Trial Practice Today In Federal Court: Northern District Of Illinois

Monday, June 1, 2009 - 00:00

The Editor interviews Hon. James B. Zagel, U.S. District Judge, Northern District of Illinois.

Editor: Have you observed any significant changes or trends in your docket in terms of volume, types of cases, types of motions submitted, etc., and would you attribute those changes or trends to the current economic situation?

Zagel: If you ask a judge about dockets in terms of the effect of the economy, the first thing to understand is that judicial dockets are like what economists would call a "lagging indicator." You won't see immediate changes in docket volume. However, you will see two things. The first thing you will see is obviously an increase in bankruptcy filings. In our court it was up something like 30 percent last year, although interestingly enough we're still nowhere near the highest number of filings, which I believe were in 2005. Remember, these statistics are collected fairly late; much like the growth of the economy, you have to keep adjusting the figures as new data comes in. The other thing you tend to see is that the number of business filings in bankruptcy court - that is, businesses going into bankruptcy - starts climbing, and does so at a rate higher than the rate of non-business filings. We have seen this in the Northern District of Illinois.

And, while you might expect to see fewer civil cases filed that do not involve bankruptcy because people cannot afford or don't want to pay what they used to for lawyers, that's not the way it shows up. The number of civil filings usually stays the same or sometimes actually rises in times of economic stress.

Editor: Do you find a general willingness by your litigants to move cases along?

Zagel: I have certainly noticed that the cases move much, much more slowly. Someone files a lawsuit because they're concerned that the statute of limitations will expire and preclude them from filing the lawsuit. So, they file the lawsuit but then tell the lawyer, "Don't do anything and spend as little money as you can." Frequently, if it's a dispute between two parties that do a lot of business with each other, both sides might agree that they're not going to do anything until times get better because neither one wants to spend the money on the lawyers. I have also heard from many lawyers, and obviously this is not as reliable as statistics, that that's the instruction they're getting from their clients is - "Don't push it, just let it go and we'll pick it up later." And, if you have a judge who is willing to allow them to do that, then those cases will drag on for awhile.

This means that a lot depends on what kind of judge you draw. Some judges regard the cases as basically their property that they want handled in a certain way and at a certain pace. In many cases they won't let the litigants just sit there for awhile until better times come along. Then, on the other hand, there are other judges who think that they don't own the cases, that the cases belong to the lawyers and the clients, so if the lawyers and the clients don't want to proceed, then they'll just let them sit there. Basically, if you were doing a statistical study, you would find out which judges are willing to allow the litigants to take their time and look at their statistics in terms of time from filing to time of disposition. Those statistics are unavailable, so all we have is word of mouth.

Editor: Generally, though, are you finding your litigants pursuing stay requests and prolonging pleading and discovery disputes?

Zagel: In my court, there's quite clearly a desire to pursue stay requests and to prolong pleading and discovery. It's the kind of thing where the lawyers stand up in front of you and say, "Judge, you know we're busy here, we're doing a lot of work," and so on and so forth, "and we'd like to have a six-month status." That's a clue, because usually people don't want a six-month status - they want a six-week status. I have noticed in my court requests for long or longer statuses and people not pushing each other on discovery. One side will say, "Well, it'll take me a couple of months to get the documents together," and the other lawyer, instead of expressing concern, says "That's fine, your Honor."

Editor: Have you noticed any trending toward - or away from - alternative dispute resolution in cases before your court?

Zagel: I am not seeing any greater tendency towards alternative dispute resolution, because alternative dispute resolution is actually built on the premise that you move more quickly, that it's simpler, that you get to home plate one way or the other. That's the general impression that most lawyers have. The pace of ADR is just usually faster than the court system and, interestingly enough, I haven't noticed any increased pressure to put matters into ADR and I have not noticed any falloff. I think it's just something that hasn't hit the radar yet.

Editor: Have you perceived any other changes or trends?

Zagel: I also have noticed that there is more pro se defense in civil cases, even in cases where businesses that can't really afford a lawyer are getting sued. If you're a corporation, that's a disaster because the corporation must be represented by a lawyer; the president or CEO of the corporation cannot come in and represent the corporation unless, of course, he or she happens to be a lawyer admitted to the bar.

Basically, you won't know in any clear or provable sense what effect this recession is having until probably a couple of years after it is over.

Editor: Would you please share your thoughts regarding the advent of electronically stored information and the role of e-discovery in litigation?

Zagel: The main problem with e-discovery is volume - there's just so much you want to go through, and this massively increases the expense of litigation; although I do foresee a day where this will not be as big a problem as it is now. When these systems were designed, they were designed to collect all of the data together under the assumption that, if you need to recover something, all you have to do is use search terms. But people's use of language is not all that consistent, so you wind up with a dozen search terms if you're looking for documents pertaining to x, y and z, and you probably throw in another 10 or 15 letters of the alphabet just to make sure you don't miss anything, and now you produce a gazillion documents that you have to go through to see if any of them are privileged or relevant.

What I think will happen in the future is that you'll get the rough equivalent in electronic data that you have now in paper data, which is that people will start putting them in file folders. One of the secrets of document discovery was not that in all cases it saved you from examining millions of documents but that people began storing things in certain files, so that you'll get discovery in which people start producing folders. This is particularly true, for example, if you've got a series of contract disputes over a number of years between, say, a provider of raw materials and the person who uses those materials. You'll start seeing electronic storage in one place where they store all their data with respect to this particular supplier, so that if some dispute arises, leaving aside legal disputes, they can gain more ready access to the available data.

Right now we're dealing with a situation in which courts, and by and large most people, keep their electronic data as one huge mass that no one has ever had to categorize because they think search terms will do the trick. Well, search terms will pretty much do the trick but at an enormous cost, so I anticipate that some of those problems will be solved and that the discovery will become simpler and easier. There's no getting around e-discovery because people are keeping their records electronically.

Editor: What has been your practice regarding the use of live cameras or media in your courtroom?

Zagel: Well, it's the uniform practice - we are simply not permitted by federal rules to allow live cameras in the courtroom. In fact, we don't permit any photography in the courtroom. One of the major problems, of course, is that the cell phone now takes pictures. During some trials in this building we've had people, usually ignorant of the rule, take pictures; when it's discovered, usually the marshall takes the cell phone into custody. Someday, I suppose, we'll have someone who's not doing it inadvertently, in which case the marshall is going to take not only the cell phone but its user into custody. That has not yet happened, and if it does, I very much doubt that it'll be a member of the accredited press. By and large, in every case where we've seen this occur it was some ordinary citizen that wanted to take a photograph of this fabulous trial and take it home to show to people or maybe put it on YouTube. Until the Supreme Court of the United States changes its mind, a district judge cannot permit it. I believe there has been some talk about experimenting with live coverage in other districts but those decisions are well above my pay grade.

Editor: Does the Northern District of Illinois present any unique challenges or situations for litigants, counsel or the bench?

Zagel: I don't think so. Chicago is pretty typical of a big city in this sense. I think the question might be more appropriate if you asked somebody about litigating some big federal case in a smaller venue, where it's harder to get people there and services lawyers are accustomed to may not all be available. I actually think that litigating in a city like Chicago presents fewer challenges than you would find in the vast majority of districts. If, for example, something happens in the middle of the trial and you need an expert to explain it, you'll quickly find somebody who lives here. You do have many large cases and many complex cases, but I don't think any judge on this court regards that as unique - in fact, that's one of the reasons the job here is very attractive.