Jud'al Control

Case Mgmt

  1. Views
    1. Trad'al C/L
      1. Judge is neutral & not active
      2. Atty's R active & parties have autonomous rts 2 dec.
      3. Atty & parties competent
      4. Fairness better than eff.
      5. Jud'al activism bad b/c comes @ expense of atty / party autonomy
    2. Moderate Case Mgmt View
      1. Judges must become more involved 2 focus issues
      2. Lawsuits 2 big so should trip down @ pretrial
      3. Adversarial sys. not sacred
      4. Systemic int., not case by case justice
      5. Judges not driven by $
    3. Extreme Case Mgmt View
      1. Judge is only thing btwn abuse & soc.
      2. Substantive rts out of hand b/c of proced'al reforms
  2. Findings
    1. Early Jud'al Mgmt Lwr Cases But Incr. Cost
    2. Accelerated Discov. Does Same W/o Incr'ing Cost
  3. Settlements
    1. Pretrial Conf's: Rule 16
      1. Ct can facilitate settlement
      2. Ct can take approp. axn 2 settle & use spec. proced. 2 assist
    2. Judges Can Sanction if Fail 2 Settle
      1. Sanction against party failing 2 partic. in good faith 4 pretrial conf. / settlement disc.
    3. Views
      1. Activist view that better 2 settle than try b/c no justice in trial
      2. Skeptical view is indiv. b/c research not show settlement by jud'al encouragement
      3. Abstentionist view that settlement is bad b/c
        1. Jgmt is more final
        2. Settlement is secretive & has inequalities
        3. Judge should enforce law, not incr. priv. int.'s

Sanctions

  1. Types of Sanction Rules
    1. Rule 11: Atty's Sig. on Ct. Doc's
      1. Not apply 2 discov.
      2. Good faith & rsbl inq. 4 ct doc's
    2. Rule 16)f: Pretrial Conf.
      1. By party motion / sua sponte
      2. Sanction 4 failing 2 obey order / no appearance 2 conf. in good faith
    3. Rule 26)g: Atty's Sig. on Discov. Doc.
      1. By party motion / sua sponte
      2. If no subst'l justific. & certific. made in viol. of rule
    4. Rule 37)b: Motion 2 Compel
    5. Rule 41)b: Dismissal Invol.
      1. On merits & prejud.
      2. If P fails 2 prosec. / comply w/rules, D may move 4 dismissal
    6. Counsel's Liab. 27 USC 1927
      1. Atty pers'ly pay 4 excess cost & fee if multiply prcg unrsbly & vexatiously
    7. Contempt Pwr of Ct: 28 USC 401)3
      1. Fine / imprison @ discretion 4 disobedient / resist lawful writ
      2. Criminal contempt when
        1. Contemnor knows the order that's clear & def.
        2. Contemnor wilfully disobeys
    8. Ct's Inherent Auth.
      1. Atty must obey ct's orders even if seem illegal / unConst'al
  2. Proced. of Sanction
    1. Least Severe Sanction Adeq. 2 Accomplish Intended Purpose
      1. Mild Sanction
        1. Reprimand
        2. Cost shifting
        3. Deny fees / expenses
        4. Remedial axn
        5. Grant / deny X
      2. Serious
        1. Demotion / removal of atty / party
        2. Enjoin party from starting
        3. Precl., waiver / strike
        4. Dismissal
        5. Vacate jgmt
        6. Suspend / disbar
        7. Fine
        8. Contempt
        9. Refer 4 possible crim. prosec.

Jud'al Surrogates

  1. Magistrates (EXAM)
    1. Stty'ry Pwr 4 Mag's: 28 USC 631
      1. Dist ct. appt's
      2. Must have been @ bar @ least 5 yrs. & competent
      3. Not rel'ed by blood / marriage 2 appt'ing judge
      4. No mag's over 70 yrs. old
      5. Only serve 8 yrs. as mag.
      6. Remove 4 incomptency, misconduct, neglect, / disability
      7. May act like dist ct's in findings & det's
    2. Mag. Can Conduct Hrg's
      1. Can conduct hrg's & submit findings of fact & rec. 4 disposition
      2. But can't 4 posttrial relief of crim. offense & prisoner's petitions
      3. Can conduct hrg's of dispositive motions 2
    3. Mag. May Conduct Prcg's of Trial
      1. Can do so by consent 4 jury / nonjury civil matter
    4. Appealing Mag. Dec's
      1. To approp. ct. of appeals
      2. Parties can consent 2 appeal 2 dist. ct. 4 appeal on record
    5. Mag. Det's Pretrial Matters Only
      1. Can't hear dispositive matters
      2. Can't hear post-trial matters
    6. Dispositive v. Nondispositive
      1. Nondispositive
        1. Mag. can hear & det. such pretrial issues
        2. Dist. ct. limited in rev. by stand. of clearly err. / contrary 2 law
        3. Incl's
          1. Discov.,
            1. Prelim. & final pretrial conf.
            2. Status conf. & settlement conf.
          2. Motions 2
            1. Postpone / expedite trial
            2. Dismiss w/leave 2 amend
            3. Sever / consolidate
            4. Set aside default jgmt
            5. Intervene
            6. Add parties
            7. File 3rd party complaint
            8. Extend X / amend pleadings
            9. Substitute counsel
          3. Prep. of class axn
          4. Inadm. evid.
          5. Not allowing W 2 testify
      2. Dispositive
        1. Mag. can only make findings & rec. but can't det.
          1. Parties' consent is exception
          2. Once consent, waived rt. 2 dist. judge & is irrevocable
        2. Dist. ct. makes de novo det. b/c
          1. Article 3 creates assumption of Const'al rt.
          2. S /P that jud. must B indep. 4 balance of pwr so perm. & compensation of dist. ct. not created by stt. is imp.
        3. De novo det. is when judge makes final dec., not de novo hrg
        4. Incl's
          1. Injunction
          2. Jgmt on pleadings
          3. Sum jgmt
          4. Dismissal
          5. Suppress evid. of crim.
          6. Dismiss class axn
          7. Dismiss 4 failure 2 state claim
          8. Invol. Dismiss
          9. Post-trial matters
          10. Anything else that has compl. effect of being dispositive
  2. Masters
    1. Rule 53
      1. Party pays 4 compensation
      2. Exception 2 refer 2 master, not gen. rule 4
        1. Complex matter if jury trial
        2. Exceptional condition if nonjury
        3. Parties' consent
      3. Masters report on findings & rec.
    2. Master's Role
      1. Pretrial matters like discov.
      2. Settlement negotiation
      3. Decree implementation
  3. Platoon Sys.: Lead Counsel Appt'ed by Ct
    1. Desig. Lead Counsel
      1. Ct should check it's proper & has auth.
      2. Check that not limit client's int.

