Just over five years have passed since I was appointed in 1999 to serve as a United States District Judge for the Northern District of Illinois. Though I am consistently impressed by the diligence and care with which most lawyers handle cases in our court, unfortunately I also witness a number of recurring missteps generally (but not always) by lawyers less experienced with federal court practice. In this article, I will discuss some of the basic do’s and don’ts of practice in the Northern District.
Do Learn the Judge’s Courtroom Practice and Procedure:
Lawyers sometimes criticize our court for the proliferation of practices that are judge-specific, i.e., mundane matters such as days motions are heard, how much notice is required to present a motion in court, how and when discovery and other deadlines are set and so on, all these have a tendency to vary from judge to judge. But our court is not unique in this regard; my experience as a practicing lawyer was that there were nearly as many ways of doing things as there were judges. For better or for worse, judge-specific practices are a fact of life to which lawyers must adapt.
In our court, once you know the judge to whom your case is assigned, you can find out a good deal via the Internet. Go to our court’s web site, www.ilnd.uscourts.gov, click on "judges," and then click on your judge’s name. This will take you to the judge’s web page, which will identify particular procedures that the judge expects lawyers to follow. Don’t stop there. Talk to other lawyers who have had cases before the judge. If you happen to be in the Loop on a day when the judge is holding a court call and you have a few spare moments, sit in the courtroom for 30 or 45 minutes. This will give you a feel for how the judge handles day-to-day issues that arise in civil litigation.
Do Allege a Party’s Citizenship and Subject Matter Jurisdiction in the Complaint:
Federal courts have limited jurisdiction. Generally speaking, we are permitted to hear civil cases in which the claim is based on federal law, or in which the parties are citizens of different states.1 These general requirements are well known, but frequently lawyers trip over the details, particularly in diversity cases.
a. Diversity Jurisdiction
For diversity jurisdiction to exist, all plaintiffs must be of diverse citizenship with all defendants. A corporation is deemed to be a citizen of the state of its incorporation and the state of its principal place of business.2 A partnership (whether general or limited) is considered to be a citizen of every state of which any of its partners is a citizen.3 A limited liability company (LLC) is likewise considered to be a citizen of every state of which any of its’ members is a citizen.4 If, as is commonly the case, the LLC or partnership has members or partners which are themselves entities of one sort or another, citizenship must be traced all the way through the members or partners.5
If you file a case in federal court based on diversity jurisdiction, make sure each party’s citizenship is alleged in the complaint. If you remove a case to federal court based on diversity, make sure each party’s citizenship is alleged in the notice of removal. If you do not do so, you should expect a sua sponte dismissal or remand, an order to show cause, or at least an inquiry regarding the parties’ citizenship.
Even if the judge does not bring up the point, it is best to get subject matter jurisdiction cleared up as early as possible. It is not all that unusual for the Seventh Circuit to hear post-judgment appeals in which it discovers that subject matter jurisdiction was lacking. When that happens, the court vacates the judgment and puts everything back to square one. It is unlikely that you or your clients will find anything humorous about this if it happens to you.6
b. Amount in Controversy
The other requirement for diversity jurisdiction is that the amount in controversy exceed $75,000, exclusive of interest and costs.7 When a defendant removes a case to federal court based on diversity jurisdiction, the notice of removal should allege that this requirement is met. If this might be subject to question, you should give an explanation in the notice of removal.
The amount in controversy requirement poses particular problems for removal of personal injury cases, due to Illinois’ prohibition on stating an ad damnum except as necessary to comply with the rules of the judicial circuit where the case is filed.8 In a given case, this may leave it unclear whether at least $75,000 is in controversy, and may put in doubt when the case becomes removable to federal court (under 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days after the defendant’s receipt of the copy of the pleading, motion, or other paper from which it may first be ascertained that the case is removable). Our court has adopted Local Rule 81.2, the purpose of which was to set a bright-line rule to permit parties to identify when a case becomes removable based on diversity of citizenship. The Rule provides that when the plaintiff’s state court complaint does not contain an express ad damnum exceeding the requisite amount, the defendant’s notice of removal must include a statement by each defendant that it has a good faith belief that the amount in controversy exceeds the jurisdictional amount, and an admission by the plaintiff in response to an interrogatory or a request to admit facts (by affirmative admission, failure to deny, or failure to respond timely) that the jurisdictional amount is met.9 It is still an open question how this Rule interacts with the provisions of the removal statute,10 and the Rule is currently being reexamined. But, the safest course is to comply unless and until the Rule is changed.
