News You Can Use: Advice From Our Magistrate Judges

Whether you are new to practicing in the Northern District of New York, or have done so for many years, you can benefit from advice and insight from our five full-time Magistrate Judges, to whom we posed the same questions:

  1. What advice do you have for attorneys appearing before you in civil cases?
  2. What advice do you have for attorneys appearing before you in criminal cases?

The answers below come directly from our Magistrate Judges in Syracuse and Albany: the Hon. David E. Peebles, the Hon. Therese Wiley Dancks, the Hon. Andrew T. Baxter, the Hon. Christian F. Hummel, and the Hon. Daniel J. Stewart. You can reach their respective biographies here.

Advice in Civil Cases

From Chief Magistrate Judge Peebles:

  1. Pay attention to and take seriously court-ordered deadlines. They may be extended, even on consent of the parties, ONLY upon a showing of good cause. So for example, if you have an impending deadline for disclosing experts, and you need to take depositions or obtain other discovery to allow your expert to prepare a report, plan accordingly, and if the other side is not cooperating, seek court assistance.
  2. In the event that extension of court-ordered deadlines is to be sought, make the request as far in advance of the current deadlines as possible. Extensions sought at the eleventh hour are usually not well received, and a party should not assume that they will be granted.
  3. Know when to stop talking during a court proceeding or argument, and be attuned to the judge’s comments. If it appears the court has read the papers, don’t regurgitate the contents unless asked, and instead inquire of the court if there are questions or particular issues the judge would like you to address. This point brings to mind a time when I heard Judge Munson say to a lawyer: “You are winning counselor. I suggest you sit down before you convince me to change my mind.”

From Magistrate Judge Dancks:

  1. Plan ahead. Be realistic when conferring on deadlines and propose due dates accordingly when submitting your Civil Case Management Plan (“CCMP”) before the Rule 16 conference. Note that per General Order 25, the CCMP is due one week before the Rule 16 conference. If you need an extension for the filing of the CCMP or anytime during the course of discovery, ask for it by letter on the docket in a timely manner – that is, well before the deadline expires – and make sure you set forth a good-cause reason for the request, even if you and opposing counsel agree on the extension.
  2. Be nice. As you know you must meet and confer before bringing a discovery dispute to the court’s attention. In my book, the only way to have a meaningful meet and confer is to actually speak to each other by phone or in person. Don’t just send emails and/or letters. This also means you should always return phone calls from opposing counsel so you can discuss such issues before requesting court intervention.
  3. Put requests in writing. Don’t call the court. The courtroom deputy or law clerks will tell you to file the request on the docket anyway. Please also remember that the court may not get to your requests right away after you file them. So going back to #1, plan ahead. If you need an extension, ask for it well in advance so you don’t have to follow up with a call to the court to see if it will be granted. If you do have to call the court, don’t be rude to the deputy or the law clerks. You can bet the judge will hear about it.

From Magistrate Judge Baxter:

  1. Consider consenting to Magistrate Judge jurisdiction (subject to District Judge approval). Because we have a less-congested trial schedule than do District Judges, who must give priority to felony criminal trials, Magistrate Judges are more readily available to try civil cases, and can be more flexible about the timing of a trial. Magistrate Judges are generally amenable to trying a case on the road if a particular court location is more convenient overall for the parties and witnesses. If an early dispositive motion will promote efficient case management or facilitate settlement (and there are a lot of early dispositive motions filed that don’t do either), parties may consent to a Magistrate Judge for the limited purpose of resolving that motion. Because most District Judges have a daunting dispositive motion calendar, an early motion can take six months or more to resolve. Magistrate Judges can usually resolve such a motion more expeditiously, on consent.
  2. The obligation of lawyers in a civil case to meet and confer regarding a discovery (or other non-dispositive) dispute, in my view, requires the parties to actually speak to each other, by phone or in person, not just exchange snarky letters or e-mails. I often conduct telephone conferences on discovery disputes where the parties have not actually spoken to each other until they get on the phone. I am frequently able to resolve the issues, but the parties often could have worked out the dispute without judicial intervention if they had negotiated and compromised in good faith. If a party wants to amend a pleading, circulate a draft and negotiate about consenting to the amendment before seeking leave to file a motion to amend.
  3. Learn how to prepare an adequate privilege log. I rarely see a privilege log, and/or supporting affidavits, that meet the legal requirements articulated by Judge Sharpe in Alleyne v. New York State Educ. Dept., 248 F.R.D. 383, 386 (N.D.N.Y. 2008), and an inadequate log is grounds for denying the claim of privilege. Do not expect that a Magistrate Judge will do an in camera privilege review unless the parties have exchanged adequate privilege logs and negotiated in good faith to limit the scope of the privilege dispute.

From Magistrate Judge Hummel:

  1. Do not underestimate the power of a well-organized and well-written brief. Include a detailed table of contents, descriptive headings and subheadings, and pin cites for every single citation to a case or to the record. Avoid hyperbole in your writing. While you may be passionate about your argument, over exaggerating is rarely, if ever, effective. Be concise, and allow your argument to speak for itself.
  2. Be civil. Civility should extend to brief writing, as well. If the Court can tell that the attorneys are not getting along from reading the briefs, you have done something wrong. Adversarial writing does not have to be hostile.
  3. Meaningfully participate in pre-trial conferences. In a civil action, attorneys are required to meet and confer regarding a discovery dispute. In order to satisfy that requirement, attorneys must meet in person or discuss the issue by telephone. At many discovery conferences, it is clear that the attorneys have not spoken regarding the dispute. When the parties meet and confer in good faith, most discovery disputes are resolved without the need for Court intervention. Moreover, a Rule 16 conference is my first opportunity to discuss a case with the attorneys. Each attorney should be prepared to provide the Court with a brief statement of their client’s position. The attorney should also be ready to discuss the possibility of an early settlement either through a conference with the Court or in the mediation program.

