Iowa Civ Pro Blog

A good quote on why rules are more than mere technicalities

When having a dispute over a matter of procedure, it is occasionally helpful to quote an authority on the importance of procedure. That is, procedure is more than a mere technicality. Iowa Supreme Court Justice G. King Thompson gave us a good one in 1961:

The so-called technicalities of the law are not always what they seem. When they establish an orderly process of procedure, they serve a definite purpose and are more than technical; they have substance, in that they lay down definite rules which are essential in court proceedings so that those involved may know what may and may not be done, and confusion, even chaos, may be avoided. They are necessary; without them litigants would be adrift without rudder or compass. We have, and should have, no compunction in following them when they are clear and definite.

Esterdahl v. Wilson, 110 N.W.2d 241, 246 (1961)

Please do not bother the civil case scheduler anymore

Because of Iowa judicial branch budget cutbacks, resulting in fewer court reporters and available judges to handle the trial of cases, many civil cases get "bumped" in favor of higher priority criminal and custody cases. Unfortunately, the bumping of civil cases usually occurs on the eve of trial. In the Sixth Judicial District, including Linn County, where the problem appears to be greater than perhaps anywhere in the state, that means learning the Friday before the trial is set to commence on Monday that it will need to be rescheduled. The continued trial often occurs a year or more later, unless the parties are willing to hire a court reporter for the trial and have it heard before a judge on senior status.

Even where cases are not bumped, the attorneys and their clients spend the week before trial wondering if it will get bumped. The high likelihood of a case getting bumped clearly affects preparation, even when it should not. The result is that attorneys routinely contact the court administrator's office throughout the week preceding trial to check on the status of the court's docket.

Effective immediately, the court administrator's office in the Sixth Judicial District is putting an end to the practice of attorneys calling to check to see if their case is really going to be tried. The office has issued a new scheduling protocol for civil cases adopted by the district court judges in the district. Included in the protocol is this statement: "Case schedulers are prohibited from providing attorneys with projections about the likelihood of their cases being reached for trial on the scheduled date. Attorneys should presume their cases will be tried on the scheduled date and should refrain from soliciting information from court schedulers about their prospects for trial."

Bumping decisions will be made by the administrative judge, except in Johnson County where they will be made by the presiding judge. Unfortunately, those decisions will still be made "the day before a trial is scheduled to begin." And it is probably not a good idea to contact the administrative judge to check on the status.

The protocol also provides that "case schedulers will continue to stack civil cases but the stacking will be limited to what is determined to be an optimal level to enhance trial date certainty and avoid excessive over-scheduling which leads to greater rescheduling of cases." That may mean that cases will initially be scheduled out further than they have been.

Changes to Federal Expert Rules Alter Venue Choice Analysis

In cases where both Iowa and federal courts have jurisdiction, amendments to Federal Rule of Civil Procedure 26 effective December 1, 2010 will have an impact on the initial choice of where to file and on the removal analysis if the plaintiff files in state court.

The amendments affect expert witness discovery. Previously, in both Iowa and federal courts, there was no work product protection for attorney-expert communications and reports were almost never required for experts who had not been retained for purposes of the litigation.

That remains the case in Iowa courts, but the amendments to the federal rules made these changes in federal courts:

First, new Rule 26(a)(2)(C) requires that the expert witness disclosure include, for witnesses from whom the rules do not require a written report, the subject matter on which the witness is expected to testify and "a summary of the facts and opinions to which the witness is expected to testify." In other words, the attorney effectively needs to prepare a summary report for the expert.

It is difficult to see what stating the expert's expected "subject matter" adds to the requirement of stating the expert's expected facts and opinions, but the rule requires both.

In Iowa, the standard trial scheduling order -- and Iowa Code section 668.11 for licensed professionals -- does require a statement of the non-retained expert's expected subject matters, but the new federal requirement of expected facts and opinions clearly adds additional substance to the disclosure in federal court. The Advisory Committee warns that "Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have." Nevertheless, in federal court, attorneys will now need to be diligent about obtaining sufficient information from the non-retained expert witnesses in order to meet the disclosure requirements. In contrast, in Iowa, attorneys can continue to punt on the question of the non-retained expert's opinions by telling opposing counsel that no report is required and, if opposing counsel wants the expert's opinions, he will have to interview or depose them.

Second, for retained experts, the federal rules no longer require the disclosure of "other information" the expert considered (leaving just "facts and data"), draft reports, and expert-counsel communications (with exceptions for compensation information and attorney-provided facts, data, and assumptions). The protection of draft reports and many expert-counsel communications is a significant change that will eliminate many expert witness deposition questions in federal court (e.g., no more "what did you and attorney talk about during the break?"). The Advisory Committee explained the reason for the change as follows:

The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen. Attorneys may employ two sets of experts--one for purposes of consultation and another to testify at trial--because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses. At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work.

