A View From the Bench: New Challenges in Federal Practice

Brian Dominguez, an Associate from CSK’s Miami office, sat down recently with one of our firm’s distinguished Partners, Thomas Scott, to talk about the practical challenges of litigating in federal court.
His perspective is unique. Mr. Scott was appointed and formerly served as a United States Florida State Circuit Court Judge and District Court Judge for the Southern District of Florida from 1985 to 1990. After leaving the bench, Mr. Scott earned the honor of serving as United States Attorney, again for the Southern District, from 1997-2000.

His years of experience and profound passion for jurisprudence serve as an asset to our firm and particularly to our younger lawyers as part of CSK’s commitment to quality training and mentorship. Mr. Scott and Mr. Dominguez focused their discussion on the upcoming challenges our clients will face in federal proceedings and how these challenges will affect the way that claims should be handled.

Brian: Good morning, Judge Scott. Thanks for taking time to meet today.

Tom: Always a pleasure, Brian.

Brian: Let me begin with a simple question. What advice do you have for claims handlers who are adjusting matters in federal litigation?

Tom: First and foremost, the most important advice I would give claims handlers is to obtain a lawyer that has experience litigating cases in federal court. Second, I think claims handlers should be aware that cases tend to move much more quickly in federal court than they do at the state level. Finally, claims handlers should be aware that matters in federal court will typically require more time spent by the attorneys handling the case in researching and drafting legal memoranda, as many of the motions filed in federal court will require memoranda of law.

Brian: And what would you say is the most common pitfall for claims handlers who are overseeing matters in federal court?

Tom: I think you raise a very important question. The most common pitfall I see is the assumption that the case will move along in the same manner as a case in state court. Typically, cases in federal court will move along much more quickly. The assumption that a case filed in federal court will proceed at the same pace as a case filed in state court can lead to a claims handler and the attorney retained to defend the case getting into trouble by making a crucial mistake early in the case. These mistakes are usually compounded by the fact that extensions of time are typically more difficult to obtain in federal court.

Brian: I’m sure clients sometimes have misconceptions about the risks and benefits of federal proceedings. Tell me, what do you think is the biggest misconception about matters pending in federal court versus matters pending in Florida state court?

Tom: Well Brian, I think the biggest misconception is that cases in federal court will last longer than cases filed in state court. Although cases filed in federal court can potentially move along slowly to start, once a scheduling order is entered by the judge, the cases will typically move along very quickly, with fast approaching deadlines. These fast approaching deadlines will usually lead to a case being completed in 12 to16 months.

Brian: I’m sure there are advantages and disadvantages as well.

Tom: Of course. The biggest advantage is that generally the case will be handled by a judge with more time and resources to devote to the case. This is usually a result of the lighter case load for most federal judges compared to state court judges. In addition, federal judges typically have two law clerks that can help the judge apportion more time to a given case or issue. This situation usually leads to more thorough consideration being given to major case decisions. Finally, the same is usually true of appellate review in federal court.

Brian: And how about some of the disadvantages?

Tom: The key disadvantage is typically the speed with which the case will move forward. Again, once a scheduling order is entered, both the claims handler and the attorney will need to be ready and available to spend a considerable amount of time on the case. It has been my experience that if time and consideration is not given early on to the needs of a particular case, the involved parties may need to work to slow down the federal court’s fast moving schedule. This is typically easier early on in a case. It is much more difficult to have a federal judge make changes to a schedule once a significant amount of time and energy has been spent on a given case and a major deadline is fast approaching.

Brian: Let’s talk for a moment about new challenges. What new discovery challenges will carriers face in federal cases in 2014?

Tom: Great question, Brian. As you know, on December 1, 2013 amendments to Federal Rule of Civil Procedure 45 took effect. These changes were designed to clarify and simplify the rules with respect to the issuance and compliance with subpoenas. Notably, subpoenas may now be served nationwide. Previously, courts were limited to a particular geographic area in serving and enforcing subpoenas. In addition, the amendments also require and clarify that prior notice, along with a copy of the subpoena, must be served prior to issuance of the subpoena.

Also relevant, although not yet in effect, several changes have been proposed to the Federal Rules of Civil Procedure. Specifically, changes have been proposed to Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, and 84. These proposed changes claim to modernize and streamline the federal rules in order to expedite litigation. As part of these changes, the proposed rules expedite the early stages of federal litigation, create more cooperation, and lead to more efficient discovery. For example, some of the proposed changes involve a reduction in time to serve complaints, a reduction in time for judges to issue scheduling orders, presumed limits on the number of depositions and discovery requests, and changes to Rule 37 on the availability of sanctions for the failure to preserve electronically stored information.

Brian: And what impact will these new challenges have?

Tom: The biggest impact that the amendments will have is that they will simplify the process for issuing subpoenas. Relevantly, however, carriers should pay special attention to the additional proposed changes to the Federal Rules of Civil Procedure, as many of these changes will have a drastic impact on discovery in federal court and the speed with which cases move through the system.

Brian: What advice would you give to carriers in choosing counsel to handle matters in federal court?

Tom: Well, the most important consideration is obtaining counsel that has a considerable amount of experience in federal court. This experience with the federal system will serve both the claims handler and the client well because the attorney will be able to ensure that the case moves forward at an appropriate speed and that ample time is devoted to complying the court deadlines and requirements. Experienced federal practitioners will also be familiar with the various district and magistrate judges. This knowledge will prove invaluable to claims handlers who will typically be able to receive better instruction for what is happening and what will happen in a given case.

Brian: By the same token, what would you say are the dangers of obtaining counsel inexperienced with federal matters?

Tom: Where to begin? I think it’s fair to say that obtaining counsel with little or no experience in federal matters can create a wide variety of dangers and pitfalls for both claims handlers and insureds. First, counsel inexperienced with federal matters will typically be surprised by the speed at which the case will eventually move. This can lead to mistakes being made either because a deadline is missed or work product is turned around in a short amount of time that has not been give the time and consideration necessary. Second, inexperienced counsel will have a more difficult time explaining to the claims handler and insured what should be expected. Whereas an experienced federal practitioner will be in a position to better evaluate a case and provide a more realistic evaluation, an attorney with little or no experience in a federal court will have a difficult time explaining what a judge is likely to do or how a particular argument or strategy will be received by the federal courts.

Brian: Just one more question before we wrap this up. Why is CSK uniquely equipped to handle federal matters?

Tom: Well Brian, I think it’s fair to say that we are uniquely equipped because CSK employs a large number of attorneys who are not only extremely bright and effective advocates, but who also have a wealth of experience in federal court. This federal experience, as I’ve mentioned, will serve both the claims handler and the insureds well in being able to receive a greater understanding for the federal court process and the thought processes of its very qualified judges.