Iowa Civ Pro Blog

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.

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's 6th Judicial District Adopts New Local Rules

Six of Iowa's eight judicial districts have local rules to which attorneys need to adhere. The two holdouts have been the 4th (which includes Pottawattamie County) and 6th judicial districts.

On July 27, the 6th judicial district (covering Benton, Iowa, Johnson, Jones, Linn, and Tama counties) joined the majority and adopted its first local rules. There are four of them.

Rule 1 states that unresisted motions must (a) contain the word "unresisted" in the caption; (b) specifically name the attorneys who do not resist; and (c) be accompanied by a proposed order.

Rule 2 states: "All Motions for Continuance, Motions to Withdraw, Motions to Extend Deadlines and Motions to Exceed Fee Guidelines shall be accompanied by a proposed Order."

Rules 1 and 2 turn a good practice -- proposed orders on certain types of motions -- into a mandatory practice.

Rule 3 states that the certificate of service in motions to withdraw as counsel must certify a service copy was sent to the client, unless the client's written consent to the withdrawal is attached to the motion.

Rule 4 mandates the form for orders allowing counsel to withdraw in civil cases in which the withdrawing attorney has not yet been replaced by another attorney who has filed an appearance. (Download the form Order to Withdraw.)

Here is an unsigned copy of Supervisory Order 2009-7 adopting the rules. Signed and file-stamped copies of the order may be obtained from the Linn County Clerk's office. The rules become effective August 26.