Litigation

Q&A with the Northern District’s Magistrate Judge Kandis A. Westmore

1.         What are the key functions of a federal magistrate judge?

Magistrate judges in the United States District Court for the Northern District of California are authorized to perform the full range of duties provided for magistrate judges under Title 28 U.S.C § 636. The court encourages civil litigants to consent to the jurisdiction of magistrate judges for all purposes up to and including bench or jury trial and final judgment, with any appeal directly to the Ninth Circuit Court of Appeals. Unlike most districts, Northern District magistrate judges receive case assignments directly “off the wheel,” and so it is customary that a large percentage of the members of the bar readily consent to magistrate judge jurisdiction. As a result, magistrate judges carry very similar dockets to those of their Article III district judge counterparts – presiding over civil cases through trial with the consent of the parties. Indeed, a third of all civil cases filed in the Northern District are terminated by magistrate judges annually.

With respect to criminal cases, magistrate judges are the first judges that criminal defendants see when they appear to answer to the charges filed against them, because they preside over preliminary proceedings in felony cases and exercise complete jurisdiction over petty offense and misdemeanor cases through trial. Magistrate judges are also responsible for reviewing and approving the vast majority of search warrant applications submitted by federal law enforcement agencies. A substantial part of a magistrate judge’s time is also spent serving as a settlement judge in civil cases assigned to other magistrate judges and district judges. In addition to their work on civil cases for which they have obtained consent of the parties and settlement conferences, magistrate judges may handle pretrial case management, discovery and certain motions on cases assigned to district judges.

2.         What issues should federal court practitioners consider in deciding with the client whether to consent to the jurisdiction of a magistrate judge?

In the Northern District, there is no reason not to consent to a magistrate judge. Our magistrate judges are selected by a majority vote of the Article III judges based on their complete confidence that the candidate selected is fully capable of handling any civil matter randomly assigned to them, and just as effectively as an Article III judge. As such, only high caliber candidates are selected.

There are also advantages to consenting to a magistrate judge. Specifically, the parties get to have their entire matter heard by one judge instead of having discovery or other matters referred out to another judge. It’s a one stop shop. All appeals are taken directly to the 9th Circuit. There are no extra steps. This reduces the cost of litigation because there is no review of the magistrate judge’s decisions on discovery disputes. When the district judges refer discovery, motions for default judgment, motions to quash subpoenas and other things to a magistrate judge, the party who doesn’t agree with the magistrate judge’s decision can seek review by the district judge, which this multiplies the proceedings, creates duplicate work by two judges, and increases the cost of litigation. Magistrate judges regularly handle discovery matters and are always up to date on discovery law and can triage potential discovery disputes to get the issues under control early on (in case management conferences to prevent unnecessary motion practice) and can help the parties focus on the discovery that will prepare the case for possible settlement.

Since the magistrate judge caseload is not as large as that of a district judge, we can spend more time on each case and have more flexibility. The parties can generally obtain earlier hearings and trial dates, and we have more time to allot to hearings on motions. Magistrate judges are historically more likely to allow telephonic appearances using court call. This might change now that all of the judges on the court have more than one year of virtual hearings on Zoom. I suspect that some form of hybrid hearing will become the norm for magistrate judges and district judges. It is now hard to imagine requiring parties to fly across country to appear at a 20-minute hearing.

Some myths about magistrate judges need to be debunked.

Some attorneys say that their clients don’t want to consent to magistrate judges because they believe they aren’t real judges; they are concerned about titles; or they will blame the attorney if they don’t like the outcome when they could have declined and gotten assigned to a district judge.

  • Magistrate judges are real judges authorized by statute. The only major difference is the manner in which magistrate judges are selected and the length of appointment. One is a political process— nomination by the President of the United States and confirmation by the Senate Judiciary Committee for a lifetime appointment— and the other is a merit selection process in which the magistrate judge is vetted fully by a committee selected by the district judges before the finalists are interviewed by the entire district court bench. This is a rigorous process in which magistrate judges are selected based on their experience and hard work. Opposing counsel, other attorneys and judges who have had any experience with the applicant are contacted, cases litigated are reviewed, and a full FBI investigation of the candidate selected is conducted. And, again, the district judges select the magistrate judges based on their confidence that the candidate can handle any case that they can handle – knowing that that is what the Northern District requires. Indeed, most of the magistrate judges would not have applied for the job if it was treated like a glorified law clerk. As such, the Northern District receives a pool of sophisticated and experienced applicants who are ready and willing to fully adjudicate any case assigned to them.
  • Attorneys should explain to their clients that their impressions of magistrate judges based on experiences in other districts should not apply in the Northern District. The utilization of magistrate judges in this district is the model for the rest of the nation, because it is recognized as the most effective utilization model. Magistrate judges in the Northern District rarely write reports and recommendations that need to be reviewed and accepted or rejected by a district judge.
  • Many of the current Article III judges, including the current chief district judge and immediate past two chief judges first took the bench in this district as magistrate judges.
  • With respect to the argument that clients will blame the attorney for consenting to a magistrate judge if they are unhappy with the outcome because they know that the attorney could have just declined consent, attorneys should debunk that by explaining that one party has to lose – both sides can’t be right on every motion. This is true whether the judge has an eight-year appointment or a lifetime appointment. And the idea that it was a mistake to consent in hindsight because consenting turned out to be a bad choice makes no sense. The fact that there was a choice at the beginning and then the client doesn’t like the outcome and is looking to place blame should be addressed up front when the decision to consent or not to consent is made.

