May/June 2000

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More Tips for Litigating in Federal Court by V. John Ella and John Wackman

The U.S. District Court for the District of Minnesota recently announced the adoption of several amendments to its local rules of practice. These include amendments to Local Rule 5.1 and 5.2 regarding filing procedures; a new advisory committee note to Local Rule 7.1(b)(2) regarding evidentiary materials submitted with reply briefs; the formal adoption of a magistrate-based ADR process at Local Rule 16.1; and a new rule regarding the discipline of court appointees. Anyone practicing in federal court should take the time to review these changes and be familiar with the local rules in general. At the same time, the Minnesota Supreme Court has promulgated amendments to the Minnesota Rules of Civil Procedure which adopt, in large part, aspects of the federal rules regarding discovery and other issues. These changes were promulgated on April 18, 2000, and take effect on July 1, 2000.1 Meanwhile, the Judicial Conference of the United States is considering a batch of changes to the Federal Rules of Civil Procedure.2 Even before these changes were made, federal and state civil procedure differed in a number of key respects. These differences formed the basis for the ten "tips for litigating in federal court" which appeared in these pages in 1997 and which are outlined in the sidebar accompanying this article.3 In light of the recent changes, it seems an appropriate time to revisit the topic of federal versus state civil procedure. Here, then, are ten additional differences between litigating in federal court and state court: No Certificate of Representation, Informational Statement, or Joint Statement of the Case, is Necessary in Federal Court In state court, the party filing a civil case must, at the time of filing, submit a Certificate of Representation and Parties. See Rule 104 of the Minnesota General Rules of Practice. An Informational Statement is required by each party within the first 60 days an action is filed with the court. Id., Rule 111.02. A Joint Statement of the Case is provided for, but not required under the rules. See Id., Rule 112 generally. Judges will often require one, however, in more complex cases. None of these three housekeeping forms exists in the federal system. Federal courts have more than made up for this deficiency, however, by creating similar procedures under Rule 26 of the Federal Rules as discussed below.

V. John Ella is a lawyer at Mansfield, Tanick & Cohen, P.A. in Minneapolis. A 1994 graduate of the University of Minnesota Law School, he clerked for judges in both the Minnesota and federal courts. John Wackman is an attorney at Rider, Bennett, Egan & Arundel PLLP in Minneapolis. He clerked for judges in both the Minnesota and federal courts following his graduation from the University of Minnesota Law School in 1994.

Remember Rule 26 Requirements The many requirements of Rule 26 probably constitute the single most significant difference between filing a case in the federal system and filing in the Minnesota state court system. In an effort to streamline discovery and encourage communication between parties, the federal version of Rule 26 was significantly modified in 1993. Interestingly, the Advisory Committee Comments to the 2000 Amendments to the Minnesota Rules note that the new changes to Minnesota Rule 26 "include some of the recent amendments to the federal rule" and note elsewhere that the committee has a "longstanding preference for minimizing the differences between state and federal practice unless compelling local interests or long-entrenched reliance on the state procedure makes changing a rule inappropriate."4 Ironically, just as Minnesota has adopted these changes to Rule 26, the federal version seems poised to be modified again.5 Once a case is filed in federal court, each side must go through the four-part process outlined below. The process can be somewhat time consuming, but it serves to remind the lawyers that the case is active and prevents matters from sitting for months without activity. a. The Rule 26 Meeting Opposing attorneys must arrange for a face-to-face meeting to discuss the case, talk about discovery, and prepare a joint Rule 26(f) report. The "meeting" need only take a few minutes, and is a good opportunity for the attorneys to get to know who is on the other side. The rule also requires the attorneys to discuss settlement and ADR possibilities. b. The Rule 26(f) Report After the meeting, one side is typically assigned the chore of drafting and submitting a joint Rule 26(f) report based on the points discussed at the meeting. The drafting attorney then sends the report to the opposing attorney(s). If there is a point on which the lawyers cannot agree, which often happens, the parties can simply note the position of each lawyer "in the alternative." c. The Rule 16 Conference After the report is filed, the magistrate assigned to the case will schedule a Rule 16 Conference in his chambers. After the conference, and based on the 26(f) Report, the magistrate will issue a scheduling order.6 d. The Rule 26(a) Disclosures One of the first things listed in the magistrate’s scheduling order will be a date for the exchange of mandatory disclosures under Rule 26(a). This rule compels each side to hand over pertinent information about the case to the other side, without the need for a specific request. This provision does not exist in the Minnesota system, even with the new changes. ("The changes made to the Minnesota rule [26] have been modified to reflect the fact that Minnesota practice does not include the automatic disclosure mechanisms that have been adopted in some federal courts.")7 Note that the federal rule does not apply to class actions. You Cannot Remove a Judge in Federal Court Unlike state court rules, the federal rules do not provide an automatic right to remove the first judge assigned to the case.8 In fact, there is no set procedure for removing a federal judge for cause, although federal judges and magistrate judges regularly recuse themselves at the slightest hint of a conflict of interest or appearance of impropriety. The Administration Committee of the Conference of Chief Judges for the Minnesota state court system is currently considering a proposal to eliminate the "free strike" rule, but no change has been made to date.9

