By Tim Lendino
Recently I asked a few Business Court law clerks the following question: What are some practice pointers that you would give to attorneys appearing before the Court? Although I clerked at the Business Court and should presumably have some insight into my own question, it’s been a while since I clerked so I thought it would be beneficial to get a fresh perspective. Below is my summary of five tips I received. Disclaimer: These are the views of certain anonymous individuals and should not be attributed to the Business Court.
1. Think twice before calling out your adversary about a minor rule violation
When opposing counsel fails to follow the Business Court rules, it may be appropriate to raise that rule violation with the Court. Counsel can sometimes be quick to call out the other side. But before crying foul, think carefully about the severity of the rule violation and whether it’s worthwhile to raise the issue. For example, if a response brief filing deadline is 5 p.m. and opposing counsel e-files their brief at 5:15 p.m., does it make sense to file a motion to strike that brief and ask the Court to disregard it from consideration based on a rule violation? Of course not. That would be an overreaction. When deciding whether to raise a rule violation, it may be helpful to weigh whether the violation actually prejudiced your client. If it’s a minor violation, consider letting it go. And if you decide to highlight a violation, avoid being hyperbolic or hyper-technical.
2. When drafting your motion, be specific about the relief you are requesting
Help the Court to rule in your favor by being specific about the relief sought in a motion. In doing so, consider what you want the conclusion of the Court order to say specifically and then provide that precise language in your motion/brief. This is perhaps most important in the context of motions for injunctive relief and discovery motions.
3. Follow the spirit of Rule 10.9 and exhaust your best efforts to resolve a discovery dispute before firing off an email to the Court
Business Court Rule 10.9 sets forth the (relatively) new procedure regarding the handling of discovery disputes. In short, after exhausting meet-and-confer efforts, the moving party emails a condensed explanation of the dispute and its position to the Court. The opposing party has a shortened period of time to respond. Generally, the Court then schedules a telephone conference with the parties and either rules on the dispute or directs further briefing.
The Rule 10.9 process can provide for expeditious judicial relief on discovery disputes. But given the ease of access to the Court, litigants can sometimes rush to the courthouse without putting in their best efforts to resolve the discovery dispute with opposing counsel. Simply exchanging a few emails with opposing counsel does not satisfy the meet-and-confer requirement. Practitioners should remember the spirit of Rule 10.9, which puts the onus on counsel to exhaust their best efforts to resolve disagreements before bringing them to the Court’s attention.
4. For anything you hand to the judge at a hearing, also be sure to give a courtesy copy to the law clerk
During hearings, counsel oftentimes provide the judge with hard copies of certain materials. For example, in a motion hearing, counsel may hand up copies of cases or PowerPoint presentation slides. Counsel sometimes forget, however, to bring an extra copy for the law clerk. Counsel should remember that the law clerks are also following along during hearings, so bring an extra courtesy copy of any materials you intend to present to the judge. The law clerks will appreciate that.
5. Avoid copying law clerks on emails between counsel
After a law clerk sends an email to all counsel in a case, counsel sometimes decide to respond directly to other counsel. In doing so, an attorney may hit “reply all,” unnecessarily including the law clerk on further communications intended to be between counsel. Generally speaking, if the communication is not directed to the Court, then the law clerk should not be copied on the email. For example, law clerks should not be copied on email disagreements between counsel. It is important to remember that when you are communicating with a law clerk, you are communicating with the Court. And everything shared with the law clerk will likely be shared with the judge.
I hope you find these tips as helpful as I did. And lastly, I wish everyone a happy new year.