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Federal Court Manual Questionnaires: an invaluable source of information for litigators in federal court.

Litigators in federal court frequently have questions concerning the practices and procedures of the federal judges assigned to their cases. For example, federal practitioners often seek information regarding a wide range of issues relative to judicial practices and procedures including the following:

1) The court's policy concerning communications with the judge's staff, including whether it is appropriate to telephone chambers regarding questions of procedure on pending matters and whether it is appropriate to telephone chambers regarding the status of pending matters;

2) The court's civil pretrial procedures, including the matters typically discussed at preliminary pretrial hearings and conferences, the motion practice of the court, the ability of counsel to call the court concerning disputes arising during depositions, and the policy/practice of the court regarding the use of alternative dispute resolution devices;

3) The court's criminal pretrial procedures, including the matters typically discussed at preliminary pretrial conferences in criminal cases;

4) The court's policy concerning nolo contendere or Alford pleas and the court's policy concerning plea arrangements that involve sentencing recommendations; and

5) The court's trial procedures including voir dire, opening statements, use of experts, filing of trial briefs, scheduling of trial dates, procedures for use of demonstrative aids, procedures for objections, and jury procedures, including the ability of jurors to take notes and ask questions either orally or in writing.

Although federal practitioners are well advised to review the federal rules, local rules, case law, and any discovery practice manuals that may exist in their district, (1) these sources of information do not completely address each of the practices and procedures of the individual federal judges. Indeed, Fed. R. Civ. P. 83(b) expressly recognizes that "A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. [subsections] 2072 and 2075, and local rules of the district." Accordingly, because the judicial practices and procedures may vary from one judge to another judge even within the same district, it is particularly important that litigators become familiar with the individual practices and procedures of the judge before whom they are appearing in federal court.

In an effort to address the judicial practices and procedures of the federal judges in the State of Florida, the Federal Court Practice Committee of The Florida Bar annually publishes the Federal Court Manual Questionnaires, which contains completed judicial questionnaires from most of the federal judges in the Middle, Southern, and Northern districts of Florida. These completed questionnaires include a wealth of information and describe the individual practices and procedures of the federal judges responding to the judicial questionnaires. (3) The Federal Court Manual Questionnaires also allows the judges the opportunity to make any additional observations and recommendations which may be of assistance to counsel who appear before the judges in federal court. Finally, the Federal Court Manual Questionnaires also affords the judges the opportunity to furnish biographical information as well as model case management and scheduling orders.

The Federal Court Manual Questionnaires is published once a year in book form, and is also maintained electronically on the Web site of the Federal Court Practice Committee of The Florida Bar. The committee's Web site can be located through The Florida Bar's online home page, www.flabar.org, by linking to the "Organization" directory and accessing the Federal Court Practice Committee under "Standing Committees."

As of the date of the publication of this article, approximately 70 U.S. district judges and U.S. magistrate judges--in the Middle, Southern, and Northern districts of Florida--have already completed the detailed judicial questionnaires. In addition, the Federal Court Practice Committee is in the process of updating and expanding the Federal Court Manual Questionnaires to also include completed questionnaires from additional federal judges, including judges serving on the U.S. Court of Appeals for the Eleventh Circuit.

The questionnaires for the appellate judges serving on the U.S. Court of Appeals for the Eleventh Circuit are tailored to appellate practice and procedure. These questionnaires seek to elicit information concerning a variety of issues, including the circuit judge's policy regarding communications with the court's staff; suggestions regarding effective oral advocacy before the Eleventh Circuit; observations regarding questions from the bench during oral argument; advice regarding effective appellate briefs; suggestions regarding requesting en banc hearings; observations concerning the differences and/or similarities between successful advocacy in trial courts and successful advocacy in appellate courts; and any other recommendations for members of the federal bar relative to appellate practice in the U.S. Court of Appeals for the Eleventh Circuit. Some of the circuit judges, in responding to the questionnaires, have also furnished articles they have authored on the subject of appellate practice. (3)

Although each of the completed questionnaires is unique and must be reviewed to ascertain the practices and procedures of the individual federal judges, there are at least some common themes that can be gleaned from the judicial surveys. Judges, both at the trial and appellate level, expect that: 1) counsel will be prepared and thoroughly familiar with the evidence at trial and the record on appeal; 2) counsel will directly and precisely answer questions from the court; 3) counsel will be forthright; 4) counsel will comply with any applicable federal rules, local rules, and case management and scheduling orders; 5) counsel will prepare well-written briefs that state the facts accurately, clearly, and succinctly, and discuss the relevant legal precedent; 6) counsel will read the cases cited in the briefs and accurately represent the holdings of the cases; and 7) counsel will be courteous, polite, and professional and exercise appropriate courtroom decorum. A number of the appellate judges, in addressing oral argument, have also suggested that counsel should be prepared to answer questions from the bench rather than summarize what is already in the briefs, and that counsel should recognize that the judges asking the questions are being helpful by directing counsel to those portions of the case that are of concern to the court. As some of the appellate judges have observed, by addressing the concerns of the inquiring judges, counsel has the opportunity to clarify applied points of law and advocate the client's legal position.

