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Federal Appellate Judge Provides 'Helpful' Tip for Litigators

By George Khoury, Esq. on December 06, 2017 | Last updated on March 21, 2019

Judge David Hamilton of the Seventh Circuit Court of Appeals has a rather simple and helpful tip for litigators filing administrative motions: Talk to your adversary before filing the motion.

As Judge Hamilton explains in a recent order granting a motion for two pending appeals to be consolidated along with an amended briefing schedule, the moving party could have saved time for both the court and the parties by simply making a call and advising the court of an adversary's non-opposition or consent/agreement to the motion.

Ask Your Adversary and Advise Your Judge

While an adversary's agreement or non-opposition doesn't mean you can get out of filing an administrative motion, Judge Hamilton explains that the courts "cannot reliably predict" whether a mundane administrative motion will provide a strategic effect due to the adversarial system. As such, he continues to explain, when the court receives such a motion, it has two options: Either wait for an opposition to filter in within the requisite time period, or contact the adversarial party to see if an opposition motion is planned.

Since courts are notoriously overburdened, it is unlikely a court will exercise the latter option. And in fact, Judge Hamilton's own court took the wait and see approach. However, after no opposition was filed, he granted the motion and decided to use the order as a teachable moment for the attorneys on the case.

In brief, Judge Hamilton advised:

To avoid the delay inherent in the sort of caution I exercised here, counsel have their own option for speeding things up: contact counsel for the opposing parties and ask if they will consent to the motion, or at least state that they will not oppose it. Then tell the court in the motion that the other parties consent to or will not oppose the motion. With that message, the court can be confident that it need not wait to protect the interests of the other parties.

In practice, you probably want to put your advisement to the court in a declaration filed in support of the motion. And your declaration should provide an accurate summary of the conversation with your opposing counsel where you were advised of their consent or non-opposition. If there is a paper trail, like an email, you can attach that to the declaration. Also, even if a stipulation isn't enough for the court to act upon, having one certainly won't hurt, and would likely result in your motion being granted even faster. 

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