Lessons from the Bench

The Bencher | September/October 2023

By Judge J. Philip Calabrese

I took the bench just over four years ago, after practicing for nearly two decades in all aspects of complex civil litigation. The questions I most often get from those I used to litigate with and against are “What is the biggest surprise?” or “What do you wish you knew in practice now that you are a judge?” I have not had particularly good answers to those questions in the past, but as I now reflect on my time on the bench, I offer these thoughts in response.

Workload

Compared to my time in private practice, I work as hard or harder on the bench. Day in and day out, there are status conferences and hearings to keep cases moving, set schedules, and make sure discovery is progressing. Even short conferences where not much appears to happen require a lot of preparation that the parties do not see. Add on top of that discovery disputes, criminal proceedings (primarily changes of pleas and sentencings), and routine motions for protective orders or to change schedules, and managing the docket is something of a relentless grind. Still, none of that accounts for the time necessary to handle significant motions, hearings, and the occasional trial. Though I do my best to address all of these matters in a timely fashion, and understand the importance of doing so, I have a better sense now of why lawyers sometimes feel as though their clients’ cases languish or that courts do not pay attention to their matters.

Pet Peeves

To try to make cases move more smoothly and quickly given the workload and demands of the docket, I have developed some internal operating procedures and other practices. Almost all of these are contained in my Civil Standing Order, which is available on the Northern District of Ohio’s website: https://bit.ly/AIC_Bencher_Calabrese. Also, most of the items in my Civil Standing Order originate from my experience in practice or in response to particular problems that have arisen in managing my docket.

Although the Civil Standing Order might appear lengthy, it addresses most of the questions counsel ask about how to approach many common situations in most civil litigation. Yet, at times, lawyers elect not to follow these procedures or, for some reason, think that they do not apply to their situation when they do.

Practical Lawyering

There are a few fairly simple rules, or best practices, that lawyers should know and follow. First, if counsel need to change the date or time of a status conference or hearing, do not wait until the last minute. By then, my clerks and I have spent a good amount of time preparing. We have scheduled the matter to the exclusion of others. If you are not prepared or have a conflict, you need to let your opposing counsel and the judge know as soon as possible. Emergencies happen. Everyone understands that. But most of the requests for an extension I receive are not emergencies. Typically, they result from not having been able to do what the parties represented (or I ordered) them to do. Generally, that is not a good excuse. Last-minute requests for continuances impose a very high cost. Absent a very good reason, I usually deny them.

Second, talk with your opposing counsel. Often. A case management conference or status conference is not the time they should be hearing your proposals or positions for the first time. Springing it on them in court does not reflect well on you and is not a good use of my time. When it comes to routine requests for extensions, say what the other side’s position is. Again, you should not be seeking an extension on the day of the deadline but reaching out to opposing counsel to get their input moves things forward. In my experience, counsel almost always extend professional courtesies unless there is a compelling reason not to do so. If they do not, that reflects poorly on them, and you will likely get the extension anyway. So, ask first.

End of the Case

The overwhelming majority of cases resolve without a trial, for better or worse. When they do, I am genuinely surprised at how much effort it sometimes takes my staff and me to corral parties to live up to the commitments they undertook. If you say that you will file a dismissal within 30 days, do it. From my time in practice, I understand that lawyers have moved on to the next matter, but I still have the case and it is not over until it is dismissed. Far too often, I find myself scheduling in-person hearings with counsel and their clients to ask why a case that settled 90 days or more in the past has not yet been dismissed. I have only had one such hearing actually go forward, but the fact that I have to schedule them relatively often shows the level of attention that cases still require once resolved. And that effort on the part of the courts hurts all litigants.

Civility

Each of these few issues I have touched on requires communication between opposing counsel. Obviously, lawyers disagree with each other, but they do have to find a way to work together all the same. Find a way to disagree without being disagreeable. Today, there might be precious few examples of how to do that. Be one of them.

I have spent a significant amount of time on the bench dealing with various sanctions issues and motions. Some I have raised on my own when I have had concerns about practice before me. Others arise from the parties. Some have merit; some do not. But each imposes a tremendous cost in time and attention from the court. For this reason, requests for sanctions should generally be rare and directed to the most egregious conduct that falls outside the bounds of professional norms. Based on what I have seen thus far on the bench, threats of sanctions have become fairly commonplace and routine. Sanctions are not.

Nearly everything on my desk is interesting and challenging in all the right ways. That is true whether the matter involves a multi-billion dollar securities fraud suit or a claim seeking restoration of a few vacation days. The amount in controversy or the stakes bear little relationship to the challenges each matter presents, whether those challenges come in the form of case management or a legal issue brought on a dispositive motion. With that in mind, perhaps the best advice I can give lawyers and litigants based on where I sit now is know your case and tell the court what you want and need, even, or especially if, it is somewhat out of the ordinary. Most judges work hard to make sure that litigants receive a fair day in court and would welcome such requests.

J. Philip Calabrese is a judge in the U.S. District Court, Northern District of Ohio, and a member of the Judge John M. Manos American Inn of Court, the William K. Thomas American Inn of Court, the Kathleen M. O’Malley American Inn of Court, and the Cleveland Employment American Inn of Court.