By W. Steven Paleos
Reprinted from The Washington Lawyer, January/February 1998
Engraved in granite over a nearby court building entrance is the motto “Justice Delayed Justice Denied.” It’s not another empty promise for a just, speedy and inexpensive determination of every action. In that court – the U.S. District Court for the Eastern District of Virginia, Alexandria Division – the time from filing to trial for civil cases is seven months, less than half the national median of 18 months.1 The district maintains this record even while handling about 13 percent more filings per judgeship than the average district.2 The “Rocket Docket,”3 as this court has been dubbed, should serve as a national model for our judicial system.
When compared to the District of Columbia, the Eastern District of Virginia truly stands out. In the nation’s capital the median time between filing and disposition at trial is 23 months.4 Yet there are 114 percent more filings per judgeship in the Eastern District of Virginia than in the District of Columbia,5 a fact that raises a serious question regarding the administration of justice in the District.
The frustrations of delayed dispositions is particularly acute for innocent, deep-pocket defendants in civil lawsuits in the District of Columbia. I know of one motion for summary judgment that was filed in November 1993 but was not ruled upon until September 30, 1997. Despite the frivolous nature of the claim against the defendant in that case, it is a contingent claim nonetheless and has had to be disclosed to regulatory bodies, on every credit application, on insurance application renewals and to the defendant’s spouse, partners and employees. A four-year wait to get a resolution, which in the Alexandria Division would have taken just two weeks, makes a dead letter of Rule 1’s admonition to administer the rules “to secure the just, speed, and inexpensive determination of every action,” and the Rule 56 directive to render judgment “forthwith.”
While a “decision on the merits” is the raison d’etre for the D.C. courts’ reluctance to enforce procedural rules, it seems that little thought is given to the defeat of litigants’ rights through expense, delay and uncertainty. Very often the delay, expense and uncertainty of future proceedings, rather than the actual merits of a controversy, drive parties to settle – in many instances on terms that are unfair.
Trials in the Eastern District are focused and efficient. It would not surprise anyone familiar with the jurisdiction that required 20 or more days to try took place there.6 And only 8 percent of the trials resulting in a verdict of judgment in the Eastern District required four to nine days of trial; compare that with the national figure of 19 percent.7
The system and the underlying culture in the Alexandria Division of the Eastern District of Virginia permit that court to serve litigants better than other courts do. This distinction is particularly important now, when the creation of federal remedies for social dislocation caused by 30 years of failed social engineering has increased the number of litigants impelled to seek “justice”8 by filing federal lawsuits.
The Alexandria Division of the Eastern District of Virginia – which I’ll refer to simply as “the court” from this point on – achieves this phenomenal performance through a variety of means. These include general adherence to a standard scheduling order; extreme judicial reluctance to grant continuances; requiring the parties to schedule hearings on motions for “the soonest possible Friday”; the bench’s notable diligence in disposing of every motion presented each week; and a serious, structured approach to settlement that is fair to all sides.
No system is perfect. Another article could be written about the exact way in which these mechanisms play out, and how they sometimes create traps for the unwary. But there is no doubt that the court delivers speedy, efficient proceedings. And the single most important reason it can accomplish this major feat is that hearing dates are scheduled by the lawyers themselves.
The practice of permitting the lawyers, rather than the court, to schedule hearings is similar to what is done in the courts of general jurisdiction in Virginia. Just as in the Fairfax and Arlington circuit courts, the court holds hearings each Friday to resolve pending motions. Not some pending motions-all pending motions.
To place a motion on the docket, a lawyer need simply serve a notice of hearing along with the motion and brief in support. Indeed, the scheduling order issued in every case provides that “[a]ll motions, except for summary judgment, shall be noticed for hearing on the earliest possible Friday before the pre-trial conference.”9 For nondispositive motions, which are heard by the magistrate judges, notice need only be filed the Friday before the Friday hearing. For dispositive motions, which are always heard by Article III judges, 10 days’ notice is required.
Given that the judges prepare for every oral argument, that they routinely rule from the bench on the day of argument, and that they make rulings and fashion remedies that meaningfully narrow the issues in dispute, this simple directive ensures that, absent malpractice, all of the facts necessary to try the case will have been developed by the time the pretrial is scheduled.
