We lawyers and judges always should be seeking ways to improve the administration of justice. The efficient management and prompt disposition of motions, especially pre-trial motions in civil cases, is a very important part of the litigation process which has not received the attention and study it properly deserves. There is demonstrated need for improvement.
The Federal Judicial Center has now completed a study of motion practice in the federal district courts seeking to determine the best and most efficient method for handling motions. The study notes the wide disparity among courts in the speed with which they rule on motions. It is a commendable piece of reliable research. Although there is considerable variation in the motion practice followed in the 95 United States District Courts, two methods are generally employed, one through written submission only and the other through oral argument requiring the prior submission of briefs. The latter method usually results in immediate oral rulings. The purpose of this article is to urge the use of the oral argument procedure as the superior method for providing fair hearings and prompt rulings on motions. The Judicial Center research is supportive of the merits of this practice.
The results of the study have been published in pamphlet form as Judicial Controls and The Civil Litigative Process: Motions, Federal Judicial Center. February 1980 (hereafter cited as FJC Study). A copy of the publication can be obtained by writing The Federal Judicial Center, 1520 H Street, N.W., Washington, D. C. 20005.
It should be remembered that our courts are instrumentalities to facilitate "the just, speedy and inexpensive determination" of an action. There is some inherent conflict in the statement of these goals, and in case of a conflict, speed must yield to justice. The oral argument procedure minimizes the conflict between, and best serves, the dual aims of speed and justice. It is important to distinguish between delay caused by inaction of counsel and that attributable to the court. It is the latter, not the former, with which we are here concerned. Delay caused by attorneys is manageable, but undue delay occasioned by the courts must not be permitted. The latter is less forgivable because its correction is wholly outside the power of counsel and the litigants and fosters a perception of injustice.
Rule 1, Fed.R.Civ.P.
Speed and justice are often at loggerheads. Compare Kinsella v. Krueger, 351 U.S. 470, 485, 76 S.Ct. 886, 894, 100 L.Ed. 1342 (1956) (Frankfurter, J.) ("Reflection is a slow process. Wisdom, like good wine, requires maturing.") with Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," reprinted in 35 F.R.D. 273, 284 ("Uncertainty, delay and expense, and above all, the injustice of deciding cases upon points of practice, which are the mere etiquette of justice . . . have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible businessman").
See Rules 7(b)(2) and 11, Fed.R.Civ.P. Also I find it helpful for the magistrate to establish prompt and firm trial dates with any extensions requiring a court appearance. See Hon. William E. Steckler, Motions Prior to Trial, 29 F.R.D. 299, 310.
Cf. Canon 9, A.B.A. Code of Professional Responsibility.
Procedures for filing, responding to, and ruling on motions vary in their specifics across the country. While some courts have developed local rules to manage motions practice, others leave procedures largely to the discretion of each judge, including ad hoc determinations by each as to the need for oral argument. The Judicial Center study analyzed basic types of motion procedures that it studied in each of six district courts in which it collected a sample of some 3,000 terminated cases.
Under our local rules each judge establishes a specific day of the week as motion day and by standing order establishes the rules governing motion practice. Under my standing order the moving party must submit briefs two weeks prior to the motion day, the non-moving party must submit responsive briefs one week prior to motion day.
The districts studied were: Eastern Louisiana, Central California, Massachusetts, Maryland, Eastern Pennsylvania and Southern Florida.
A "motions day court" in the study refers to one that favors oral proceedings as reflected in local rules or practices by which designated days of the week are scheduled at which counsel who have filed motions and briefs are afforded oral argument. "Written submission courts" refer to those that do not have rules for scheduling motions on a regular motions day, but rely instead on written requests for motions followed by reply briefs, followed then by the judge's determination of whether there should be oral argument.
All courts studied had scheduling rules for filing opposition motions, though those courts with motions day rules more closely followed such guidelines.
The legal necessity for oral hearings on motions is less than clear. A minority of courts recognize such a right in Rule 56 motions, but not otherwise. The language of the rules is ambiguous. There are, however, meritorious reasons for providing hearings.
Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1973); Dredge Corp. v. Palmer, 338 F.2d 456 (9th Cir. 1964); Bowdidge v. Lehman, 252 F.2d 366 (6th Cir. 1958).
