2014 Nuts & Bolts Seminar Coralville

Transcription

1 2014 Nuts & Bolts Seminar Coralville LITIGATION TRACK Deadline in Litigation 12:30 p.m.-1:30 p.m. Presented by Laura Bergus Hayek, Brown, Moreland and Smith L.L.P. 120 E. Washington St. Iowa City, IA Phone: THURSDAY, OCTOBER 30, 2014

2 Deadlines in Litigation ISBA Nuts & Bolts Seminar October 30, 2014, 12:30 p.m., Coralville Holiday Inn Laura E. Bergus, Hayek, Brown, Moreland and Smith, L.L.P., Iowa City I. SOURCES OF LITIGATION DEADLINES 1. CONSTITUTION Federal and state; standards may be different. 2. STATUTE Review the code as well as regulations implementing the code. 3. STATEWIDE COURT RULES Esp. Chapters 1 and 2 of the Iowa Court Rules. 4. LOCAL RULES Can vary from district to district, and from county to county. 5. CASE LAW INTERPRETING ALL OF THE ABOVE Check it before citing other authority on a deadline or timing issue. 6. COURT ORDER IN A SPECIFIC CASE Review pretrial orders to be sure they re clear and that all parties interpret them the same way, before issues arise. The authority for deadlines comes from a variety of sources, and a single deadline may arise from multiple sources. For example, a criminal defendant s right to speedy trial comes from the constitutional speedy trial right found in the Sixth Amendment to the US Constitution and Article I, Section 10 of the Iowa Constitution. This right is codified and quantified in statutes: 18 U.S.C. Section 3161 et seq. in federal law and Iowa Code Section in Iowa law. The Iowa statute in turn is a reference to the Iowa Rules of Criminal Procedure, wherein the speedy trial right can be found at Rule 2.33(2). The statutory authority includes a right to speedy indictment (30 days in federal law, 45 in Iowa) from the date the defendant is arrested. In Iowa, whether an arrest has occurred, for the purposes of invoking the speedy indictment and speedy trial rights, is determined on a case-by-case basis, considering a multitude of factors. See State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010). If the State blows the speedy indictment or speedy trial deadline in Iowa, the remedy is dismissal of the case. Rule 2.33(2). Be aware deadlines can come from a variety of sources, and that the simple arithmetic of determining a deadline like counting 45 days from the date of arrest may not be as simple as it seems. II. THREE STEPS IN EVERY CASE CIVIL OR CRIMINAL An attorney s involvement in litigation may begin with filing a petition, an appearance, an answer, or the court ordering appointment. Regardless of when you step into a case, be aware that there are deadlines you must be accountable for in every single case. To meet your professional and ethical obligations, you must know the deadlines, keep track of the deadlines, and meet the deadlines (or maintain some legally sufficient excuse). The author suggests the following steps for every case, regardless of type or procedural posture.

3 1. READ THE RULES OF PROCEDURE. These should be a starting point for every question about timing and deadlines in litigation. a. Know which Chapter to review. Deadlines are usually found in the procedural court rules: i. Chapter 1 Civil Procedure ii. Chapter 2 Criminal Procedure iii. Chapter 6 Appellate Procedure iv. Chapter 7 Probate Procedure v. Chapter 8 Juvenile Procedure vi. Chapter 12 Mental Illness Commitments vii. Chapter 13 Substance Abuse Commitments b. Know the Rules well enough to know where to look. Motion deadlines may be under a Rule governing motions, or under a Rule specific to that type of motion. Some refer to other Rules, like the time for filing a motion to amend or enlarge (Rule 1.904(2)) refers to the time to make motion for new trial (Rule ; ). Note there are upcoming changes in the civil rules, effective January 1, 2015: discovery changes and new expedited cases. Again, READ THE RULES. (Start reading them now so you can be prepared on January 1!) Be aware there are some fundamental differences between how deadlines in civil and criminal cases are calculated: many civil trial deadlines count backwards from the time of trial, whereas Rules of Criminal Procedure set several deadlines by counting forwards from date of arrest/custody, trial information, or arraignment. 2. REVIEW PRETRIAL ORDERS They can be different in every case due to the judge s preferences, the type of case, and the status of the case at the time the pretrial orders are entered. For example, a complex case with many parties or claims may have pretrial deadlines set sooner than they would be set in a simpler case. a. Spot the holes: know what s not addressed in the order. Do the Rules provide deadlines for issues not in the pretrial order? Consider talking with opposing counsel to agree on informal deadlines (but appreciate the consequences of either of you failing to abide by those). 2

