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Continuing Legal Education at the Bar Association of San Francisco: Committees

Advocating Before the Federal Magistrate Judges


On October 6, 2009, BASF’s Litigation Section presented a panel discussion on "Advocating Before the Federal Magistrate Judges.”  Steve Schirle, PG&E Law Department, moderated a panel of four federal magistrate judges from the Northern District of California:  Magistrate Judges James Larson, Elizabeth LaPorte, Joseph Spero, and Bernard Zimmerman. More than 30 practitioners attended the program held in Magistrate Judge Joseph Spero’s Courtroom. 

Advantages of Consenting to a Magistrate Judge

The magistrate judges in the Northern District receive 30% of the new civil case filings.  Approximately 6,000 civil cases are filed each year and about 2,000 are assigned for all purposes to magistrate judges.  Both parties must consent to the magistrate judge, and the case is then handled as if it had been assigned to an Article III judge.  One distinction between an Article III judge and a magistrate judge is that parties can count on a prompt and certain trial date with the magistrate judge, and can expect the final disposition of the case will occur within 12 to 16 months (through trial) after the case is filed.  Unlike Article III judges, magistrate judges are not assigned criminal cases and thus do not have civil trials bumped by criminal cases.  In addition, magistrate judges have the resources to prepare for your case as all magistrate judges have at least one law clerk and some have two. 

Case Management and Pre-trial Pointers

The magistrate judges offered many pre-trial pointers.  Be judicious with motions, especially 12b(6) motions that may only serve to educate opposing counsel on defective pleadings that otherwise would be vulnerable to a dispositive motion for summary judgment or summary adjudication later in the proceedings.  Be proactive; utilize the case management conference to shape the case – raise potential issues that are likely to come up and get guidance from the court.  Come to court for the CMC, rather than appear by phone, so you can observe how issues are played out, rather than just hearing the words.  Always consult the local rules and be aware that certain magistrate judges will not allow local counsel to appear by telephone with very limited exceptions.  Each step of the way ask yourself:  what is the most efficient way to do this?


The magistrate judges discussed discovery.  They noted that Rule 26 of the F.R.Civ.Pro. is not an entitlement to discovery.  The relevant question is not whether the request is reasonably calculated to lead to admissible evidence, but whether the request is reasonably necessary and passes the unwritten rule of proportionality – is the discovery request appropriate in light of the claims and defenses.  See, also, Fed. R. Civ. Proc. 26(b)(2)(C) (does the burden or expense of the discovery outweigh its likely benefit?).  Requests for discovery should be simple and short, rather than broad omnibus requests which are generally disfavored.   Avoid filing discovery motions over issues that counsel should be able to agree upon without court intervention, such as the location of a deposition.  Lawyers should work hard to resolve discovery disputes in the meet and confer process; otherwise, they risk having decisions made by the person who knows the least about the case (i.e., the discovery judge) and who could be more inclined to use a meat-ax approach rather than a scalpel.  As with all motions, keep in mind that your most important coin with the court is your credibility, and the magistrate judges will recognize when preliminary motions are filed as a device to simply “test the judge” on how he or she is likely to rule on more critical or substantive motions filed later in the litigation.

Settlement Conferences

The magistrate judges also discussed settlement conferences.  Almost all cases settle and consequently the settlement conference is the biggest event in the case.  Treat it as such and make sure your preparation matches its importance.   Walk through the strategy considerations with your client before the settlement conference.   The settlement conference provides an opportunity for your client to have a voice in the process.  Consider the ADR options available, including Early Neutral Evaluation (ENE), private mediation, and court mediation.  Know your case, bring persuasive visuals, and write a succinct and persuasive brief that gets to the guts of the case.  Recognize that settlement advocacy differs from motion or trial strategy, so be realistic about your case and take into account its weaknesses.  Don’t leave “client control” issues to the court or expect the magistrate judge to persuade your client to make an offer; these are attorney issues, not the judge’s issues.   


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