Pre-trial Practice in the Western District of Wisconsin: A Law
Clerk's Perspective
By Kendall W. Harrison
Many cases in the U.S. District Court for the Western District of
Wisconsin can be won by filing a well-supported dispositive motion,
saving clients and attorneys the expense and burden of trial. Despite
this fact, lawyers routinely overlook the court's procedures and other
basic guidelines, thereby endangering their chances of success.
| You can improve your opportunity
for victory on paper, especially on summary judgment motions, by
following court procedures and other basic guidelines. Although the
guidelines are not a recipe for a sure win, adhering to them ensures
that the court will be able to devote its full attention to the merits
of your position. |
This article offers suggestions to improve one's opportunity for
victory on paper, especially on summary judgment motions. Much of the
advice may seem obvious to seasoned practitioners, but even veteran
attorneys make mistakes that may cost them a victory. Although the
comments apply specifically to the Western District of Wisconsin,
attorneys appearing exclusively in the Eastern District should find some
of the advice pertinent to their practices.
Before starting
Before filing a complaint or an answer in the Western District of
Wisconsin, lawyers are advised to review Stuart G. Gullickson's and
Scott C. Minter's Federal Civil Practice in the Western District of
Wisconsin. The book traces the steps of a civil lawsuit in the
Western District from its initiation through post-trial motions and
answers many procedural questions.
Attorneys also should know the court's local rules, which cover:
admission of lawyers, the use of magistrate judges, discovery disputes,
and contacting jurors.1
Complaint
A complaint filed in federal court should include a statement
alleging the grounds for federal jurisdiction. Most plaintiffs make
certain to explain whether they are proceeding under federal question
jurisdiction, 28 U.S.C. § 1331, or diversity jurisdiction, 28
U.S.C. § 1332. Be careful, however, with allegations of the amount
in controversy and citizenship under section 1332. The
amount-in-controversy requirement was increased from $50,000 to $75,000
in January 1997. More important, section 1332 requires the parties to be
"citizens" of different states. Thus, allegations should refer to the
parties' citizenship and not to their residency. For example, litigants
might reside in Wisconsin but still be Minnesota citizens because they
intend to make their permanent home in that state. A federal court will
not be certain of its jurisdiction unless the parties' citizenship is
alleged properly.
A complaint should include a section alleging enough facts to lay the
basis for the legal claims, without going much beyond the necessary
minimum. The Seventh Circuit has made it clear that plaintiffs risk
pleading themselves out of court by providing too extensive a factual
recitation in the complaint.2
Claims should be stated individually. Include a specific heading for
each claim: for example, "Claim I - Title VII, 42 U.S.C. §
2000e(2)." Providing courts with the exact statutory or common law basis
for the claim will make it much easier for them to address these claims
later on dispositive motions. It also helps plaintiffs' attorneys
develop a clearer understanding of the claims on which they are
proceeding. When attorneys are not specific, it is difficult for both
opposing parties and courts to ascertain plaintiffs' legal theories. If
a complaint does not clearly identify the number and nature of the
claims advanced, it likely will be read narrowly and against the
interests of the plaintiff.
Motion to dismiss
Defendants who intend to file a motion to dismiss for failure to
state a claim pursuant to Fed R. Civ. P. 12(b)(6) should recognize that
courts are required to accept the facts as 
alleged
in the complaint. If a defendant disagrees with the veracity of the
plaintiff's factual allegations, a 12(b)(6) motion is not the time to
raise that dispute. Federal courts cannot consider affidavits or other
evidence in resolving such a motion. Lawyers who already have important
evidence when a motion to dismiss is due should reserve that evidence,
develop the case through discovery, and present the court with a summary
judgment motion at the appropriate time.
Motions to dismiss under Fed. R. Civ. P. 12(b)(6) are appropriate in
at least two instances. In the first instance, a defendant contends that
the plaintiff failed to allege the minimal facts necessary to make out
the elements of each claim. Because of the liberal pleading requirements
of Fed. R. Civ. P. 8, the Western District rarely grants this type of
motion. Defense lawyers sometimes file this type of motion because the
facts in the complaint do not allow the defendant to determine the
precise grounds for the plaintiff's claims. The better way to clear the
confusion is to serve contention interrogatories on the plaintiff.
Contention interrogatories can help to pin down the factual bases for
plaintiff's legal claims at the outset of the case.