It would not be surprising to see Iowa and many other states eventually adopt these changes as well. In the meantime, the differences in the expert discovery rules may impact the decision on whether to proceed in federal or state court in situations where both courts have jurisdiction.

Iowa District Court Has Discretion to Deny Voluntary Dismissals Within Ten Days of Trial

The case is going bad. Discovery responses have not been completed or supplemented, risking the exclusion of evidence at trial. What is a plaintiff to do? If the claims are within the statute of limitations, dismiss them and re-file, restarting all of the deadlines. Except, don't wait until it's too late, as the Iowa Supreme Court explained today in Lawson v. Kurtzhals.

There, the plaintiff's counsel sought to dismiss the case three days into the jury trial. The district court determined that the plaintiff had an unfettered right to do so and allowed the dismissal. The plaintiff immediately refiled an identical case.

The Iowa Supreme Court has now stopped the maneuver, reinstating the first case, with the same exclusion of evidence rulings that had been in place as a result of the plaintiff's failure to provide sufficient discovery responses.

The relevant rule is 1.943, which allows dismissals "without order of court ... at any time up until ten days before the trial is scheduled to begin." After that, dismissals are allowed "only by consent of the court which may impose such terms or conditions as it deems proper."

The Supreme Court acknowledged that the second sentence was "less clear." The legislative history did make clear, though, that Iowa was seeking a balance between the harsher federal rule -- which usually requires stipulations of dismissal -- and an unlimited right to dismiss at any time. Thus, the ten day provision. The Iowa Supreme Court concluded that "anytime after ten days before the trial is scheduled to begin the ability to seek a voluntary dismissal without prejudice is not absolute. It is within the discretion of the trial court."

In Lawson, had the district court exercised its discretion, it would have been an abuse of discretion to allow the dismissal, given how far it had progressed into trial.

As a result, if you are a plaintiff and you want to restart the process, do so at least ten days before trial.

What Civil Court Judges Want You to Know

I attended an NBI seminar titled “What Civil Court Judges Want You to Know” on October 23. A panel of six Iowa District Court judges presented on motion practice, judicial preferences, and good trial practice, among other topics. Here are some of the things I took away from the panel’s comments:

-- Attorneys need to be better at finding ways to reduce the paper that ends up in the court file. For example, exhibits to motions should include the relevant parts, not the entire document. The more unnecessary paper in the file, the more difficulty attorneys will have directing judges to what is important.

-- Oral arguments on motions, while often redundant of the written arguments, are nevertheless helpful in at least two respects: (1) addressing the judge’s questions; and (2) the reduction of paper (see above) by avoiding endless reply briefs (e.g., briefs captioned “Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Resistance to Defendant’s Motion”).

-- The discovery rules are so liberal that motions to compel discovery almost always result from a failure on the part of one of the attorneys. They should be unnecessary.

-- During jury trials, attorneys should not argue objections. State the objection. If the judge wants argument on the objection, the judge will call the attorneys to the bench to discuss the matter outside the ears of the jury.

-- Relevance objections will often be overruled simply because the judge does not have the necessary case background information possessed by the attorneys to be able to determine, at the point of the question, whether the evidence is relevant.

-- However, sometimes judges wish they would hear relevance objections during bench trials. Or, “objection: waste of time.” (Wink, wink.)

-- During cross-examinations, lawyers should avoid going back over the direct testimony. Lawyers who do so—usually for background purposes—are reiterating the damaging portion of the witness’s testimony.

-- It is fine to lead witnesses on foundation questions. Lawyers should do so to save time and to keep the flow of the trial going.

-- It is dangerous to not depose the other side’s expert witnesses. Attorneys should explore the “mortar between the bricks” of their opinions or otherwise consider themselves on inquiry notice of their full opinions. The judges will generally allow expert witnesses to go beyond the exact text of their written opinions as long as their testimony is consistent with the scope of those written opinions.

Iowa Supreme Court Increases Time to File Post-Trial Motions

Iowa lawyers practicing in state courts will have, as of this coming Monday, August 9, fifteen days to file post-trial motions for judgment notwithstanding the verdict and for new trial. The current rules allow ten days.

The court called this amendment an “on-going consequence of the severe cuts in the judicial branch budget over the past decade.” The clerks of court are apparently experiencing delays in processing district court orders, which has made the current “ten days after filing” too little time because of delays in making attorneys aware of a filing.

The affected rules are 1.1003, 1.1004, 1.1007, and 1.1008.

When to Make Your Motion for Directed Verdict

When should you make your motion for a directed verdict, that necessary precursor of a motion for judgment notwithstanding the verdict?

Many defense attorneys make such motions at the close of the plaintiff's case. However, because courts rarely grant directed verdict motions and often--if made before the defendant's case--take them under advisement for later determination, the parties and the court often agree to reserve such motions until just prior to issuing the jury instructions. Waiting until the end of the presentation of the evidence prevents interruption of the already scrambled flow of testimony.