In conclusion, the Federal Court Manual Questionnaires provides an invaluable source of information concerning the individual practices and procedures of numerous federal judges serving the State of Florida. In addition, the Federal Court Manual Questionnaires provides keen insights and suggestions by the judiciary to enhance the skills and performance level of practitioners in federal court. Litigators in federal court would be well advised to avail themselves of this wealth of information which has been voluntarily--and graciously--furnished by the judiciary.
Sample Judicial Questionnaire for United States District Judge

The following information has been secured
by voluntary questionnaire from the judiciary.
This information is not binding on any judge or
court official and may not be relied upon for
precedential purposes.

Name of United States District Judge:
Location of Chambers:
Phone Number:
Assigned Courtroom:

1. Staff:
Scheduling Assistant/Secretary:
Courtroom Deputy:
Phone Number:
Law Clerks:
What is your policy regarding communication
with staff [i.e., Do you permit counsel to contact
assigned law clerks?]:
 Is it appropriate to telephone Chambers regarding
questions of procedure on pending matters?
Yes No
 Is it appropriate to telephone Chambers regarding
the status of pending matters? Yes No
Docketing Clerk:
Phone Number:
2. Civil Pretrial Procedures:
A. Preliminary Pretrial Hearings:
 Do you conduct preliminary pretrial hearings?
Yes No
 If YES, what matters do you typically discuss
during preliminary pretrial hearings?
 If NO, do you refer preliminary pretrial hearings
to a United States magistrate judge?. Yes
No
B. Motion Practice:
 Should courtesy copies of pleadings and
motions be forwarded to chambers? Yes No
 Should copies of cases cited in motions and
memoranda be forwarded to chambers? Yes No
 If so, should copies be attached to the motions
or memoranda?
 If copies of these cases are submitted, do you
accept copies which have portions highlighted
by counsel?
 Do you allow telephonic hearings? Yes No
 What can an attorney do to call attention to a
pending motion of particular importance to expedite
ruling?
 Will you entertain motions in limine prior to
trial?
 Yes No
 If you will consider motions in limine prior to
trial, how far in advance should they be filed?
 Do you regularly set aside time during a given
week/month for hearings on motions? Yes No
 If YES, when is your normal hearing date/
time?
 What are your procedures concerning ex-parte
temporary restraining orders?
 Do you hear preliminary injunction motions
yourself?
 Yes No
 If NO, do you routinely refer preliminary injunctions
for report and recommendation by a
U.S. magistrate judge? Yes No
 If YES, do you limit the hearing to argument
of counsel? Yes No
 If No. what are your procedures for the receipt
of evidence during a hearing on a preliminary
injunction?
 What is your practice concerning oral arguments
of dispositive motions?
C. Settlement:
 What is your policy/practice regarding the use
of alternative dispute resolution devices such as
court-annexed, nonbinding arbitration and mediation?
 Do you personally conduct settlement discussions?
 Yes No
 If YES, under that circumstances?
D. Discovery:
 Do you refer discovery matters to a U.S. magistrate
judge? Yes No
 When dispute arises during a deposition, is it
appropriate to call the magistrate judge's chambers
to seek an immediate ruling? Yes No
E. Pretrial Conference:
 Do you personally conduct pretrial conferences
in your cases? Yes No
 If YES, do you have a standing order regarding
pretrial conference? Yes No
 If YES, please attach a copy.
3. Criminal Pretrial Procedures:
Do you personally conduct preliminary pretrial
conferences in criminal cases? Yes No
 If YES, what matters do you typically discuss
during a preliminary pretrial conference?
 If NO, do you refer preliminary pretrial conferences
to a U.S. magistrate judge? Yes No
 Do you have a policy regarding the timing of
disclosure of Jencks Act material? Yes No
 If YES, what is your policy?
4. Policy Concerning Pleas:
 What is your policy concerning nolo contendere
or Alford pleas?
 What is your policy concerning plea arrangements
that involve sentencing recommendations?
5. Trial:
A. Trial Dates:
 Do you grant trial dates certain? Yes No
 If YES, under what circumstances will you
grant trial date certain?
 If a case is not reached during the scheduled
trial term, will the trial date be automatically rescheduled
on your next trial docket? Yes No
 If NO, what is your practice or procedure regarding
rescheduling trials which are not reached
on a trial docket?
 What is your policy regarding notice of being
called for trial during a trial docket?
B. Trial Briefs:
 Do you require trial briefs in jury trials? Yes
No
 Do you require trial briefs in bench trials? Yes
No
 What are your requirements for trial briefs?
 When are trial briefs due?
 Do you require proposed findings of fact and
conclusions of law to be filed in bench trials?
Yes No
 If YES, when do you require the proposed
findings of fact and conclusions of law to be filed?
 Should findings of fact and conclusions of law
filed in connection with a bench trial also be submitted
to Chambers on a disk? Yes No
 When do you require parties to file proposed
jury instructions?
 Where standard jury instructions are available,
do you prefer that attorneys submit condensed
versions of the standard instructions?
Yes No
 Should jury instructions also be submitted to
Chambers on a computer disk? Yes No
C. Voir Dire:
 Do you permit counsel to conduct voir dire?
Yes No
 If YES, what guidelines or restrictions must
counsel follow when conducting voir dire?
 If judge conducts voir dire, can parties submit
proposed voir dire questions? Yes No
 If YES, when should such questions be submitted?
What are your preemptory challenge procedures?
 In multiple party cases, do you grant each
party three preemptory challenges? Yes No
 If NO, do you limit each side [i.e., plaintiff/
defense] a total of three preemptory challenges
to be shared? Yes No
Do you allow back striking during jury selection?
 Yes No
D. Opening Statement:
 Do you have any standard time limits imposed
upon counsel? Yes No
 If YES, what are the time limits?
 Can exhibits be used in opening statements?
 Yes No
 Do you allow plaintiffs to make a rebuttal during
opening statements? Yes No
E. Use of Expert:
 Do you conduct Daubert hearings prior to
trial?
 Yes No
F. Procedure for Use of Videotapes, Trial Graphics,
Depositions and Demonstrations:
 What, if any, procedural requirements do you
have relative to the use of videotapes, trial graphics,
depositions and demonstrations?
G. Procedure for Objections:
 What, if any, procedures do you have concerning
objections at trial?
H. Jury Procedures:
 Do you permit jurors to take notes? Yes No
 Do you permit jurors to ask questions either
orally or in writing? Yes No
 If YES, under what constraints and restrictions?
6. Sentencing:
 Do you allow the submission of sentencing
memoranda? Yes No
 If YES, under what circumstances do you allow
such submission?
 Do you divulge the probation officer's sentencing
recommendation? Yes No
7. Observations/Recommendations:
 What, if any, other observations or suggestions
do you have for members of the Bar relative
to appearing before you in federal court?