4 b. If the case is continued, what happens to the pretrial deadlines? Be aware when asking for a new trial date if you want the court to expressly reset deadlines that count backwards from the trial date. 3. CALENDAR AND TICKLE ALL DEADLINES your malpractice insurance probably requires you to be able to show that you re on top of deadlines. How do you do this? Redundant systems. Not just one not just Google Calendar, not just Outlook calendar that s synced with Google Calendar. There are many different practice management options out there: the author s office uses a date-based electronic database from which we literally print a list of upcoming deadlines every day, and reminders set in Outlook calendar, and a system of triplicate paper slips, managed by staff and shoved under the attorney noses every day. a. Proposed checklist for tracking every deadline in every case: i. In the file on a piece of paper or in some other way represented in the file. For example, print out or scan/save every order with a deadline in it, or make a memo to the file of deadlines not courtordered. ii. On the calendar double check you re on the right week, day, year Check it against the court order, memo, etc. when entering. iii. Tickler paper, electronic, or both. iv. To the client inform the client of all deadlines as soon as you are made aware of them. Keep the correspondence informing the client of deadlines in the file (paper, electronic, or both). b. Enter and track deadlines even if you re 99.9% sure you won t have to follow through. Examples: orders, trial date for case about to settle. c. Set notifications far enough in advance you have a chance to get prep work completed: set subpoena deadlines for documents you might not get in discovery, far enough in advance you can use them in deposition of an expert, for example. III. SOME DEADLINES ARE REALER THAN OTHERS Different attorneys, judges, and local practices can dictate very different outcomes in the enforcement (or attempted enforcement) of deadlines. The practitioner should never assume that opposing counsel will be ok with, for example, tardy interrogatory responses simply because some other opposing counsel granted a two-month extension without even asking his client. Similarly, while the Rules push counsel to resolve discovery disputes between ourselves (note the upcoming changes in discovery rules requiring explicit disclosure of conversations to resolve 3

5 such disputes), one never knows how a judge will address a motion to compel. Below are some examples from the Rules and from the author s own experiences. 1. WRITTEN DISCOVERY: in the Rules and pretrial orders a. Requests for Admissions: Serve responses within 30 days or allegations become facts of the case, conclusively established in this case and evidentiary admissions in other cases. Rules and b. Interrogatory Answers: 30 days to answer in writing under oath; not always strictly enforced. c. Requests for Production: response in 30 days, but response can simply be, Will be made available for inspection; not always strictly enforced. 2. OTHER PRETRIAL DEADLINES: These deadlines should be noted in pretrial orders. If they re not, check the Rules, or confer with opposing counsel and ultimately the court to establish them, if needed. a. Expert designation. b. Depositions. c. Pretrial reports. d. Designation of exhibits, witness lists. e. Exchange of final, marked exhibits. f. Motions in limine. Note these deadlines can vary widely from case to case. They also generally differ between civil and criminal cases. For example, in the criminal context, the defendant must file with the court a witness list no later than the time of the taking of a deposition by a defendant. Rule 2.13(3). This can happen very early in the case, especially if the defendant seeks to invoke Rule 2.13(6), which requires depositions to be completed within 30 days of arraignment. (But also note the 30-day-deposition-completion rule appears never to be enforced in Johnson County ) A failure to disclose defense witnesses at least nine days before trial can result in exclusion of those witness testimony. In many civil cases, names of potential witnesses are disclosed relatively early in written discovery, but the final witness list often need not be filed until 10 days before trial (which is generally long past any final discovery deadlines within which to depose those witnesses). 3. POST-JUDGMENT CHALLENGES: Deadlines for challenging a decision of the court are often jurisdictional, meaning the court may not have authority to even hear the challenge if it s not timely filed. The follow are examples of post-judgment challenges. 4