Give the client all the possible scenarios: (1) you might not be happy with the district judge’s rulings, and if you consent to a magistrate judge, you might not be happy with the magistrate judge’s rulings. (2) You always have a choice at the beginning. Just because your case is randomly assigned to a district judge doesn’t mean you don’t still have a choice to consent to a magistrate judge as early as before the first case management conference. So, using that previous logic, if the client did not get the desired outcome, they could blame the attorney for making the wrong choice and not consenting to a magistrate judge at any time during the case. So, to the extent that having a choice that one can be blamed for making later is the reason for declining, this can be debunked by pointing out that there is always a choice whether the case is assigned to a magistrate judge or a district judge at the beginning of a case.

3.         In motion practice, what are some ways that federal court practitioners can more effectively assert their clients’ position?

Federal court practitioners should practice with the goal of maintaining their credibility and reputation with the court and their peers to be effective advocates for their clients. First, do not file obviously unmeritorious motions simply for the sake of filing a motion. It is not a good use of judicial resources and undermines the attorney’s reputation with the court. It conveys that the client is either unclear regarding their position or filing a motion for an improper purpose, such as to delay or multiply the proceedings. For example, when it becomes apparent that there are material facts in dispute relative to the client’s claims or defenses, filing a motion for summary judgment just for the sake of filing one, undermines the attorney’s credibility with the court. 

Second, familiarize yourself with the civil local rules, the judges’ standing orders, and General Orders. For example, do not file a motion to file pleadings under seal without reviewing and fully complying with the applicable civil local rule. Recognize that each district has its own local rules and general orders. The local rules, general orders and standing orders are updated or amended periodically. So, never assume that you know the rules, especially if you practice in more than one district. Motions are frequently denied for failure to comply with these rules. Research and learn the criminal and civil local rules that apply in each court. Most courts provide this information on their websites, so it is easily accessible. There is no hiding the ball. Failure to review the rules in advance will undermine your ability to convey your client’s position. Even if you think you know the law and the local rules that apply to your case, look them up anyway. This will prevent unforced errors and show respect for the court’s and opposing counsel’s time. Do this, and you will be appreciated and respected by the court and your colleagues. When you are respected by the court and your colleagues, there is a general sense that if you have filed a motion, there must be some merit to it because you are known to be thoroughly prepared, knowledgeable about the law and unlikely to file a meritless motion. This is a good segue to my third point.

Third, meet and confer before filing any motion. The best way to get your client’s position across is to discuss it directly with opposing counsel before filing a motion. In all likelihood, if you have done your homework and can explain the legal basis for your anticipated motion, opposing counsel will stipulate to the relief you are anticipating obtaining, and unnecessary motion practice can be avoided. Indeed, a lawyer should not engage in conduct that forces opposing counsel to file a motion that he or she does not intend to oppose. (Guidelines for Professional Conduct ⁋10(b)). Meeting and conferring before filing a dispositive motion can also result in early settlement of the case.

You will find meet and confer requirements throughout the civil local rules (before seeking relief from a case management schedule; re scheduling depos, re resolving discovery disputes; for intervention during a discovery event, before filing objections to bills of cost, and before filing a motion for attys fees) and the court’s guidelines for professional conduct (requiring parties to meet and confer before filing any motion and to file discovery motions “sparingly”) as well as the judges’ standing orders. The best way to meet and confer is in person, during normal times, and virtually during the pandemic. Indeed, oftentimes, judges will order parties to meet and confer in the courthouse because in-person conversation is most effective. It’s much more difficult to take an unreasonable stance when looking someone in the eye.

Lastly, if a motion must be filed, practitioners should be sure to do adequate legal research, and address the cases that support and conflict with their client’s position. Do not ignore the cases that undercut the client’s position. Address them up front and distinguish them, if possible. If you cannot do that, do not file the motion. The willingness to concede on certain points shows knowledge of the case and respect for the court.

