Exhibit A on how the federal bench has its act together
Yesterday I mentioned concerns about growing caseloads in the federal courts not being accompanied by adequate funding and commented on the superiority of federal court compared to “judicial hellhole”state courts.
In Legal Times, Vanessa Blum writes: “Drowning in Paper; With fall trial date set, case involves 30 firms, millions of documents” She profiles a mind-bogglingly (is that a word?) complex tobacco case in federal court and the federal District Court Judge doing a masterful job of keeping it on track.
By any measurement, the Justice Department’s suit against the tobacco industry is a mammoth piece of litigation.
With a bench trial scheduled to begin in the case Sept. 13 before Judge Gladys Kessler of the U.S. District Court for the District of Columbia, the challenges posed by the immense size and scope of the case are becoming increasingly evident.
For example, government attorneys recently stated their intention to submit 72,525 evidentiary exhibits totaling more than a million pages.
Tobacco industry lawyers . . . were quick to point out the impact such a massive filing would have on court proceedings. . . .
In a Feb. 26 pleading, the government defended its lengthy list: “The exhibits designated by the United States are a reflection of the magnitude of the Defendants’ conduct, the complexity of the case, and the number of contested facts.”
On March 8, Kessler ordered the government to come back with a trimmed and prioritized exhibit list by May 1. . . .
According to several lawyers involved in the tobacco litigation, Kessler has taken a hands-on approach to managing the unwieldy case, forcing lawyers to stay on track throughout the lengthy discovery phase.
“The judge got involved early on and entered a number of case management orders that set out a schedule for what was going to happen and in what period of time,” says William Ohlemeyer, vice president and associate general counsel of Altria Group Inc., formerly known as Philip Morris Cos. Inc. “This is a case that could have gotten bogged down pretty quickly. Instead, it has proceeded on a very strict schedule that has been designed to make the parties move forward.”
At least in my neck of the woods, federal courts are way ahead of state courts in terms of using scheduling orders to keep cases on track.
Recent rulings and a rigorous pretrial calendar suggest Kessler intends to demand the same intense focus during the trial, which may last more than six months.
The first of three scheduled pretrial conferences began this week.
Ditto for pretrial conferences.
Kessler has ordered both sides to file trial outlines and proposed findings of fact before the start of trial and will likely set time limits for each side to present its case in court. She has also provided that witnesses’ direct testimony be presented in a written question-and-answer format, rather than live. . . .
The case going to trial — though vast — is substantially narrower than the complaint filed by the DOJ team in September 1999. In June 2000, Kessler dismissed two of the government’s claims that had sought to recover Medicare and Medicaid costs related to smoking. The government’s sole remaining claim alleges that the tobacco industry engaged in an illegal conspiracy to defraud the American public in violation of the Racketeer-Influenced and Corrupt Organizations Act, or RICO, and seeks $289 billion [yep, that's a "B"] in ill-gotten profits.
The docket in the tobacco case, still six months from trial, already contains more than 3,000 filings, including more than 500 court orders from Kessler. Special Master Richard Levie, a retired D.C. Superior Court judge, has issued another 150 reports and recommendations on case management issues and discovery disputes since his appointment in December 2000. Overall, 301 depositions totaling more than 2,000 hours have been taken by both sides. . . . More than 45 expert witnesses are expected to testify at trial, and conservative estimates place the total number of witnesses to be called to testify somewhere above 200.
Kessler seems determined to keep the immense case moving toward trial.
“The public interest demands that cases of such significance not drag on for years and years and that they come to closure in a time-honored fashion: a public trial where the positions of both sides can be tested in the glare of cross-examination and public scrutiny,” Kessler wrote in a 2002 scheduling order. “It is essential that our civil justice system demonstrate that it has the capacity to efficiently handle a case of this magnitude by narrowing issues, reining in over-zealous lawyers, and directing counsel to focus their efforts on the central issues of the case rather than peripheral minutiae.”
Amen to that. Or, as they say in federal court, “God Bless the United States and this Honorable Court.” I’m not sure what I think about the merits of this litigation or the government resources being spent on it, but I sure like what I hear about this judge.
