• November 18, 2009

The Federal Bar Association November lunch today featured the Honorable Janie S. Mayeron (U.S. Mag. Judge, D. Minn.): “What I Know Now That I Should Have Known (a/k/a Wished I Had Known) Then: The Judge’s Observations (with 20/20 Hindsight) of the Practicing Lawyer.”

Judge Mayeron’s address covered five areas of litigation she deals with:

  • Pretrial Conference
  • Motions and Oral Argument
  • Sanctions
  • Protective Orders
  • Settlement Conferences

A substantial amount of the points Judge Mayeron raised were (or should be) common sense and distilled down to this:  be respectful of the Court and the Court’s time.  So, for example:

  • Do not ignore the requirement that a Rule 26(f) Report be concise in your description of the case.  (Do not treat this quick-sketch overview of the case as a rough draft of your final argument.)  
  • In motions, get to the point but put things in context.  Don’t assume the Court will have arcane expertise that you have developed over years of education or on-the-job and concede weak arguments — don’t waste the Court’s time (and preserve your credibility as an advocate).  Along the same lines, don’t forget to recognize and appreciate the policy implications of positions you advocate, avoid the disconnect where Lawyer A writes the brief and Lawyer B argues the motion (adding brand new arguments not in the brief!).
  • With motions, only include exhibits the Court needs for the motion and understand that exhibits filed under seal put the Court in a tough spot because the Court is a public forum, and they do not like Court orders to be under seal.  While recognizing that there may be very good reasons to designate particular things as confidential, there is rampant over designation which complicates the Court’s job.  
  • Be reluctant to bring motions for sanctions.  The vast majority of disputes in litigation occur in circumstances where reasonable minds can disagree on the proper procedure or outcome.  
  • In settlement conferences, be on the same page with your client, educate your client, get to know your client, and it might help the Magistrate Judge facilitate settlement if you educate the Court as to your client (is she a deliberative “peel the onion” analytical thinker or a “get to the bottom line” result-oriented person?).

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