Do Assume That Deadlines are Final:
Nearly all of the judges in our court will fairly early in the case, set a schedule for amending the pleadings, completing discovery and possibly, for filing dispositive motions. This is required by Federal Rule of Civil Procedure 16(b), but the Rule does not speak to the particular deadlines that should be imposed, nor do our court’s Local Rules currently prescribe any particular time frames. Different judges may have different ways of setting schedules. Some have a presumptively-applied schedule based on the nature of the case; some will leave it to the lawyers to propose dates, and accept those dates unless they seem unreasonable; and some use a combination of these approaches.
When I practiced law, my experience was usually that federal judges imposed stricter and shorter deadlines than the ones I received in the state courts in Cook and DuPage Counties. I think this is largely a function of two factors. The first is a combination of having individual assignment of cases and the fact that the calendars of judges in our District tend to be less crowded than those of state judges in those counties. The natural result of more individualized focus is that the judge will nudge the parties along more than would occur if he or she were not responsible for the case from start to finish. The second factor is that Congress has required federal judges to pay attention to the prompt disposition of cases; we must report cases which take more than three years to resolve.11 Whatever the reason, on average you will find yourself facing more and shorter deadlines in federal court that in state court, though the severity and flexibility of these deadlines differs among judges.
a. Assume Discovery Cutoff is Written in Stone
Among the important deadlines that will be set is a deadline for completing discovery. The best way you can think about a discovery cutoff date is to assume it is written in stone. Often it is, and you need to organize things accordingly. But, even if the date might ultimately be adjusted by the judge, you will be better off if you assume no extension will be available.
A short illustration, drawn from innumerable cases over which I have presided: procrastination comes naturally to most of us; why start something today if you have six or nine months to get it done? In the short run, other priorities seem more pressing. So during the first few months of the discovery period, you put the case on the back burner, or at most you proceed at a relaxed pace through the process of serving written discovery and responding to the other side’s requests. It makes no sense to take any depositions until you have all the written and document discovery finished, so you put off scheduling depositions. But the process of getting the information from your client to answer the other side’s discovery, and of getting the other side to give you what you were looking for, tends to drag on. Each side’s procrastination feeds off that of the other side, and before you know it, only a month or two remains before the cutoff date. At this point, concern starts to set in. You start the process of trying to schedule the depositions, working around the schedules of both lawyers and the witnesses, and perhaps arranging travel. Finally you get the depositions scheduled to take place just before the discovery cutoff date. You breathe a sigh of relief. Then the inevitable happens. Scheduling conflicts develop, requiring depositions to be rescheduled. Or when preparing one of your witnesses for deposition, you learn for the first time about another person with helpful information who you now need to locate and depose. Or when taking the deposition of one of the other side’s witnesses, you discover that there is additional information you should have requested from the other side or more witnesses you should be deposing. Now you have reached the end of the discovery period. You go before the judge on a motion to extend the cutoff date. What happens? The answer, of course, depends on the judge and the particular circumstances of the case, but there is a good chance you will be left high and dry. The judge will explain that you made your own bed, and now you must sleep in it, and your request for an extension will be denied. This is a fairly common scenario in our court.
How do you avoid this? Assume at the beginning that the discovery cutoff date cannot be moved, and plan the case accordingly. Build into your planning the possibility – actually, the strong likelihood – that the unanticipated will happen. Don’t "back-load" your discovery, saving all the important depositions for the end of the discovery period. There’s nothing wrong, in the abstract, with holding off scheduling depositions until written discovery is completed, but if that’s your plan, make sure you press your client to get the necessary responsive information, and the other side to respond completely to your discovery, far enough before the cutoff date to leave yourself plenty of leeway.
If you have to seek an extension of a discovery deadline, don’t assume the agreement of opposing counsel will carry the day. Assume that you will need to explain to the judge, preferably in the motion itself but at least in the courtroom, what discovery has been completed, what discovery remains to be done, and why the original deadline cannot be met. Don’t wait until the last minute to seek the extension, and if you delay the request until after the cutoff date set, you can fairly safely assume that your motion will be denied.
Under our Local Rules, discovery must be completed by the cutoff date, not just served or noticed.12 In other words, if the discovery cutoff date is January 31, January 20 is too late to serve interrogatories (the Rules entitle the other side to thirty days to respond), and a deposition noticed for February 2 is out of time, even if you served the notice or subpoena on January 30. You may find some judges willing to relax this requirement in some cases, and others who will permit counsel to conduct discovery by agreement after the cutoff date, but at least an equal number do not allow these alternatives, so plan accordingly.