(1) There is an excellent handbook on civil discovery practice in the U.S. District Court for the Middle District of Florida which was revised and approved in 2001 by the Advisory Committee on Local Rules and the Magistrate and District Judges of the Middle District of Florida.

(2) Attached to this article is a sample questionnaire for the U.S. District Judges in the Middle, Southern, and Northern districts of Florida. (The judicial questionnaire for the U.S. Magistrate Judges is substantially similar, although not identical, to the sample questionnaire for the U.S. District Judges.) As is reflected in the sample judicial questionnaire, the information provided by the judiciary is not binding on any judge or court official and may not be relied upon for precedential purposes. Nonetheless, the information contained in the completed questionnaires is highly instructive relative to the judicial practices and procedures of the individual federal judges.

(3) As of the date this article went to press, two circuit judges had submitted articles they had authored on the subject of appellate practice. Judge Stanley F. Birch, Jr., of the U.S. Court of Appeals for the Eleventh Circuit, in responding to the questionnaire, has referenced and attached an article he has revised and distributed over the years entitled, "Helpful Hints" on Appellate Practice. Judge Joel F. Dubina, of the U.S. Court of Appeals for the Eleventh Circuit, in responding to the questionnaire, has referenced and attached an article he has authored entitled, How to Litigate Successfully in the United States Court of Appeals for the Eleventh Circuit.

Jerry Mo Gewirtz is a trial and appellate attorney for the City of Tampa and serves as chair of the Federal Court Practice Committee of The Florida Bar. Mr. Gewirtz received his B.A., Phi Beta Kappa and summa cum laude, in 1977 from Temple University and his J.D. in 1980 from Temple University School of Law where he served as associate editor of the Law Review and was a member of the moot court board. The author and the committee acknowledge and thank the federal judges serving the State of Florida for taking the time to contribute to the development and expansion of the Federal Court Manual Questionnaires.
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Copyright 2002 Gale, Cengage Learning. All rights reserved.

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Author:Gewirtz, Jerry M.
Publication:Florida Bar Journal
Date:Nov 1, 2002
Words:2567
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