There is no better, faster cure for recalcitrant counsel taking untenable positions than a quick trip to the courthouse. It has been my experience that the costs of litigation are kept to a minimum when you can use the court to promptly discipline wayward opposing counsel. Even when opposing counsel’s position is colorable, or reasonable, going to court to find out just how the judge will rule is invaluable. There is no better way than that to resolve differences and narrow the issues.
Often the judges who hear dispositive motions – whether Rule 12 or Rule 56 – focus and narrow the cases by ascertaining what the respective counsel know regarding the facts. When asked pointed, intelligent questions on the record, in open court by a sitting federal judge, counsel tend to come prepared and to be rather forthright regarding the facts and the strength of their case. Even if the matter cannot be resolved by way of a dispositive motion, that record will enable the parties to identify and thus frame the true areas of dispute.
Nondispositive motions “must be filed the Friday before the Friday for which noticed, with responses due not later than the Wednesday before the hearing.” The mere availability of a judge to hear and rule upon a dispute actually reduces the number of disputes because the imminence of an appearance before a smart, hardworking judge forces counsel to analyze more carefully their own and their opponent’s position. It almost completely eliminates the possibility of counsel knowingly taking an unwarranted position, a circumstance that, in many jurisdictions, it remains for so long that the case becomes unduly complicated and expensive.
Absent judicial oversight, diligent counsel have no effective means to deal with stonewalling or an opposing counsel who takes an erroneous view of the respective parties’ obligations during the discovery stage of the proceedings. Fortunately, the magistrate judges, who hear all nondispositive motions, are experienced and pragmatic enough not to reward sharp practices by either side. Given the workload and the short time frame for reading, analyzing and formulating questions for oral argument often has the magistrate judges and their clerks “coming in early and leaving late.”
Most often, nondispositive motions are discovery motions. And as might be expected, discovery practice in the Alexandria Division is sublime in its focusing and streamlining effect. Broad discovery, as dictated by the rules, is permitted, but discovery that would not likely lead to admissible evidence is not. The court’s willingness to promptly hear and dispose of discovery disputes puts a quick end to any improper manipulation of the discovery process. If properly pursued and framed, the court will take the time to understand the problem, and will threaten and, if necessary, impose a fair and effective remedy sufficient to do justice. If the parties have different views of the appropriate legal standards or type of evidence that would be probative to the factual resolution of an issue, they can get that difference resolved. Further, if dissatisfied with the magistrate’s ruling, a party can appeal the disposition to an Article III judge.
While the direct objective of any discovery argument may be to promote resolution of a discovery dispute, the collateral benefits include a ventilation of the most problematic areas of the pending dispute. Making those determinations requires the respective lawyers to analyze, explain and put into factual context the elements of plaintiffs cause of action and defendant’s defenses and enables the magistrate judge to rule in a manner that narrows the issues and focuses the case. Furthermore, the magistrate judge’s rulings are very consistent and, therefore, predictable. For example, tax returns and other sensitive information must be disclosed, but only after a protective order is entered. Experienced counsel know to spend their efforts tailoring an appropriate protective order rather than fight over whether the information will be disclosed. The law of attorney-client and work product privilege is made less mysterious by one magistrate judge’s form letter to counsel advising them of the controlling precedent. Again, the effect is to further frame and refine the true areas of dispute.
While the court treats all counsel with courtesy and respect,unfair or unsupported positions and other dilatory practices are simply not tolerated.
The Alexandria Division of the United States District Court for the Eastern District of Virginia offers litigants something rare and valuable: a “just, speedy, and inexpensive determination of every action.” It does so in two ways. One is the system itself, with its scheduling order, local rules and strict adherence to deadlines. The other is the diligence of the bench and the work ethic that such diligence inspires.
8 Between 1991 and 1995, “the total number of weighted civil and criminal filings per district judgeship [which are based on weights that account for differences in the time required for judges to resolve various types of civil and criminal actions] increased 16 percent.” Id. at 17.
9 The local rules provide that motions shall be made “returnable to the time obtained from and scheduled by the Court for a hearing thereon.” Local Rule 7(D). In the Alexandria Division, no such scheduling is necessary inasmuch as all motions are to be set for the “earliest possible Friday” according to the scheduling order.
W. Steven Paleos is a trial lawyer and a principal in the law firm of Brincefield Hartnett Maloof & Paleos, P.C., in Alexandria, Virginia. He has served as local counsel in the United States District Court for the Eastern District of Virginia, Alexandria Division, for a number of national law firms in commercial and intellectual property cases.