As published in The Chicago Daily Law Bulletin
One of the plum assignments in the vast Cook County Judiciary is Law/Motions.
First, the supervising judge, Kathy Flanagan, is absolutely wonderful. She welcomed me with open arms and a stack of helpful books and advice. I ran my own call exactly as I wanted and she was always available to get right off the bench to help me with a sticky problem. Her counsel was golden.
Second, you get to work with some of the very best attorneys around and have the chance to help them with their case problems.
One of the plum assignments in the vast Cook County Judiciary is Law/Motions.
First, the supervising judge, Kathy Flanagan, is absolutely wonderful. She welcomed me with open arms and a stack of helpful books and advice. I ran my own call exactly as I wanted and she was always available to get right off the bench to help me with a sticky problem. Her counsel was golden.
Second, you get to work with some of the very best attorneys around and have the chance to help them with their case problems.
I loved writing opinions on all contested motions and there was plenty to think about. Even practice areas I thought I knew well always had twists. There’s something to learn every day.
Candidly, routine case management was not my favorite part of the call. Since then, the system has been improved so that cases get assigned trial dates early on and the lawyers understand the need to finish their discovery and motions timely. That makes a huge difference and I was very glad to see that change.
I once heard a lawyer say that the CMC’s are all on the 22nd floor because each case gets just twenty seconds. When the call was really heavy, the average might have been even less.
Ours is a unique system of bifurcating cases. Law/Motions includes everything before trial. Trial judges just hear the trials. Very few venues do that. Usually, the trial judge hears the entire case from the start.
This system has advantages and disadvantages.
The advantages are that the motion judges really become experts in all areas of pre-trial matters. They know service, pleadings, jurisdiction, forum non conveniens, discovery, privileges, motions to dismiss and all the many other issues that come up before trial.
The trial judges become experts in evidence, voir dire, trial procedure and all the many issues that come up in a trial.
The fact that the trial judges do not usually see the file before the day of trial also has advantages and disadvantages.
The advantage is that they didn’t fight through the discovery motions. They didn’t hear about the egregious behavior in the deposition. They don’t know how plaintiff just squeaked by the motion for summary judgment. The lawyers and parties start the trial with a clean slate.
The disadvantages are that the trial judge has just a short time to learn the file before having to begin voir dire, there is not a lot of time for preliminary motions or for the ruling on those motions to sink in to the decision makers, and scheduling is rough because no one really knows when the trial is actually going to start. Availability of trial judges, substitutions of judges, motions, and every judge’s individual practice mean that a trial could start the day it’s set or weeks later. That makes witness scheduling tough.
It’s commonly thought that mediation is supposed to be “one and done.” Experienced practitioners know that’s often not the case. It’s not uncommon there is at least one piece missing before a deal can be inked. Often it can be resolved later by the parties themselves, but occasionally a mediation takes a second
session.
Mediation is a process which starts the moment a case is filed and continues until the check is cashed. To paraphrase Clausewitz, trial is just a means of negotiation. I suggest implementing custom case management, and using early mediation to set the case on a path to settlement.If lawyers could accept that 99% of the cases settle without trial they might think more about preparing their cases for settlement instead of preparing them for trial.
For example, depositions. We do lots of them.
Illinois is the only state that has discovery depositions. Every other state and the entire federal system have just one deposition which can be used at trial. That means our pre-trial process can double the number of depositions needed. You go out to California to depose a witness and then go back for her evidence deposition.
First let’s consider what percentage of depositions are actually used at trial.
Of all the depositions taken in all the cases, are even ten per cent actually used?
Let’s pretend it’s fifty per cent. Fifty per cent of all depositions are used at trial, which is ridiculously high.
So if one per cent of the cases go to trial and even fifty per cent of all depositions are used at trial, the chance you’ll ever actually use a deposition is less than one half of one per cent. And it’s really way less than that since almost no one ever uses half of their depositions at trials.
So your deposition is really to help you evaluate settlement.
Imagine if you could line up your depositions and take them, not in any random order, but in a way specifically calculated to lead to settlement.
For example, if liability is not a likely issue at settlement, and if value comes down to what a treater and an expert are going to say, what if you could start right there?
If the key fact is an observation or an opinion of one particular witness, what if you could start right there?
Under our system of pattern case management, motion judges simply don’t have time to sit down with all of the lawyers on each case and make a custom settlement plan. It’s F(1), F(2), F(3) on virtually every case.
That means that enormous amounts of time and effort end up on work that will never be used at trial and will never have anything to do with settling the case.
As a side note, depositions become even less important with cameras everywhere and GPS and computer technology making real person witnesses less important.
So what’s the answer? How do you get to settlement quicker with less wasted time and energy?
One option is early mediation for the purpose of making a settlement plan.
In early mediation, the parties can decide what discovery is needed and what order to do it in. They can agree on process, for example, how long for the depositions. They can mediate discovery disputes. They can even agree to get binding decisions on motions.