In the second instance, the defendant argues that even if all the
alleged facts are true, the complaint still fails to state a legally
cognizable claim. Take for example a situation in which plaintiffs bring
an equal protection claim alleging that a private landlord refused to
rent them an apartment because they are African-American. Although
plaintiffs might have a claim under the Federal Fair Housing Act, they
would not have an equal protection claim because the landlord is not a
state actor. Thus, even assuming that the landlord's actions were
racially discriminatory, plaintiffs would not have stated a cognizable
equal protection claim and defendant's motion to dismiss would be
granted.
Discovery
Discovery in the Western District of Wisconsin resembles discovery
elsewhere, with one possible difference: timing. Discovery proceeds
rapidly in the Western District. Deadlines for discovery and the filing
of dispositive motions are set at a preliminary pre-trial conference,
which the court holds within two months after the complaint is filed.
The final date for filing dispositive motions is a mere four months
after that conference. Although the court permits discovery to continue
for another three months after the dispositive motion deadline,
attorneys must have conducted enough discovery by the time dispositive
motions are due to be able to respond to facts raised in an opponent's
summary judgment motion.
The judges of the Western District are not sympathetic to lawyers who
assert that they have not had adequate time to conduct discovery and
therefore cannot respond to the opposing party's motion for summary
judgment. The court will accept as undisputed any facts that a party
tries to oppose with a statement such as, "Disputed because we have not
had time to depose that witness." Alert the court 
promptly
if more time is needed to complete discovery and cite Fed. R. Civ. P.
56(f), which permits a party to seek additional time to respond to a
summary judgment motion for certain, specified reasons. The court will
be far more inclined to consider a request for additional time if an
attorney has followed the proper procedures.
Summary judgment
A motion for summary judgment pursuant to Fed. R. Civ. P. 56 presents
the opportunity to win a case without the expense and risk of trial.
Obviously, not all cases can be resolved on summary judgment. In cases
where the parties agree on the key underlying facts, however, summary
judgment is an effective tool to resolve the case expeditiously. Even if
the entire case cannot be resolved on summary judgment, it still may be
worth filing a motion for summary judgment on a subset of the legal
claims raised in the complaint. Such a motion, commonly known as a
"motion for partial summary judgment," may help to limit the trial to
viable claims only, thereby saving time and expense. In addition, such a
motion will help to educate the judge about the factual and legal issues
involved in the case.
Before filing a summary judgment motion, pay close attention to the
"Procedures to Be Followed on Motions for Summary Judgment in the
Western District of Wisconsin," a copy of which is sent to all parties
along with the preliminary pre-trial conference order. The judges
vigorously enforce the procedures set forth in that document.
Summary judgment motions in the Western District contain two
important components: proposed findings of fact and conclusions of law;
and supporting briefs.
Proposed findings of fact and conclusions of law
The biggest mistake lawyers make in summary judgment motions is
overlooking the importance of the proposed findings of fact.
(Conclusions of law are significant, but are less crucial than the
proposed findings of fact, especially if the party's legal arguments are
set forth clearly in its briefs.)
The proposed findings of fact offer the parties an opportunity to
present the court with all the facts necessary to support their legal
arguments. Even the best legal arguments will not lead to victory if the
facts supporting the arguments are not before the court. It is critical
to adhere to the court's procedures because if the facts are not
presented properly, the court will not rely on them, even if supported
by references to admissible evidence.
Parties must set forth their proposed findings of fact in a document
separate from their briefs. While the court will read the facts section
of a brief, it will not consider any facts that are not included and
supported by admissible evidence in the proposed findings of fact. Thus,
be certain to include a proposed finding of fact for each fact relied
upon in the briefs. As explained in the court's procedures, each
proposed finding should include only one fact.
Law firms that split the responsibility for the briefs and the
proposed findings of fact between attorneys should pay close attention
to verifying that all the facts relied upon in the briefs are in the
proposed findings of fact. It is extremely frustrating to the court when
an important fact mentioned in the brief is nowhere to be found in the
proposed findings of fact. Even if it is the crucial fact in the case,
the court will not consider it in making its summary judgment
determination. It is unnecessary to document the facts section in a
brief as one might be asked to do in state court. Instead, documentation
should take place in the proposed findings of fact.
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.
|
|
Kendall W. Harrison, U.W.
1995, is Court Counsel for the Supreme Court of the Republic of Palau.
He served as a law clerk to the Hon. Barbara B. Crabb, District Judge
for the Western District of Wisconsin, from August 1995 to August
1997. |
Instead, point out the specific material facts that are legitimately
disputed. Because attorneys know the case better than the court, the
court expects attorneys to offer guidance on disputed facts rather than
ask the court to discover them on its own.
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.
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).
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