May 25, 2019
Civil Litigation in Federal Court: Friend or Foe?
BY: Howard Bullock
Many practitioners in Virginia—whether they are new practitioners or seasoned attorneys—are daunted by the prospect of practicing in Federal Court in Virginia. However, there are also many advantages to having a case in Federal Court which are often overlooked by many attorneys.
Speed of Litigation
To many Virginia litigators the speed of litigation in Federal Court is one of the most daunting and most feared prospects of having a case in Federal Court, particularly in the Eastern District of Virginia’s famed “Rocket Docket.” However, there are many instances where this speed of resolution can be an asset to a particular case, rather than something to be feared. On average, civil cases in the Eastern District of Virginia are resolved in a mere 5.3 months.[i] Whereas, in State Court in Virginia civil cases can take a year or longer to be resolved.
One of the main advantages to the speed of litigation in Federal Court is that costs can be more easily controlled as they are pushed through to resolution much quicker than in State Court. This helps combat the frequent litigation strategy of one side attempting to outspend the other by dragging out litigation needlessly over the course of many months or even years. Another advantage that the speed of resolution of Federal Court provides is that clients are happier because they know that they will have a resolution to their dispute in a matter of months rather than years.
Alternative Dispute Resolution
It is a well-known fact among litigators that most cases tend to settle closer to trial than when the case is first filed. Therefore, because Virginia Federal Courts place such emphasis on setting a trial date early on in the case the parties can expect that an attempt at settlement of the case will be made much sooner than in State Court. Additionally, Federal Courts in Virginia have a robust alternative dispute resolution program that encourages parties to attempt resolution of disputes prior to trial.
While both the Eastern and the Western District Courts allow a number to different ADR options, the primary method that both Districts use in most cases is the Judicial Settlement Conference. Judicial Settlement Conferences are usually handled by a United States Magistrate Judge and the Court can issue an order directing the parties and their counsel to appear before the Magistrate Judge assigned to the case.
For both Districts, ADR is governed by the local rules for each Court.[ii] The local rules of the Eastern District of Virginia also contain a provision in which the district judge or magistrate judge can order that counsel and/or a party representative with full settlement authority attend a settlement conference.[iii] This provision is a powerful tool that the Court can use to bring the parties together and attempt to achieve a settlement in good faith, prior to litigation.
The use of pretrial settlement conferences and ADR proceedings in Virginia Federal Court is much more prevalent than in State Court in Virginia, and Federal Judges have more ways to bring parties together to discuss settlement in good faith than Virginia State Court judges. Therefore, Virginia Federal Court, with its robust ADR programs, can be an excellent venue when a particular case is one that may settle prior to trial.
Discovery
Discovery differs significantly between the Western and Eastern District Courts and the intricacies of each District’s procedures is beyond the scope of this article. However, in general, Virginia Federal Court discovery is focused on involvement of the Judges in the early stages of each case. In both the Eastern and Western Districts, Judges issue an initial scheduling order which sets the litigation in motion and requires the parties to confer pursuant to Fed. R. Civ. P. 26(f) to develop a discovery plan. Each Court has its own local rules and procedures that establishes the various deadlines and procedures for each particular Court.
While the prospect of learning the rules and nuances of each District may appear daunting to new or even experienced litigators, there are many valuable sources of information that can help with this task. The local rules of both the Eastern District and the Western District are both available online on the individual District Court’s websites. Additionally, the Courts and clerk’s offices have uploaded standing orders and other documents to the individual District Court websites to assist attorneys with understanding the specific practices for each District. The Federal Rules of Civil Procedure also provide a valuable resource to practitioners new to Federal Court. In general, the discovery process in Virginia Federal Court encourages the parties to conduct discovery in an efficient manner, emphasizing tight deadlines and the avoidance of frivolous discovery disputes. This has the effect of somewhat limiting the expense of time and money that can occur when a case is bogged down in the discovery phase and can help keep the case moving towards resolution, whether that resolution is through trial or settlement.
Conclusion
Practicing in Federal Court in Virginia contains its own unique challenges that vary depending on the District a particular case is in. However, having a case in Federal Court in Virginia can offer significant advantages in terms of speed of resolution, a robust alternative dispute resolution program, and a discovery process that encourages an efficient and streamlined exchange of discovery.
[i] “U.S. District Courts—Median Time From Filing to Disposition of Civil Cases, by Action Taken—During the 12-Month Periods Ending September 30, 2017 and 2018”. Judicial Business of the U.S. Courts, 2018. U.S. Courts. Retrieved April 29, 2019.
[ii] See W.D. Va. Civ. R. 83 and E.D. Va. Civ. R. 83.6
[iii] E.D. Va. Civ. R. 83.6(G)