Do Comply with Disclosure Requirements:
a. Mandatory Disclosures
In most types of cases, Federal Rule of Civil Procedure 26(a)(1) requires the parties to make certain disclosures, without awaiting a request by the other side. These include identification of the witnesses and documents the party will rely on to support its claims or defenses; a computation of any category of damages the party will claim and the documents on which it is based; and disclosure of any insurance that might be available to satisfy a judgment. Be serious about your disclosures under this Rule, and make sure you update them as required by Rule 26(e); if you omit a witness or information that you were required to disclose, under Rule 37(c)(1) you may be precluded from using the witness, information, or document at trial or in support of or response to a motion.
b. Expert Witness Disclosures
Federal Rule of Civil Procedure 26(a)(2) requires disclosure of the identity of any person who may present opinion testimony within the scope of Federal Rules of Evidence 702, 703, or 705. A witness "retained or specially employed to provide expert testimony," or whose duties as the party’s employee regularly involve giving expert testimony, must also provide a detailed report containing a complete statement of the opinions the witness will offer and the basis for each opinion, the information considered, and other disclosures. This is a serious requirement, but one that infrequent federal practitioners sometimes ignore. That is a bad idea. If your expert does not provide a report, the odds are that he or she will not be permitted to testify.13
Sometimes attorneys provide expert reports that fall well short of the Rule’s requirements, expecting that the other side will take the expert’s deposition and obtain any missing information – thus arguably making the noncompliance harmless. But if you take this risk, you may find, as I have seen in a number of cases, that your opponent will forego the deposition, wait for discovery to close, and then move to bar your expert. At that point you are likely to find yourself up a creek without a paddle.
If the judge has set a deadline for the submission of expert disclosures, that is the deadline you have to meet; if you miss it, once again the odds are that the expert will not be permitted to testify. But if the judge has set no specific deadline, you are not off the hook. Federal Rule of Civil Procedure 26(a)(2)(C) sets a schedule that applies in the absence of one set by the judge: the disclosures must be made at least 90 days before the trial date or the date the case is to be ready for trial, unless your expert is intended solely to rebut the other side’s expert on the same subject, in which case your disclosure must be made within 30 days after the other side’s disclosure.
Do "Meet and Confer" before Filing Motions on Discovery:
a. Discovery Motions
Our court’s local rules have long required attorneys to "meet and confer" before filing motions on discovery-related issues;14 the Federal Rules of Civil Procedure now include a similar requirement.15 Even though Rule 37.2 and its Illinois counterpart, Illinois Supreme Court Rule 201(k), have been around for many years, it is still quite common for lawyers to ignore them or to pay them mere lip service.
If your discovery-related motion does not reflect your compliance with Rule 37.2, it is likely to be denied summarily. Most lawyers are familiar enough with the applicable rules to at least mention Rule 37.2 in their discovery motions. But, compliance with the Rule requires far more than mere recitation that its terms were met. The primary reason this Rule exists is that our collective judicial experience tells us that most discovery disputes can be resolved by discussion and are better resolved that way, as the parties and counsel have a better handle than a judge ever could on what they need and what it takes to respond to a particular discovery request. For this reason, it is usually in the parties’ best interest to resolve their disputes without judicial intervention.
In other words, Rule 37.2 is not just a technicality; it is a worthwhile rule. You need to be serious about complying with it. By complying, I do not mean what lawyers often do – sending each other letters in which they reaffirm their insistence upon a particular discovery request or objection and accuse the other side of engaging in a fishing expedition or obstructionist behavior. In fact, an exchange of letters, without personal consultation, is generally speaking insufficient to comply with Rule 37.2. Attorneys who know the case should actually meet with each other and engage in good faith consultation about the particular discovery request. That does not mean that you are always required to compromise to comply with the Rule, but you do have to be willing to explain and justify to your opponent (and later to the judge) the reasons for your request or objection. The old saw that requiring an attorney to explain his reasons would require disclosure of "work product" will get you nowhere in this context.