4.         Where does zealous advocacy cross the line, particularly, in the context of discovery?

Zealous advocacy crosses the line when attorneys personalize the litigation and take on a constant state of being on the attack. The scorched earth approach is not a good litigation strategy. Name-calling, shouting, interrupting opposing counsel and being generally disagreeable about everything does nothing to advance a claim or defense. Rather, it undermines the credibility of the client’s position and unnecessarily multiplies the proceedings. It also costs the client more money and can result in the imposition of sanctions. This lack of civility in the practice of law has become such a problem that the oath taken to become a lawyer in California was amended to add the sentence, “As an officer of the court, I will strive to conduct myself, at all times, with dignity, courtesy, and integrity.”

In the discovery context, the court often sees zealous advocacy go too far. Most, if not all, of the judges on the court now require the parties to file joint letters to address their discovery disputes because it forces the parties to meet and confer, narrow the scope of their disputes, and then work together on a letter to the court arguing their positions on the remaining issues that they were unable to resolve on their own. Some practitioners repeatedly resist this process and fail to meaningfully meet and confer regarding the discovery disputes, most of which can be easily resolved. It is clear to the court that insufficient discussions have occurred when a joint letter fails to sufficiently articulate what a party actually wants, when and why. I frequently terminate joint letters and require the parties to meet and confer like they were supposed to in the first place. This is such a waste of everyone’s time.

It is not uncommon for attorneys to refuse to produce a witness for a deposition or refuse to produce relevant documents. Most often, such refusals are unreasonable, and the party is ultimately ordered to produce the witness or documents. These are the kind of disputes that can and should be resolved through the meet and confer process rather than through court intervention. Parties often draft requests for production of documents so broadly that they encompass documents that are clearly not relevant to the subject matter of the case or they interpret requests in an artificially restrictive manner in an attempt to avoid disclosure. At the meet and confer, the parties should provide legal authority to support the positions taken and refer to other court orders on similar issues. Too often, however, the court sees discovery disputes used as a form of gamesmanship to avoid complying with discovery obligations. Such gamesmanship is not well received by the court, and, ultimately, it just wastes judicial resources and increases the cost of litigation. The court remembers and appreciates those who are collegial, reasonable and cooperative. If the number of discovery disputes in a case is so great that the court knows the case number by heart, zealous advocacy has surely crossed the line!

5.         What experiences have most influenced your approach as a jurist?

My personal experiences appearing in state and federal court when I was a practitioner inspired me to be a judge who treats everyone with dignity and respect. There is no need for me to speak to practitioners or parties who appear before me in a hostile or condescending manner. I never understood why some judges did that when I was practicing. It is simply not necessary. Everyone knows the judge is in charge, so there is no need to actively wield that power to communicate the obvious. I strive to make sure that the litigants who appear before me feel that they have had an opportunity to be heard during oral arguments, and I prefer to engage with them and the public in a meaningful and pleasant way.

6.         Are there any general tips you might offer federal practitioners who come before you in a case?

Lately, I have found myself asking practitioners whether they have read the Northern District Guidelines for Professional Conduct. The parties are required to attest to having read them in their initial case management conference statement. The guidelines impose duties that include civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation and competence for every lawyer who practices in the Northern District. A non-exhaustive list of examples is provided for almost every aspect of litigation. Despite representing to the court that they have read the guidelines, many of the scenarios the guidelines were designed to prevent continue to occur. My general tip to the federal practitioners who come before me is to thoroughly study those guidelines and apply them in every case. They are a recipe for success and an excellent reputation in the legal community. The best lawyers are the ones I see the least, because they are respectful of the court’s time and avoid engaging in unnecessary motion practice. And when I do see them, it is always an absolute pleasure. They meet and confer with opposing counsel in a civil and courteous manner and display in-depth knowledge of the case, which usually leads to the case being resolved through the alternative dispute resolution process or a narrowing of issues for trial.

Do not engage in improper ex parte communications with the court verbally or in writing. Understand the rules that govern communications with the court/chambers staff. Do not call the court every time a question comes up. Figure it out. This requires lawyers to understand what resources are available to them, i.e., standing orders (check them regularly), local rules (check them regularly), model orders provided by the court and so on. For example, do not call chambers and make a verbal request for any type of relief, such as to appear by telephone or to move a hearing date or to complain about something opposing counsel is doing or not doing.

Do not call me Ma’am or Miss or a nice young lady. And do not tell me I “do not look like a judge.” Instead, recognize the need for more diversity on the bench.

About Judge Westmore The Honorable Kandis A. Westmore was appointed as a Magistrate Judge for the United States District Court for the Northern District of California in 2012. She is assigned to the Oakland Division.

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