You Cannot Withdraw From a Case in Federal Court Without Court Permission According to Local Rule 83.7(a), "An attorney whose appearance is noted in a cause on file in this Court may be permitted to withdraw from representation as counsel of record only by order of Court, or as otherwise provided herein." (Emphasis added). No such provision exists under the Minnesota state rules. In practice, judges are reluctant to allow an attorney to withdraw from a case without a Substitution of Counsel unless the lawyer can show "good cause." See L. R. 83.7(c). A client’s failure to pay his bills is generally not considered "good cause." You Cannot Perform Your Own Voir Dire in Federal Court In Minnesota state court, attorneys are allowed to examine potential jurors. See Minn. R Civ. P. 47.01. Judges generally perform voir dire for the jurors in federal courts. This is somewhat more efficient in terms of time, but some commentators have suggested that voir dire by the attorneys is ultimately more effective.<V>10<P> It Is Called a Preliminary Injunction, Not a Temporary Injunction Rule 65 of the Federal Rules of Civil Procedure provides the basis for a preliminary injunction. Dataphase Systems. v. CL Systems, 640 F.2d 109 (8th Cir. 1981). Minnesota Rule 65, on the other hand, governs requests for a temporary injunction. See Dahlberg Brothers, Inc. v. Ford Motor Co., 137 N.W.2d 314 (1965). Although this is perhaps not a very significant distinction, it is one of the few examples where the federal rules and state rules use different terminology. Note that the Dataphase decision sets forth a four-part analysis to determine whether a preliminary injunction is appropriate, while the Dahlberg test, although very similar, consists of five considerations. You Must Demand a Jury Trial in Your Complaint Rule 38(b) of the Federal Rules of Civil Procedure requires a demand for jury trial to be made in the complaint or within ten days of the filing of the complaint. Local Rule 38.1 describes how such a demand should be noted on the pleadings. In state court, on the other hand, a jury trial must be requested in the party’s Informational Statement within 60 days after commencement of the action. Rule 111.02 of the Minnesota General Rules of Practice. ADR Procedures Differ Until recently, the District of Minnesota had no formal ADR system like that in the state courts. In response to the Alternative Dispute Resolution Act of 1998, however, magistrate judges are now officially designated to fulfill this role as they have traditionally with great efficacy. See L.R. 16.1. State court, on the other hand, has a different system under Rule 114 of the General Rules of Practice for the District Courts. This rule requires parties to designate what type of ADR would be appropriate and allows the court to require the parties to attend certain types of mandatory, nonbinding ADR. Discovery Motions Require Specificity; Privilege Logs Now Required in State Court Local Rule 37.2 of the federal District of Minnesota requires that any discovery motion include a "verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of the motion ... ." Many magistrates in this district enforce this rule strictly and will throw out motions for noncompliance. This level of specificity is not required in state court (although it probably wouldn’t hurt). Note that one former difference between federal and state court discovery, the mandatory privilege log, has been eliminated by the recent 2000 amendment to Minn. R. Civ. P. 26.02(e). That rule is adopted directly from its federal counterpart and requires a listing of all documents for which a party claims privilege. Expert Disclosures In Minnesota state district courts, parties must serve interrogatories to find out whether