See, FCC v. WJR, The Goodwill Station, Inc., 337 U.S. 265, 272-85, 69 S.Ct. 1097, 1101-1108, 93 L.Ed. 1353 (1948); Morrow v. Topping, 437 F.2d 1155, 1156 (9th Cir. 1971) (local rule provision that motions be determined without oral argument held valid under Rule 78 and not a denial of due process.) See also Spark v. Catholic University of America, 510 F.2d 1277, 1280 (D.C. Cir. 1978); Parish v. Howard, 459 F.2d 616 (8th Cir. 1972) (no absolute right to hearings on Rule 56 motions); Addington v. Mid-American Lines, 77 F.R.D. 750, 752 n. 1 (W.D.Mo. 1978) (hearing requirement of Rule 37 is satisfied by affidavits). But see, Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977) (fundamental fairness requires that a hearing be held before extreme sanction of default is imposed); Flaks v. Koegel, 504 F.2d 702, 712 (2d Cir. 1974); American Finance System Inc. v. Harlow, 65 F.R.D. 94, 112 (D.Md. 1974) (party usually entitled to a hearing before Rule 37(a)4 sanctions are assessed.
See, rule 12(d): ". . . the motion . . . shall be heard . . ."; rule 37(a): ". . . after opportunity for hearing . . . "; rule 56(c); "The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits . . . But see Rules 24(c), 26(c), 30(d), 35(a), 37(a)(2), 37(b)(c) and 41(b), which make no mention of hearings.
The Judicial Center study found that courts in which oral motions are provided are much more efficient. The difference in ruling time revealed in the Center's statistics is really quite startling — from about twenty-seven days in a court using motions day and favoring oral rulings, to over ninety days in a court using ad hoc scheduling and written opinions. These figures are for a single motion. When a number of motions are made in the same case it is apparent that very substantial delays in ruling on the motions and in eventual termination of the case will result.
Oral motion practice is more efficient for other reasons. Importantly, it avoids an unnecessary administrative task. Written submission courts provide oral argument on an ad hoc basis. Doing so, however, requires an additional review of the file to determine whether the case merits oral argument. Thus courts that rely upon written submissions tend to impose upon themselves a greater administrative burden than do those that rely on the self-enforcing mechanism of a regular motions day for filing motions, scheduling reply briefs and oral arguments. My experience has shown that apparently complex cases often can be resolved on relatively simple points of law, that what appears to be simple may often turn out to be quite complex and that the true complexity of a motion is generally not apparent until a thorough review of the law. Thus a decision on whether or not to grant oral argument based upon a cursory review of the file will as often as not turn out to be no more than a guess.
The oral motions practice procedure also insures expedition because it provides an automatic cutoff date for filing briefs. The oral hearing date provides a definite time after which further papers may not be submitted. Though most courts undoubtedly have local rules or standing orders specifying times for filing motion papers, the Judicial Center study found that written submissions courts tend to overlook whatever time limits their local rules may set and that courts with policies of written submissions and substantial drafting tend to experience delays in the receipt of opposition briefs which, on the average, were submitted two to three weeks after the established deadline.
That courts adopting oral motions procedures are less lenient with respect to delays is, I believe, explained by two factors. First, since the major purpose of the oral hearing is to provide the court an opportunity to discuss the issues involved, and those issues best can be focused only after they have been briefed by both parties, the court is less likely to grant continuances for submission of briefs. Secondly, the oral motion practice has a built-in self-enforcing mechanism. Motion practice in my court is governed by a standing order which requires the moving party to submit its papers two weeks prior to the oral hearing date. The non-moving party must submit the papers one week before that date. Sanctions are available for failure to comply with the orders. The hearing is scheduled by the moving party through the calendar clerk. Once scheduled, the non-moving party is forced to comply with the terms of the order or face the unenviable burden of explaining to the court, in person, why its failure to comply was not dilatory and why sanctions should not be imposed. Thus, the oral hearing fosters compliance because it is obviously more difficult to explain delay in open court on the record and before one's peers than it is to submit a written explanation.
If the non-moving party is attempting to delay the moving party will undoubtedly move for sanctions.
Not only does the oral motion procedure shorten delay commonly occurring prior to the time an issue is considered on its merits, but that procedure also reduces the delays occurring between the time an issue is considered on its merits and the time the ruling is made. The Judicial Center study found that those courts using the oral motion procedure also tended to issue more rulings from the bench. In my experience oral motion practice encourages rulings from the bench because it affords opportunity for colloquy between court and counsel leading to simplification and quicker resolution of the issues. Indeed, I have found in summary judgment motions, for instance, that when asked, the party bringing the motion well may admit that there are disputed questions of facts on at least some of the theories of relief.
