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Pre-trial Practice
in the Western District of Wisconsin:
A Law Clerk's Perspective

Proposed findings of fact must be supported by admissible evidence. Evidentiary rules for summary judgment are the same as at trial. Although all lawyers know this, they sometimes forget, especially with respect to hearsay issues.

Confine the factual statements in the proposed findings of fact to those that tell the story about what gave rise to the particular legal dispute. Some background facts are helpful, but try not to include extraneous facts. The facts should remain in the time setting of the alleged wrongdoing. They should not describe what has happened since the lawsuit was filed, such as that someone was deposed on a given date or that another person stated something in an affidavit.

When citing authority in the record for a proposed finding, be as specific as possible. When relying upon a deposition, cite to the specific page and line number that support the proposed finding. If the entire deposition has not been submitted into the court's record, do not forget to inform the court of the affidavit to which the cited portion of the deposition is attached.

Be sure to double-check that the documents cited support the proposition made. Parties often are tempted to distort the authority to make it say a little more than it actually does. If the other party does not notice, the court will. The court does not appreciate unwarranted extrapolation. Occasionally, a party's citation will have nothing to do with the proposed finding. In that case, the court has no option but to reject the proposed finding.

When responding to proposed findings of fact, attorneys should not rely upon proposed findings that they have submitted with a cross-motion for summary judgment. This is confusing and requires the court to look back to the citations in the proposed findings of fact for support. Include the direct citations in your responses. It is dangerous to dispute a proposed finding of fact by asserting that it is "irrelevant." If the court agrees, all is well. However, if the court disagrees, the fact will be taken as true.

Some attorneys include their opponent's proposed findings of fact in the same document in which they are responding or replying to those proposed findings of fact. The relevant proposed finding of fact is simply retyped and inserted directly before the response or reply. Such a procedure is helpful to the court because it is easier to look at one document rather than two. Attorneys should consider doing this as a regular practice.

Briefs

Although writing styles differ widely among attorneys, a good brief should be clear, concise and complete. These three qualities often are in tension with one another; the best brief writers know how to strike the proper balance. Attempting to be complete while remaining concise is a difficult trick.

Do not assume that the court knows the substantive law at issue in the case. This rule is most applicable to novel issues of state law that federal judges do not confront regularly. It also is true on more common matters like employment discrimination or constitutional law. There is little downside risk of insulting the judge's intelligence by starting with basic propositions and proceeding to more complicated matters only after a primer. Persuading judges to support your arguments is unlikely if they feel that you are talking above them. Federal judges usually are generalists and may not be familiar with the intricacies of a specific area of law. The exception to this proposition is the standards applicable to summary judgment itself. There is no real need to spend any time detailing the general standards that govern summary judgment. The court applies these standards to hundreds of summary judgment motions each year and is well-acquainted with them.

Understand the jurisdictional basis for the claims raised. If the case is raised under the court's diversity jurisdiction, remember that the court must apply state law as it believes the state supreme court would.³ Cases from the state appellate courts are persuasive evidence of how the state supreme court might handle an issue, but federal courts are willing to entertain arguments that the supreme court would go the other way.⁴ Recognize that the court is not likely to expand the boundaries of state law on a novel issue. In the interest of comity, federal courts are cautious in announcing what state law is.⁵ For expansions of state law, turn to the state courts.

If the case is premised on the court's federal question jurisdiction, remember that the case law of the U.S. Supreme Court and the Court of Appeals for the Seventh Circuit is binding. Consult these authorities and cite the relevant case law before including arguments about the relevance or persuasiveness of cases from other jurisdictions. Often, attorneys will cite cases from the Wisconsin state courts and miss the relevant Seventh Circuit precedent. The court will conduct its own research to verify that the parties have cited the relevant authorities. Attorneys risk antagonizing the court by failing to cite important cases or lines of precedent or by attributing to cases legal conclusions not actually reached therein.

Apply the law to the facts. Sometimes, lawyers will find and cite all the relevant case law but will not explain how that case law pertains to the facts at hand. Leaving the application of the law to the facts to the court is a dangerous proposition. The court is not a party's advocate and expects the lawyers to raise all the arguments the lawyers believe necessary. In situations where attorneys have not raised arguments that should have been raised, the court will not do it for them.

In applying the law to the facts, keep in mind the basic standard by which summary judgment motions will be measured. What material facts, if any, are in dispute? Why is the party entitled to judgment as a matter of law? Make sure you have provided the court with the answers to these questions in a way that supports your position. If material facts remain in dispute, do not simply announce this to the court.

Be wary of cutting and pasting standard language from previous opinions. It is not impermissible to reuse past work, but make sure that it is directly applicable and does not stray into issues that mattered only in the previous case. Using too much standard language makes the court think that a lawyer has not thought about the specifics of the case at hand.

Discuss claims or issues one at a time. For example, if a claim has three separate elements, list the elements and discuss each in turn.

Do not disparage your opponent or other courts. This may be tempting and even warranted under some circumstances, but it risks antagonizing the judge. In the words of Judge Easterbrook, "invective is a poor substitute for analysis."⁶

Conclusion

Chances of success on a pre-trial dispositive motion in the Western District depend heavily upon the facts and the applicable law. Nonetheless, a skillful advocate can present the facts and the law to the court in a manner that enhances the possibility of victory. The foregoing guidelines are not a recipe for a sure win. Following them, however, will ensure that the court will be able to devote its full attention to the merits of your position.

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Endnotes

¹ The local court rules for the Western District can be accessed through the Court's internet site.

² See Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995).

³ Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). See also Boland v. Engle, 113 F.3d 706, 713 (7th Cir. 1997); McGeshick v. Choucair, 72 F.3d 62, 65 (7th Cir. 1995), cert. denied, 116 S. Ct. 1834 (1996).

⁴ See King v. Damiron Corp., 113 F.3d 93, 95 (7th Cir. 1997); Arnold v. Metropolitan Life Ins. Co., 970 F.2d 360, 361 (7th Cir. 1992).

⁵ King, 113 F.3d at 97.

⁶ Newlin v. Helman, 123 F.3d 429, 437 (7th Cir. 1997).