Tips for Federal Court Litigators

By Jenn French

On Friday, May 13, 2022, judges from each of the four District Courts in California joined CLA’s Annual Litigation & Appellate Summit for a Judges’ Town Hall. Mariam Kaloustian moderated a thoughtful discussion with the Honorable Yvonne Gonzales Rogers from the Northern District, the Honorable Philip S. Gutierrez from the Central District, the Honorable Kimberly J. Mueller from the Eastern District, and the Honorable Dana M. Sabraw from the Southern District. Collectively, the jurists had over 50 years of judicial experience and over 85 years of legal practice, and the latter three are the Chief Judges in their respective districts.

First, Ms. Kaloustian asked each judge to identify the most important attributes possessed by effective courtroom advocates. Judge Gonzales Rogers advised lawyers to listen to the judges’ questions and address them, even if the attorneys feel uncomfortable with the gray areas in their case: “Answer them anyway. Give it your best shot.” Judge Mueller reminded attorneys that judges hold oral argument because they want to hear the answers to their questions. “With full integrity,” he said, “tell us exactly what we need to understand to get our arms fully around the case.” Judge Gutierrez echoed this sentiment and advised attorneys to be direct, brief, and right to the heart of the question. For Judge Sabraw, the best advocates are not necessarily the ones from fancy schools or law firms, but the ones “who invariably are the most prepared.”

Next, the judges offered recommendations for attorneys seeking to improve their advocacy skills. The panel unanimously recommended that attorneys observe oral arguments with the assigned judge. Judge Sabraw encourages attorneys to be proactive and identify mentors to observe in different courtroom proceedings to learn what to emulate and what not to do. “And then there’s the leap of courage where you actually have to do it.” Judge Gutierrez stressed the importance of carving out time to watch others for invaluable experience. If attorneys are new to a specific judge, he recommends going to watch argument the week before to see how the courtroom operates. Judge Mueller advised attorneys to do one or more moot arguments, especially for a high stakes motion: “Do something to overcome the jitters or the doubts before you standup at the podium in the courtroom.” And Judge Gonzales Rogers highlighted a silver lining of the pandemic: “With the advent of zoom, you can watch from the comfort of your home and/or office!”

Speaking of virtual appearances, the judges expressed a preference for in person arguments. Judge Gonzales Rogers candidly spoke about zoom fatigue and her preference for the live back and forth that makes oral argument more enjoyable and more effective. Judge Gutierrez reminded the audience that not all judges allow virtual arguments and highlighted the importance of checking chambers’ rules. Judge Mueller strongly prefers in person argument and feels that the nuances of body language and tone can be missing from zoom. But she now holds initial scheduling conferences virtually in almost every case, which works well at that early stage. Judge Sabraw agreed with his colleagues that, for meatier hearings with an evidentiary component, in person argument is preferred. But he is also a proponent of telephonic conferences, especially for very large cases. Judge Sabraw has found great success with telephonic conferences, which reduce the carbon footprint and costs in a case by cutting down on travel, and finds them orderly, clinical, and concise. He also noted that, anecdotally, firms seem to be more open to younger attorneys arguing over the phone versus in person.

The panel next discussed how civility impacts the outcome of cases. Judge Sabraw began the discussion on civility, “one of [his] favorite topics,” by explaining that lawyers who are respectful of the process, the court, and the jurors are always the most effective. He noted that “the ‘Rambo style’ of litigation loses the trust of the jurors and the courts. Civility is the most effective advocacy, and your clients deserve that.” Judge Gutierrez concurred: “People tune out when someone’s being hostile, not being civil. That gets in the way of the message.” Judge Mueller hosts the Sacramento County Bar Association’s rules of civility on her chambers’ website. She explained how clerks make note of civility and professionalism, discuss this with the judges in post-hearing debriefs, and take lessons from arguments. “Be that attorney,” she advised, “to be the example for the others coming along behind you.” Judge Gonzales Rogers stated that civility is “critical for our profession” and reminded lawyers that “you can’t really change who you are. Your person is how you litigate, how you try cases. Be that person with integrity and professionalism and living that every day is really important.”

In addition, the judges discussed a variety of methods to streamline cases and keep them moving, including the use of zoom and telephone conferences for scheduling and resolving disputes without the need for motions. They provided a roadmap to avoid pitfalls in trials and how to recover from mistakes that inevitably happen. The judges also gave advice for those practitioners facing their first jury trial, which mirrored the advice on oral arguments: watch, practice, and identify a veteran mentor to help you learn the necessary skills. And the panel addressed the use of technology in jury trials, especially for opening statements and closing arguments. They focused on the need to balance an attorney’s authentic style with the fact that jurors like and often expect technology to make trials more entertaining.

Finally, each judge gave their final thoughts on federal practice. Judge Sabraw reflected that “it’s a wonderful, wonderful profession and I’m happy to be part of it. I always invite people to call my chambers and find out when I have a short trial or a sentencing. You’re always welcome.” Judge Gutierrez acknowledged that it can be a very stressful profession and encouraged attendees to find ways to enjoy it: “You can have fun being a lawyer.” Judge Mueller gave similar advice: “if you apply yourself and do the work, you can transcend the stress.” Judge Gonzales Rogers told attendees it’s all about PIE: “That is my big deal. Passion Integrity Excellence. It’s a long journey, so be passionate about what you’re doing. Integrity really matters and if you do an excellent job, it will be a wonderful lifelong event.”

Christian Andreu-von Euw introduced the panelists and, with Ms. Kaloustian, produced the panel and facilitated the wonderful conversation. Both are members of CLA’s Federal Courts Committee.

Author: Jenn French is Of Counsel at Patterson Law Group, APC, a San Diego based commercial litigation firm that focuses on complex class action litigation, including consumer protection, privacy, and employee rights. She serves on CLA’s Racial Justice and Federal Courts Committees.