6 a. Motion to Enlarge or Amend: Rule 1.904(2): need to request the court address something it inadequately addressed. 15 days from final order unless good cause shown, then up to additional 30 days. b. Motion to Reconsider: Beware! Not every motion to reconsider extends the time for appeal...motions to reconsider that are not in substance motions for new trial or rule [1.904(2) ] motions will not extend the time for appeal. Jovanovic v. Iowa State Univ. Veterinary Teaching Hosp., 674 N.W.2d 683, 2003 WL *2 (Iowa Ct. App. Nov. 26, 2003). c. Motion for Judgment Notwithstanding the Verdict; Motion for New Trial: Rules through ; 15 days from final order unless good cause shown, then up to additional 30 days. d. Certiorari: Rules through days from challenged tribunal action. How do you define the final action being challenged? e. Judicial Review: generally 30 days from final administrative action. Again, what s final? All remedies exhausted first? What s the timeline for those remedies? f. Appeal: Rule days from final order in TPR and CINA cases; 30 in other cases. Do you know what constitutes a final order? Examples: i. Order for temporary child custody is not a final order, requiring interlocutory appeal. In re Marriage of Denly, 590 N.W.2d 48, 51 (Iowa 1999). ii. Order for temporary child support, spousal support, or attorneys fees is a final order, appealable by right (and generally not appealable upon rendition of permanent orders therefore). In re Marriage of Winegard, 257 N.W.2d 609, 614 (Iowa 1977). IV. RAMIFICATIONS OF MISSING DEADLINES The results of missing deadlines range from lowering your self-esteem or embarrassing yourself in front of clients, opposing counsel, or the court, all the way to losing your license to practice law and facing personal liability for damages. Avoid these consequences: 1. LOOKING STUPID AND UNPREPARED Your professional reputation is yours to ruin. 2. LOSING STRATEGIC ADVANTAGE Missing deadlines often means you are unprepared, in addition to looking unprepared. If the other side is on top of discovery and you re not, you will miss facts that could have helped you better serve your client: good facts to leverage a better outcome in court or settlement, or bad facts to help you counsel your client to the right resolution of his or her case. 5

7 3. DIRECT HARM TO YOUR CLIENT Missing a deadline can ultimately lead to your client losing his or her liberty or property. An ineffective assistance of counsel claim down the road is little consolation to the criminal client sitting in prison because you blew the deadline for submitting his alibi defense or naming his best witness. In the civil context, missing a deadline can mean loss of your client s rights due to failure to designate that expert who would have made a helpful difference in the jury s understanding; or failure to discover a smoking gun document that could have settled the case in the first few months of litigation. 4. DISCOVERY SANCTIONS Rule Your failure to keep up with discovery deadlines could ultimately result in sanctions, including you or your client paying the other side s attorney fees. 5. ETHICAL VIOLATIONS Rule This Rule of Professional Conduct requires the attorney to be diligent in representing the client. There are many disciplinary opinions based on dilatory conduct by counsel. Your license is your livelihood. Don t jeopardize it just because you forgot to calendar a hearing in your haste to pass along some news to your client, or because your inbox was too full. 6. MALPRACTICE A failure to act with due care in meeting deadlines can result in a private lawsuit. A malpractice case can bring: increased insurance premiums, reputational damage, and actual damages, not to mention the tremendous stress and cost of resources in defending the same. V. WHEN IN DOUBT A little self-help on the front end can go a long way in avoiding the bad results of missing deadlines listed above. The following is a list of suggestions for clarifying, and therefore meeting, deadlines, if you re ever in doubt. Ultimately, it s in the interest of justice to be sure the parties are playing by the same set of rules. Getting a judge to weigh in can also be a way to protect your client s interests, if you have been or might be prejudiced by some difference of interpretation or failure to follow deadlines on the other side. You re also protecting yourself against negligence claims and ethic complaints from your client if you make a paper (or electronic) trial of your attempts to verify and comply with the deadlines in a case. 1. DO THE RESEARCH - There s no excuse not to conduct a few minutes of legal research. Fastcase (free to ISBA members); Google Scholar (free to everyone). 6

8 2. ASK COLLEAGUES Ask more experienced attorneys inside or outside of your office how they have handled issues relating to deadlines in litigation. Take their answers with a grain of salt because their opposing counsel might not have reacted the same way yours will when facing the same issue. But, these responses can help you approach the issue with opposing counsel. For example: I understand the deposition deadline provided in the pretrial order isn t considered a hard deadline by some practitioners. Nevertheless, your request to depose our duly designated expert three days before trial cannot be accommodated. Or: I read Rule 2.13(6) to require depositions to be completed within 30 days of arraignment. I realize the County Attorney s office may not often field requests to comply with this Rule. However, my client has not waived his right to speedy trial and he is requesting to depose the investigating officer in this matter no later than x date, which is the 30 th day after my client s arraignment. 3. ASK OPPOSING COUNSEL Do not hesitate to pick up the phone and confer with opposing counsel about a deadline. This is required by the Rules if the deadline at issue leads to a discovery dispute you wish to ultimately bring to the court. None of us want to sound ignorant to opposing counsel (especially if that person has already reminded you they have been practicing law longer than you have been alive), but you are protecting yourself and your client by checking to be sure you and the other side are on the same page or verifying that you re not. 4. ASK THE COURT If you re unsure about the how and when of purely procedural aspects of a case, and neither your mentors nor opposing counsel can be of help, don t be afraid to request the court enter an order establishing deadlines with greater clarity. Depending on the parties and judge involved, an to the court (not ex parte, of course!) requesting informal clarification can also help all parties stay on track and avoid the harm of missing deadlines. 7