Atty's Fees (EXAM)

  1. Amer. Rule
    1. Def.
      1. Each party bears own cost unless auth. 2 shift fees
      2. Dif. from Eng. Rule of winner recov'ing atty's fees from losers
      3. Purpose 2 allow meritorious suits 2 go forward
    2. C /L Exceptions
      1. Common fund
        1. Class axn damage suits where named P gets $ by common fund
        2. Consolidate cases / create common fund 2 pay lead atty
        3. D bears part of P's expenses like jt. doc. depository
      2. Bad faith in litig.
        1. Ct has inherent pwr 2 shift atty fee if party is vexatious / bad faith
      3. K
      4. Priv. Atty Gen. (no longer exception)
        1. Cts created in 1970's 4 priv. parties litig'ing 4 pub. good
        2. But Sup ct struck down so only allow as if stt's allow
    3. Stt'ry Exceptions
      1. Antitrust
        1. Recov. treble damage & atty's fee 4 prevailing P
        2. Ct's discretion 2 w/hold atty fee if P misbehaves
      2. Civil rts
        1. Prevailing party may recov. atty's fees by 1964 Civil Rts Act
        2. If P prevails, then no bad faith reqt
        3. If D prevails, est. P acted in bad faith during litig.
      3. Litig. Misconduct: 1927
        1. Atty pers'ly pay 4 opponent's atty fee 4 multiplying litig. frivolously / vexatiously
  2. Lodestar Approach 2 Det. Atty Fee
    1. Rsbl Fee 4 Compl'ly Prevailing Party
      1. Start w/ (# of hrs rsbly expended) (rsbl hr'ly rate)
        1. MKt rate payment of atty is presumtively rsbl hr'ly rate
        2. Obj. portion of test
      2. Adjust up / down based on other consid. / multiplier factors
        1. Results obtained is most critical factor
        2. X & labor req'ed
        3. Novelty & difficulty of quest's
        4. Skill req'ed
        5. Precl. of empl. by accepting the case
        6. Customary fee
        7. Conting. fee / not
        8. X limit by client / circ.
        9. Exp.
        10. Undesirability of case
        11. Nat. & length of prof'l rel. w/client
        12. Award in similar cases
      3. Not supp'ed 2 B precise rule
    2. Fee 4 Partially Prevailing Party
      1. Segregate claims lost from claims prevailed if possible
      2. If can't seg., then consid.
        1. P's level of success +
        2. Fee award incl'ing X on lost claims is consistent w/overall results obtained
        3. If extraord. results, then may enhance based on multiplier factors
  3. Challenges 2 Lodestar Approach
    1. Disadv's 2 Lodestar
      1. Consumes jud'al X
      2. Delays recov. 2 P's
      3. Discourages early settlement
      4. Not really obj.
    2. Percentage of Recov. as Alt.
      1. Set % of atty fee early on
      2. Adjust up / down based on extraord. circ's
      3. Adv's
        1. Less X
        2. Settle sooner
        3. Predictable
      4. Disadv's
        1. Some get more / less than really deserve
        2. Incentive not 2 do as much work
        3. Might incr. total recov.
        4. If more than 1 firm involved, do Lodestar anyway
        5. Can't use if settle 4 other than cash
    3. Hybrid Approach
      1. Start w/Lodestar of (# of hrs rsbly expended) (rsbl hr'ly rate) + up / down by factors
      2. Then % of recov. applied so adj. up / down if Lodestar is off from % of recov.
  4. Ct's Broad Discretion 4 Atty's Fee
    1. Discretion Over
      1. Amt
      2. Choice of method of calc'ing
      3. What's rsbl

This material is copyrighted by the author. Use of the material for profit is expressly prohibited without the written permission from the author.

Ms. Haeji Hong

May 4, 1998

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