Moreover, the Judicial Center report speculates that judges with heavy drafting burdens may attend to their drafting work on a "first come-first served" basis which may delay attention to other motions, especially those that do not, in any meaningful sense, require a written opinion. Finally, to the extent that oral motion practice encourages rulings from the bench, it gives the court more time to write opinions on those issues which warrant written opinions.
FJC Study at 39 n. 53.
Some commentators urge the use of oral findings and rulings at all stages of a civil proceeding, including post trial motions. See, Hanson, Findings of Fact and Conclusions of Law: An Outmoded Relic of the Stage Coach Days, 32 A.B.A.J. 52 (1946); Christensen, A Modest Proposal for Immeasurable Improvement, 64 A.B. A.J. 693 (1978).
It has been suggested that the oral hearing, in most cases, is little more than a rehash of the written argument and in those cases there there are significant issues presented, the judge is unable to pose meaningful questions. But, if the motions procedure requires the submission of all briefs at some reasonable time prior to the hearing date, the court has adequate time to prepare itself on the issues. The court is then in a position to focus the argument on the controlling facts and law and, most of the time, to rule from the bench.
See Steckler, Motions Prior to Trial, 29 F.R.D. 299, 301-03 (1962).
The oral motions procedure also gives the court an opportunity to take a more active role in moving a case along. In an oral motions proceeding, the court is in a better position to invite a summary judgment or other appropriate motion at an earlier stage in the proceedings. The oral motions procedure also permits the court to more closely monitor the case. I find it helpful to make periodic inquiries as to the status of the case, how the parties are getting along and whether settlement has been discussed. It has been my experience that in many cases settlement is not discussed until, very late in the proceedings, either because counsel are caught in the fervor of litigation or because inexperienced counsel do not know how to approach the other side without appearing to give ground. A prompting from the court at the motions hearing may bring the parties together for settlement discussion without giving one party a tactical advantage.
An additional plus for the oral argument should not be overlooked. It affords counsel the opportunity to have "his say" about the issue which prompted the motion. To stand before the court, many times with his client in attendance, and tell the judge what the issue is and how it should be decided gives counsel a feeling of great satisfaction that he has had his day in court regardless of the outcome. Counsel just doesn't get that same satisfaction from simply filing a written brief. Allocution is a vital part of an advocate's presentation.
Just as the manner of managing motion practice affects ruling time, so does the manner of ruling on the motion. The Judicial Center study found that substantial reliance on written opinions following submission on briefs appreciably stretches the time from filing to disposition of a motion. Drafting opinions obviously takes more time than ruling from the bench, regardless of when or how argument is scheduled. The research showed that rulings on motions with a written opinion took from one to five months. Most motions, submitted through oral argument following previous submission of briefs, can properly, and more advantageously, be ruled upon from the bench.
An opinion was defined as a written order exceeding two pages in length.
Moreover, delays occasioned by written opinions might well cause additional delays in all rulings including those relatively simple rulings which do not, in any meaningful sense, require written opinions. As noted previously, the Judicial Center study speculates that judges with heavy drafting burdens may attend to their drafting work on a "first come-first served" basis. The effect of what procedure is to delay considerably the overall average ruling time.
FJC Study at 39.
The Study noted that, Assuming that the flow of motions into a judge's inventory is relatively steady over time and the incidence of motions needing drafting is random, the effects of "first come-first served" on deliberation time can be illustrated as follows. If the "first" motion takes enough judge time to translate into a deliberation time of fifty days and the "second" motion enough to translate into only one day of deliberation time, and assuming the second motion is filed on the day following the first motion, deliberations will consume fifty days for each motion if "first come-first served" is used. On the other hand, giving the second motion a priority because it will consume less deliberation time would result in fifty-one days of deliberation time for the first motion but only one day for the second. Thus, deliberation time for the two motions would average fifty days for "first come-first served" and only twenty-six days for the second method of prioritization. Id. at n. 53.
I have long followed the practice of scheduling all motions for oral argument following previous filing of written briefs and, in most cases, am able to rule from the bench. I have found the practice fair and expeditious and it has met with general approval from the bar. Now comes the results of research from the Federal Judicial Center which supports the practice over alternative methods of motion practice as more expeditious, less burdensome administratively, and fully responsive to the injunction that the courts afford "just, speedy and inexpensive" determination of issues.
I urge the general use of oral motion practice as a meritorious contribution to our constant search for ways to expedite and improve the administration of justice.