Anything that can be done in a CMC can be done in a mediation. The parties just have to agree.
The advantage of custom case management might seem obvious to plaintiff counsel on a contingent fee, but what about hourly attorneys who do not want to see their billing shrink?
Attorneys on an hourly fee can show a competitive advantage since, first, they can show they can get cases closed faster and with fewer hours, and second, can show they can get just as good results because they are getting to the same case issues that are going to determine value years down the road.
Custom case management, starting early, is something lawyers should consider in many cases.
Candidly, routine case management was not my favorite part of the call. Since then, the system has been improved so that cases get assigned trial dates early on and the lawyers understand the need to finish their discovery and motions timely. That makes a huge difference and I was very glad to see that change.
I once heard a lawyer say that the CMC’s are all on the 22nd floor because each case gets just twenty seconds. When the call was really heavy, the average might have been even less.
Ours is a unique system of bifurcating cases. Law/Motions includes everything before trial. Trial judges just hear the trials. Very few venues do that. Usually, the trial judge hears the entire case from the start.
This system has advantages and disadvantages.
The advantages are that the motion judges really become experts in all areas of pre-trial matters. They know service, pleadings, jurisdiction, forum non conveniens, discovery, privileges, motions to dismiss and all the many other issues that come up before trial.
The trial judges become experts in evidence, voir dire, trial procedure and all the many issues that come up in a trial.
The fact that the trial judges do not usually see the file before the day of trial also has advantages and disadvantages.
The advantage is that they didn’t fight through the discovery motions. They didn’t hear about the egregious behavior in the deposition. They don’t know how plaintiff just squeaked by the motion for summary judgment. The lawyers and parties start the trial with a clean slate.
The disadvantages are that the trial judge has just a short time to learn the file before having to begin voir dire, there is not a lot of time for preliminary motions or for the ruling on those motions to sink in to the decision makers, and scheduling is rough because no one really knows when the trial is actually going to start. Availability of trial judges, substitutions of judges, motions, and every judge’s individual practice mean that a trial could start the day it’s set or weeks later. That makes witness scheduling tough.
It’s commonly thought that mediation is supposed to be “one and done.” Experienced practitioners know that’s often not the case. It’s not uncommon there is at least one piece missing before a deal can be inked. Often it can be resolved later by the parties themselves, but occasionally a mediation takes a second
session.
Mediation is a process which starts the moment a case is filed and continues until the check is cashed. To paraphrase Clausewitz, trial is just a means of negotiation. I suggest implementing custom case management, and using early mediation to set the case on a path to settlement.If lawyers could accept that 99% of the cases settle without trial they might think more about preparing their cases for settlement instead of preparing them for trial.
For example, depositions. We do lots of them.
Illinois is the only state that has discovery depositions. Every other state and the entire federal system have just one deposition which can be used at trial. That means our pre-trial process can double the number of depositions needed. You go out to California to depose a witness and then go back for her evidence deposition.
First let’s consider what percentage of depositions are actually used at trial.
Of all the depositions taken in all the cases, are even ten per cent actually used?
Let’s pretend it’s fifty per cent. Fifty per cent of all depositions are used at trial, which is ridiculously high.
So if one per cent of the cases go to trial and even fifty per cent of all depositions are used at trial, the chance you’ll ever actually use a deposition is less than one half of one per cent. And it’s really way less than that since almost no one ever uses half of their depositions at trials.
So your deposition is really to help you evaluate settlement.
Imagine if you could line up your depositions and take them, not in any random order, but in a way specifically calculated to lead to settlement.
For example, if liability is not a likely issue at settlement, and if value comes down to what a treater and an expert are going to say, what if you could start right there?
If the key fact is an observation or an opinion of one particular witness, what if you could start right there?
Under our system of pattern case management, motion judges simply don’t have time to sit down with all of the lawyers on each case and make a custom settlement plan. It’s F(1), F(2), F(3) on virtually every case.
That means that enormous amounts of time and effort end up on work that will never be used at trial and will never have anything to do with settling the case.
As a side note, depositions become even less important with cameras everywhere and GPS and computer technology making real person witnesses less important.
So what’s the answer? How do you get to settlement quicker with less wasted time and energy?
One option is early mediation for the purpose of making a settlement plan.
In early mediation, the parties can decide what discovery is needed and what order to do it in. They can agree on process, for example, how long for the depositions. They can mediate discovery disputes. They can even agree to get binding decisions on motions.
Anything that can be done in a CMC can be done in a mediation. The parties just have to agree.
The advantage of custom case management might seem obvious to plaintiff counsel on a contingent fee, but what about hourly attorneys who do not want to see their billing shrink?
Attorneys on an hourly fee can show a competitive advantage since, first, they can show they can get cases closed faster and with fewer hours, and second, can show they can get just as good results because they are getting to the same case issues that are going to determine value years down the road.
Custom case management, starting early, is something lawyers should consider in many cases.