b. Protective Orders
Do not assume that judges in our District will rubber-stamp a protective order just because the lawyers have agreed to it. In particular, protective orders that allow lawyers, without limitation, to identify documents as "confidential" and therefore keep them out of the public record are unlikely to be approved even if the lawyers agree to them. This is so for two reasons. The First Amendment guarantees the public access to proceedings in its courts,16 and "[a]s a general proposition, pretrial discovery must take place in ... public unless compelling reasons exist for denying public access to the proceedings."17 Consistent with these requirements, the Seventh Circuit has admonished trial judges not to give "a virtual carte blanche to either party to seal whatever portions of the record the party wanted to seal."18 Rather, the judge must make a finding of good cause before permitting any part of the public record of the case to be sealed.19
How to you prepare a proposed protective order that will pass muster? First of all, include limitations on the types of documents that can be deemed confidential, and make sure the limitations are something an attentive judge likely will be able to live with – for example, information the disclosure of which might result in an unwarranted intrusion on the privacy of a non-party, or actual trade secrets. The more specific you can get, the more likely it is that your proposed order will be approved. General categories like "information that a party believes to be confidential," "material believed to contain commercially sensitive information," or "material believed to contain trade secrets," are likely to be rejected as overly broad.20
Even with such limitations, your order may not be approved if you are unable to explain to the judge’s satisfaction why the information needs to be kept confidential. This should include "specific examples of articulated reasoning," and not just boilerplate or conclusory statements.21
Don’t File Motion to Dismiss Based on Failure to Plead Facts:
a. Motions to Dismiss: Fact Pleading
Fact pleading rules are more relaxed than their Illinois counterparts. Fact pleading is not required in federal court, except for the narrow category of matters that Federal Rule of Civil Procedure 9(b) & (g) say must be "stated with particularity" (the circumstances constituting an alleged fraud or mistake, and "items of special damage"). Despite this, it is common to see motions to dismiss under Rule 12(b)(6) that rely on the plaintiff’s failure to plead sufficient facts in the complaint. In our court, generally speaking, judges will not require a response to a motion that relies on such an argument; rather, the motion will be summarily denied. A motion to dismiss under Rule 12(b)(6) tends to be a waste of time and energy, unless you are dealing with a complaint that is subject to Rule 9(b) or (g); an allegation critical to making the particular type of claim is missing; or there is a purely legal issue that bars the particular complaint or affirmative defense. If you have doubted what the drafters of the Federal Rules of Civil Procedure intended, look at the form complaints, prepared by the drafters, that follow those Rules. They are quite general and conclusory, debunking any notion that fact pleading is required.
b. Summary Judgment Motions: Undisputed Material Facts
A party moving for summary judgment in our District cannot simply file a motion and memorandum with supporting evidence attached. Local Rule 56.1 also requires the filing of a statement of the undisputed material facts that the moving party contends entitles it to summary judgment. This statement must be supported, point-by-point, by citations to evidence that is to accompany the statement. A motion for summary judgment that does not comply with Rule 56.1 is likely to be denied summarily without requiring a response.
The party opposing summary judgment is required to respond, point-by-point, to the moving party’s Rule 56.1 statement, stating whether it agrees that the particular fact is undisputed, and if it disagrees, citing and attaching the evidence on which it relies to show a dispute. Failure to make a proper response is deemed an admission that the fact is undisputed and thus may result in summary judgment being entered in favor of the moving party. The party opposing summary judgment must also include a statement of any additional facts that it believes require denial of summary judgment, supported in the same manner as the moving party’s Rule 56.1 statement.
The law permits the judge to overlook a party’s noncompliance with Rule 56.1, but it is extremely unwise to assume that you will catch a break. The Seventh Circuit cases are legion which affirm a grant of summary judgment that was based on the opposing party’s noncompliance with our Rule 56.1.
What do you do if the opposing party’s Rule 56.1 statement or response does not conform to the Rule – whether because it omits supporting evidence, the evidence does not support the statement, the evidence is inadmissible, or for some other reason? The practice of individual judges differs. A common way that lawyers deal with this situation is to file a motion to strike the opposing party’s Rule 56.1 statement. My sense is that some judges prefer this procedure, but others will not permit such motions, or at least will not allow them to be briefed. I generally deny motions to strike and tell the parties that issues regarding the sufficiency of an opponent’s Rule 56.1 submission should be part of the response or reply brief filed after the offending submission. I think this method improves the judge’s ability to understand the litigant’s position; its arguments in favor or in opposition to summary judgment are all in one place, rather than divided between separate memoranda on summary judgment and the motion to strike.
