I had the privilege of moderating the federal judges panel at the State Bar's 2014 Litigation Update Institute last Friday. To explain the photo, one of the high points of the seminar was when Judge Xavier Rodriguez related that one lawyer who was not a frequent practitioner in federal court described the courthouse as the "Temple of Doom" for his type of cases. Given that he practiced in the area of representing plaintiffs in foreclosure cases, there was general agreement that the description was well taken (although the photo perhaps more accurately portrays the Fifth Circuit for mortgage foreclosure litigants) but in any event it became the nickname for federal court practice throughout the seminar.
As I posted on previously, the panel included U. S. district judges Rodney Gilstrap of Marshall representing the Eastern District, Lee Yeakel of Austin representing the Western District, and Andrew Hanen of Brownsville representing the Southern District. We had hoped to include Judge Vanessa Gilmore from Houston as well, but due to illness she was replaced at the last minute by Judge Xavier Rodriguez of San Antonio, who was making his third appearance on the program after critiquing the presenters at the ABOTA Masters In Trial program the previous day, then moderating a judges panel on the Texas Supreme Court, on which he formerly served.
I prepared a list of 16 topics to ask the judgs about, and not surprisingly we only got through five. They were:
Summary of docket
I began the discussion by asking the judges to describe their dockets to the audience, since all had radically different dockets, ranging from heavy criminal work before Judge Hanen and to a heavy patent docket and minimal criminal work before Judge Gilstrap.
General Court Administration
The judges spent a substantial amount of time explaining the effect of the sequestration and government shutdown on court operations as well as related funding and vacancy issues affecting their practice. Judge Rodriguez has served on national committees addressing these issues and was able to tell the audience a great deal about how the federal courts operate, as well as how the caseload is distributed among the various districts.
I asked the judges if they thought that the Twombly and Iqbal cases have had a substantial effect on their docket, and they generally did not think that it had. My recollection was that Judge Yeakel in particular emphasized that the purpose of pleadings was notice, and that counsel would perhaps be best to advised not to engage in motion practice when they do know the substance of the allegations that are being made against their client.
Proposed New Discovery Rules
I brought up the subject of the currently pending proposals which would change the rules for discovery scope, among other things. None of the judges saw a particular problem with the existing rules, and several emphasized the importance of the obligation to meet and confer. Judge Hanen in particular emphasized that he looks for the reasonable position, i.e. what do you need, and not the extreme position, i.e. what could you ask for, and he and Judge Gilstrap emphasized that discovery disputes were an opportunity for parties to lose or preserve credibility.
There was one notable disagreement here. Judge Hanen and Judge Yeakel, as I recall, noted that they have required parties claiming that documents do not exist or if searches have been made to so state on the record as opposed to in motion practice. Judge Rodriguez interrupted to warn the attendees that that was a trap – that because attorneys have an ongoing duty to supplement and could never know for certain when a document might appear, they should not certify under oath that something doesn't exist (I'm paraphrasing so don't hold me to exact language here). Undeterred, Judge Yeakel said that he requires it anyway.
I cannot now remember who told me about a sign that Judge Yeakel had up in his chambers, but it gave me the idea to ask the judges if they had some saying or sign up in their office, along the lines of Harry Truman's favorite famous "the buck stops here" sign that he kept on his desk while President - and if they didn't, what would they want lawyers to think they had up. Judge Hanen didn't have a sign, but he did admit that he had a phrase that he used so often that it annoyed his staff and that was to say "that's why they pay us the big bucks". Judge Rodriguez did not have a sign either, but remembered seeing one in a former judge's chambers that said "smile" because the judge was aware that he tended to have a dour temperament on the bench. Judge Gilstrap's sign is another Truman–ism – a coffee mug that says "if you can't take the heat, get out of the kitchen." Most informational of all however, which is what I was trying to get at, was Judge Yeakel, who has a sign in his chambers that says "No Smoking. No Dispositive Motions."
It was a quick 45 minutes, but I think both the judges and the audience enjoyed it, and we all learned something. I appreciate the judges taking the time to come down for the panel, and TexasBarCLE for inviting me to moderate it.