From Magistrate Judge Stewart:

  1. I generally hold the Rule 16 initial conference in person so that I can meet the attorneys and get a firsthand recitation of the facts. I often find that when the Plaintiff’s counsel makes his or her presentation, or the defense counsel recites the view from their client, not only is it helpful to the court, but often this information is being presented for the first time to the other side and can really clarify the points that need to be developed. Therefore, attorneys need to be prepared to talk about the facts of the case at the conference, and to discuss any unique discovery issues that may arise and, most importantly, to discuss the prospects of settlement, or at least what can be done by way of discovery to make subsequent settlement discussions bear fruit.
  2. With regard to discovery deadlines, I recognize that this is not your only case. On the other hand, attorneys should be aware that the Northern District for years was designated as a congested court because of the number of cases pending for more than three years. We do not want to go back on that list. With the recent modification of the Federal Rules to allow the Court to decide as to what discovery is “proportionally relevant to the needs of the case,” we do have the ability to limit discovery so as to promote the just, speedy, and inexpensive resolution of the case. One area of lag time that could be handled differently is between the filing of the complaint and the initial Rule 16 conference. While discovery is generally not allowed during that period, there is nothing that would prevent an attorney, in the proper case, from serving initial discovery demands and interrogatories slightly before the conference, or at the conference, so there is no delay in beginning discovery.
  3. I join in the comments of the other Magistrate Judges about the need to be respectful to your opponent and to the court, and to show that respect by engaging in meaningful attempts to resolve discovery disputes prior to court intervention. And please, leave out the ad hominem attacks.

Advice in Criminal Cases

From Chief Magistrate Judge Peebles:

  1. When representing a criminal defendant at a detention hearing, it is not always enough to simply oppose the government’s request for detention. Be prepared to propose release conditions, depending on the client and whether the focus is on risk of flight or danger, that will satisfy the court.
  2. Read the Bail Reform Act, especially 18 U.S.C. § 3142(g), before a detention hearing, and be prepared to argue how the relevant factors favor detention (if you are the government’s attorney) or release (if you represent the defendant).

From Magistrate Judge Hummel:

  1. At a detention hearing, an attorney should be able to provide the Court with proposed, appropriate conditions for release instead of simply opposing the Government’s request for detention. Defense counsel should be prepared to tell the Court where defendant will reside if released, and what bail resources are available.
  2. Confer with your client prior to Court proceedings (i.e., detention hearings) regarding their right to a detention hearing and a preliminary hearing. Defense counsel should also discuss the scheduling of these hearings with the defendant.

From Magistrate Judge Stewart:

  1. The issue of the Defendant’s right to a detention hearing and a preliminary hearing will be addressed at almost every initial appearance. I would ask that you speak with your clients prior to court regarding these rights, especially in circumstances where you are seeking to waive them. As a matter of course, I will ask the Defendant if he or she understands their rights, and you’ll avoid the awkward pause and stare from your client if you’ve gone over this issue beforehand.
  2. Sometimes, issues about release depend upon what options are available. If the issue is whether the Defendant has a stable place to reside, I often find it helpful if the friend or family member who is offering up their home is present in court so that I can ask them some direct questions. In addition, if the Defendant has significant mental health or substance abuse issues, I will be looking to defense counsel to provide some plan as to how those issues are going to be addressed in a meaningful manner. I believe most of the Magistrate Judges have had situations where Defendants have died on release due to heroin or fentanyl overdose, so this is an area of heightened concern.

From Magistrate Judge Dancks:

  1. File speedy trial exclusion requests/stipulations at least three business days before the previous stipulation expires. Make sure the time calculations are accurate in the stipulation and the proposed order.
  2. CJA counsel should not ask a courtroom deputy or the judge for an appointment. Names come up on a rotating basis. If you are not in your office when the deputy calls to see about availability, the court may need to go to the next person on the list if time is of the essence.
  3. Don’t pull out your cell phone and start talking, texting, or checking email on it during a court proceeding. The only reasons your cell phone should come out is to review your calendar when the court is setting the next hearing date or perhaps you refer to it to provide a case citation.

From Magistrate Judge Baxter:

  1. Communicate with your clients. While some criminal defendants are unreasonably “needy,” periodic communication generally helps avoid requests for new counsel, promotes client trust, and facilitates a pre-trial disposition.
  2. Consult with the probation officer, before a detention hearing, about treatment and housing options for clients with substance abuse, mental health, or other issues. Our Probation Office has recently increased and improved the treatment and support options for our pre-trial defendants. Having a treatment and/or housing plan in place to present at a bail hearing may help your client avoid detention.
  3. Some of our CJA counsel have expressed frustration when District Judges object to the amount of their CJA vouchers for fees. There are ongoing discussions at the Administrative Office of Courts about creating a new system for review of CJA vouchers by an entity independent of federal judges. In the meantime, detailed billing entries and explanations of unusual aspects of the particular case or the representation (which can be added in the notes section in the E-Voucher system) may help the District Judges better understand the reasons for the fees requested. Our District currently has CJA voucher review committees in Syracuse and Albany, consisting of a Magistrate Judge, a representative of the Federal Public Defender, and several local CJA counsel, to which a District Judge may refer issues with a CJA voucher. In reviewing vouchers, the committees apply the standards of our local CJA plan that only “actual” and “reasonable” work performed and expenses may be claimed or compensated. The committees also evaluate whether the services rendered by appointed counsel are “commensurate with those rendered if counsel were privately employed by the person.”