Don’t Fall Prey to the Common Pitfalls at Trial:
The number of trials has been steadily decreasing in our court as it has been everywhere. Currently only about 1.5% of all civil cases filed in federal courts go to trial. But trials still take place, and there are some common pitfalls that you should avoid.
a. Don’t Wait Until the Last Minute for the Court Reporter
The court reporter works independently from the judge. If you believe you will need a "daily" copy of the trial transcript, make sure you make the necessary arrangements with the court reporter, well in advance of trial. The court reporter needs to make arrangements for others to assist, and if you wait until the last minute, this may be impossible.
b. Don’t Interrupt Proceedings to "Publish" Exhibits
Sometimes lawyers use exhibits during a trial without making them contemporaneously available for the jury to review. This is nearly always unwise. If the exhibit is important enough to use, it is important enough to give to the decision makers so they can follow along. But, do not assume that you will be permitted to interrupt the proceedings to "publish" exhibits one at a time. Rather, use one of the many methods available to make sure the jury has the exhibits available contemporaneously with their use: juror notebooks containing the exhibits; blow-ups of important exhibits; projection via an evidence camera or similar device. Our court has portable units available that include an evidence camera (for the Luddites among you, this is a type of overhead projector that does not require transparencies) and video and audio tape players. If you want to use one of these systems, make sure you contact the judge’s staff well in advance of trial so that you can get "dibs" on the device for your case.
c. Don’t Disregard Local Rules Requirements
Most judges will require the preparation of a "final pretrial order" before a case goes to trial. Local Rule 16.1 and the accompanying forms set a standard format for pretrial orders. These can be fairly cumbersome, and my sense is that most lawyers consider the Local Rule to impose too heavy a burden on the decision to go to trial. Some judges have set less onerous requirements that are posted on their web pages, and others are willing to waive particular aspects of the Local Rules format in some cases. If it’s not posted on the web page, the only way you will find out is to ask, and I encourage you to do so; the worst the judge can do is say no.
Preparation of a final pretrial order requires both sides to cooperate; among other things, the full Local Rules version requires a stipulation regarding undisputed facts, as well as an agreed statement of contested issues. The purpose of these requirements is to streamline the trial and ensure that court time is not wasted dealing with matters that are agreed or that are extraneous to the parties’ dispute. Litigants disregard the Local Rules’ requirements at their peril; noncompliance may serve as a basis for sanctions, including exclusion of evidence, dismissal if you represent the plaintiff, or default if you represent the defendant. If you find the other side’s counsel is not cooperating, do your best to get his or her attention, but if you can’t, file an appropriate motion to bring the matter to the judge’s attention – well before the pretrial order is due.
1 See 28 U.S.C. §§ 1331 & 1332
2 28 U.S.C. § 1332(c)(1)
3 Carden v. Arkoma Assocs., 494 U.S. 185 (1990)
4 Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998)
5 Mutual Assignment & Indemnification Co. v. Lind-Waldock & Co., 364 F.3d 858, 861 (7th Cir. 2004)
6 See, e.g., Belleville Catering Co. v. Champaign Market Place, LLC, 350 F.3d 691 (7th Cir. 2003) (vacating judgment based on lack of diversity, ordering dismissal, and directing counsel to prosecute the case in state court without charging additional fees)
7 28 U.S.C. § 1332(a)
8 See 735 ILCS 5/2-604
9 N.D. Ill. LR 81.2
10 See, e.g., Rubel v. Pfizer Inc., 361 F.3d 1016, 1020 (7th Cir. 2004); Campbell v. Bayou Steel Corp., No. 03 C 8563, 2004 WL 1125901 (N.D. Ill. 2004)
11 See 28 U.S.C. § 476(a)(3)
12 See N.D. Ill. LR, App. A ("Standing Pretrial Procedure Order and Forms"), ¶ 4
13 See Fed. R. Civ. P. 37(c)(1)
14 See N.D. Ill. LR 37.2
15 See Fed. R. Civ. P. 37(a)(2)
16 See Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 873, 897 (7th Cir. 1994)
17 Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994)
18 Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999)
20 See, e.g., Citizen’s First, 178 F.3d at 945; Alexander Housing LLC v. Int’l Brotherhood of Elec. Workers, No. 04 C 1650, 2004 WL 1718654, *2 (N.D. Ill. July 29, 2004)
21 See, e.g., Andrew Corp. v. Rossi, 180 F.R.D. 338, 341 (N.D. Ill. 1998)
Judge Matthew F. Kennelly was appointed to the United States District Court for the Northern District of Illinois in April 1999. He is a 1981 graduate of Harvard Law School and served as law clerk to United States District Judge Prentice Marshall from 1982 through 1984. He then joined the Chicago law firm of Cotsirilos, Tighe & Streicker, Ltd., where he handled trials and appeals of civil and criminal cases in federal and state courts as well as professional disciplinary matters.