Logically, making the motion at the close of the plaintiff's case makes sense. It is the "So what?" moment: the plaintiff has made his case and the defendant's attorney stands up and says, "Even if what the plaintiff has presented is found to be true, the plaintiff is not entitled to judgment."

For practical and logistical reasons, though, waiting until all of the evidence has been presented often makes more sense. The rules completely allow this, as reiterated by the Iowa Supreme Court today in Royal Indemnity Co. v. Factory Mut. Ins. Co., No. 07-1324.

Rule 1.945, without using the phrase "directed verdict," is the rule that governs motions for directed verdict. (In a trial to the bench, lacking a jury to whom to direct a verdict, the motion is called a motion for involuntary dismissal, consistent with the heading of the rule.) Rule 1.945 allows the motion to be made simply at some point "after a party has rested."

Furthermore, Rule 1.1003(2), discussing judgments notwithstanding the verdict, is expressly premised on entitlement to a directed verdict "at the close of all the evidence," not only at the close of the plaintiff's evidence.

The Iowa Supreme Court stated today that it "continue[s] to believe [waiting until the end] to be the best course of action." That is because "[e]ven the weakest cases may gain strength during the defendant’s presentation of the case" (which would suggest, to put it mildly, an unfortunate defense of the case).

Thus, not only did the Court state that parties may wait until the close of all of the evidence to make a directed verdict motion, it sent a message to trial courts that it would be prudent to wait to hear Rule 1.945 motions until the close of all of the evidence.

Attorneys' Fees Sanction Possible for Violation of Protective Order

The Iowa Supreme Court issued an opinion today recognizing the district court's authority to order attorneys' fees as a sanction for a person's violation of a protective order. The Court held that such sanctions are authorized by Rules 1.517(2)(b)(4)-(5) and 1.602(5). Rule 1.517 relates to discovery orders and Rule 1.602 relates to pretrial orders.

There are at least a few interesting procedural aspects of today's opinion:

First, the underlying litigation had been settled and dismissed. The Court ruled the district court still had authority to enforce its prior orders in the litigation.

Second, the Court held that "[a] protective order is an 'order to provide or permit discovery' under rule 1.517(2)(b), which is a principle not immediately clear from the language of the rule.

Third, the sanctioned individual (the husband of the plaintiff) was not a party to the underlying litigation, but was a party to the protective order.

The opinion is Reis v. Iowa Dist. Ct. for Polk County, No. 08-1087 (Iowa May 7, 2010).

Defendants Can Show Prejudice of Substitution of Real Party in Interest. But What Prejudice?

The Iowa Supreme Court provided a reminder today that substitution of the real party in interest is not automatic. In Frontier Leasing Corp. v. Treynor Recreation Area, the trial court denied the plaintiff's collection action because the plaintiff could not establish the chain of assignments making it the proper plaintiff. The court of appeals affirmed, but in so doing stated: "On remand, the district court shall allow a reasonable period of time for substitution of the real party in interest. Iowa R. Civ. P. 1.201."

Rule 1.201 provides that an action cannot be dismissed "on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection" for joinder or substitution.

The Iowa Supreme Court issued a per curiam opinion today clarifying that the defendant "should have an opportunity to show prejudice by any substitution."

What could such prejudice be? Apparently, adverse impact on the policy considerations of the statute of limitations.

The Court's opinion today cited its opinion in the 2000 case of Estate of Kuhns v. Marco, 620 N.W.2d 488, 495 (Iowa 2000), which stated "prejudice would not normally occur in such situations," at least when there is no accompanying change in the claims against the defendant.

In other words, the defendant has won this battle, but--as with many real party in interest objections--it might not mean much in the end.

Stylistic Guidelines from the Bankruptcy Judge of the District of Minnesota

If a court prefers or requires that counsel furnish a proposed order, it is important to know the stylistic guidelines the court prefers. Judge Robert Kressel, the bankruptcy judge for the District of Minnesota, has created a set of order preparation guidelines. Some of the guidelines are instructive for the drafting of other documents as well.

Some highlights include:

- To create a pdf, do not scan in the document; instead create it directly from Word or WordPerfect.

My comment: Doing this creates a much cleaner pdf, one that is capable of being searched and copied. Of course, some documents -- ones in which an original electronic version is not available -- will still need to be scanned.

- "Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names."

- "Eliminate superfluous words" (i.e., avoid legalese). Judge Kressel's example: Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”

My comment: When I proofread, I now specifically look for words I can delete and find ways to shorten my sentences.

- Keep plurals and possessives straight and consistent. Know when to use debtors (plural), debtor’s (singular possessive), and debtors’ (plural possessive). Make sure the verb matches the subject of the sentence.

- Use the possessive noun “its” and the contraction “it’s” correctly.