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Motion Advice From Seventh Circuit Judge David Hamilton

By George Khoury, Esq. | Last updated on

Judge David Hamilton of the Seventh Circuit Court of Appeals has some rather novel advice for lawyers that would likely make his former colleague, Judge Posner, smile ear to ear: Pick up the phone and call (or email) opposing counsel before filing your motion with the court, especially those administrative case management motions.

While this cold-blooded calling out in an appellate in-chambers opinion was phrased much more eloquently, in short, Judge Hamilton explains that it is much easier for the court to rule on case management motions if the moving party certifies that the opposing party does not oppose the motion. Rather than waiting for the requisite time for an opposing party to file an opposition to expire, if a court knows the other side doesn't oppose the motion, it can grant it sooner.

Nudging the Court Via Notification of Non-Opposition

The motion ruled upon by Judge Hamilton concerned two separate appeals of Social Security Administration decisions which sought consolidation. The government did not oppose the consolidation, and the individuals were the ones moving for it. Judge Hamilton noted that when the court receives an administrative case management motion, such as one seeking consolidation, an extension, additional pages for briefing, or some other administrative matter, the court has two options on how to proceed once the motion is received:

  1. Contact the adversarial party to see if they oppose the motion, or
  2. Wait and see if an opposition gets filed.

However, as Judge Hamilton suggests, in the motion itself, the moving party should inform the court whether the opposing party consents to the requested motion, or minimally does not plan on opposing the request.

And while it is not explicitly stated in the brief instructional opinion, these statements should be supported by evidence found within a counsel's declaration in support of the motion, such as an attached email, or simply the declaratory statements surrounding when consent or notice of non-opposition was received.

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