the other side plans to use an expert witness. In federal court the process is self-executing under Rule 26(a)(2). Although the state and federal systems were originally designed to be similar, over the years some significant differences have evolved between the state and federal district courts in Minnesota. This is especially true with regard to Rule 26 requirements in federal court and procedural forms like the Informational Statement in state court, even though both resulted from a desire to make the court’s job easier by encouraging the attorneys to communicate more, discuss settlement, and identify issues of particular dispute. Once a practitioner has learned the routine in state court, these tips may assist him or her in applying that knowledge to federal court as well. Notes 1. See Order Promulgating Amendments to the Rules of Civil Procedure, Minnesota Supreme Court, C6-84-2134 dated April 3, 2000. The Rule changes are available on the Web at http://www.courts.state.mn.us 2. See http://www.uscourts.gov. The proposed changes include narrowing the initial disclosure obligations under Rule 26(a) and removing the so-called "opt-out" provision, excluding eight specified categories of proceedings from initial disclosure requirements, and permitting parties to object to disclosures as inappropriate. The rules also provide for disclosures by added parties and make a slight change in the timing of disclosures. The proposed amendments also change the definition of relevance in Rule 26(b)(1) and impose new cost-bearing provisions in Rule 26(b)(2). Probably the most controversial proposed change is a limitation on depositions to "one day of seven hours" under Rule 30. Numerous other changes are in the pipeline as well, and, at this writing, as the time period for commentary has closed, it looks likely to be approved and promulgated by the Court. 3. Ella, V. John and John Wackman, "Tips for Litigating in Federal Court," 54 Bench & Bar 3 (March 1997), p. 34 ff. (See summary.) 4. See Advisory Committee Comment to Rule 11 - 2000 Amendment (stating that "[Minnesota] Rule 11 is amended to conform completely to the federal rule" to remedy what has become a "confusing array of practice requirements and remedies.") 5. See n. 2, supra. 6. With regard to scheduling orders, there is an unwritten rule that any grant of an extension of time, for example to serve an answer, even by stipulation, must be signed off by the judge or magistrate judge in federal court, whereas in state court such stipulations are commonly done by letter only. This results in part from the fact that an action is commenced by filing of the complaint in federal court but in state court it is service on the defendant that initiates the case. See "Tips for Litigating in Federal Court," supra n. 3, at 35. Once a scheduling order is in place, however, Rule 6 of both forums requires the court to approve any enlargement of time. 7. See Advisory Committee Comment to Rule 26 – 2000 Amendment. 8. For the state rule, see Minn. R. Civ. P. 63.03; see also Minn. R. Crim. P. 26.03, subd. 13(4), Rules of Juv. P. 22.03, Rule 106, Rules of Practice for District Court, Minn. Stat. §542.16, subd. 1 and 2, and Minn. Stat. §487.40. 9. See "‘Free Strike’ Could be Outta Here," 56 Bench & Bar 11 (Dec. 1999), at 14. 10. Fred D. Howard, "Judge Versus Attorney-Conducted Voir Dire," 4 Utah B.J. 13 (Oct. 1991).

1. Be aware of jurisdictional issues

2. Read the local rules

3. Make sure you are admitted

4. Know who the magistrate judge is

5. Remember to file a civil cover sheet

6. File the original plus two copies*

7. Remain at the counsel’s table

8. Be thorough

9. Know the removal and remand rules

10. Know where the judge sits

* Modified by recent amendment to Local Rule 5.2