great. They like the coverage, the format and the easy links to other information."
An example will quickly illuminate how SmartRules works: say an attorney in our New York office is working on a case in Los Angeles, and wants to file a motion for summary judgment in the Los Angeles County Superior Court. Using SmartRules, the attorney specifies the jurisdiction where the case is pending (in this case Los Angeles County Superior Court), and the procedure she wishes to file (motion for summary judgment), using simple pull-down menus. The system gives her step by step instructions for handling this motion, including hyperlinks to the statutory law that pertains to the rule; the information can be printed or saved to her hard drive.
Every few years, a truly remarkable technology comes along that changes the way legal professionals work (Blackberries come to mind here). While I’m not sure I’d place the SmartRules service in this category, it is undeniably a time-saver, and a liberator. Most of the litigators I work with have better things to focus their time and energy on than chasing after rules—things like sharpening their case strategy and the persuasiveness of their arguments. With a service like SmartRules, our attorneys can be confident that they’ve covered all the details of the procedure, and that their papers will be in compliance when they’re faced with a case in a strange jurisdiction. Not rocket science, but then again, many of our most useful tools are the most simple in their construct.
Chris Santella writes frequently on legal technology, fly fishing and golf from his home in Portland, Oregon.
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