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| Tips for Federal Court III On two previous occasions the authors have set forth in this magazine lists of differences between state court and federal court practice in Minnesota. (See "Tips for Litigating in Federal Court", Bench & Bar March 1997 and "More Tips for Litigating in Federal Court", Bench & Bar May 2000.) In each previous article, the number of tips offered has been ten. As we have noted in previous articles, the state rules of civil procedure in Minnesota are modeled on the federal rules, but there are differences, both minor and major. And, when the federal rules are amended, as they recently have been, effective December 1, 2003 (See # 22 below), even if Minnesota mimics the change there will necessarily be a lag time in which the rules differ. Here then are ten all-new tips to keep in mind for those litigating in both the federal and state systems: 21. Declaration Explanation. A useful time-saver in federal court that does not exist in Minnesota state court is the use of the unsworn declaration pursuant to 28 U.S.C. §1746. The beauty of a declaration is that it can be used in place of an affidavit but without the need for visiting a notary public, which is especially helpful for out-of-town witnesses or clients. 22. Class Concerns. Effective December 1, 2003, Rule 23 of the Federal Rules of Civil Procedure, which governs class actions, was amended significantly. Among other things, the new Rule 23 requires a second opt-out opportunity for members of a class that was certified before the settlement was reached. The new rule also changes the requirement of making the class certification motion "as soon as practicable" to "at an early practicable time." Other changes apply to appointment of class counsel, attorney's fees, and conditional certifications. 23. Deposition Limitation. One of the changes to the Federal Rules in the last round of modifications was a provision limiting depositions to a maximum of seven hours each. See Rule 30(d)(2). This rule has not yet been adopted by the state of Minnesota, although many weary deponents wish it would be. 24. Daubert Doubts. Minnesota is still one of a minority of states that has not adopted the U.S. Supreme Court's test for scientific evidence as set forth in the Daubert decision, which applies in all federal courts including the District of Minnesota, and instead maintains the old Frye-Mack standard. In Goeb v. Tharaldson, 614 N.W.2d 800, 811-14 (Minn. 2000), the Minnesota Supreme Court rejected the Daubert test based on a concern about placing in the trial courts' hands scientific issues that are best left to scientists and because of a concern about the potential for nonconformity under Daubert. 25. Electronic Filing. In 2004, the District of Minnesota will embark on a new system of electronic filing of all pleadings with the court called cm/ecf or Case Management/Electronic Case Files. Similar to what the bankruptcy court here has had in place for years, this new system will mark a major departure from paper-based practice as it has been in federal court previously and will continue to be in state court for the indefinite future. See www.mnd.uscourts.gov for more information on the project schedule. 26. Appealing Font Sizes and En Banc Review. Both the federal appellate courts and the Minnesota Court of Appeals and Supreme Court require larger-than-normal type faces for their appellate briefs. The federal appellate courts like their type even larger (14 pt.) than the state appellate courts (13 pt.). Fed.R.App.P. 32(a)(5)(A); Minn.R.Civ.P.132(1). Speaking of appellate practice, en banc review of a decision under Rule 35 of the federal Rules of Appellate Procedure continues to be a viable procedural alternative when appealing from a decision by a three-judge panel. This tactic was recently seen in California when the 9th Circuit reversed a decision by three of its own members to allow the recall election to proceed. In the state realm, of course, a decision from the Court of Appeals can only be reviewed directly by the Minnesota Supreme Court. 27. Reply Briefs. It is surprising when you think about it, but in the District of Minnesota there is no right to a reply brief for a nondispositive motion. See Local Rule 7.1(a). In state court, on the other hand, there is a right to a reply brief, even for nondispositive motions. See Rule 115.04(c) of the General Rules of Practice. This distinction can have a significant impact on how the opening brief is structured. 28. Summary Judgment Requirements. The many requirements of Rule 115 of the General Rules of Practice in state court, which include a statement of the undisputed facts, a statement of the issues presented, and a list of the documents relied upon do not apply in federal practice. 29. Subpoenaing Documents. According to federal Rule 45(c)(2)(A), a party can subpoena documents without requiring the person producing the documents to actually be present, whereas under the state discovery rules, only a person can be subpoenaed. 30. Out-of-State Evidence. In state court, the process of serving or issuing a subpoena in a different state may involve burdensome "letters rogatory" or commissions to issue subpoenas out-of-state whereby the state asks another state to issue a subpoena compelling evidence or testimony. In federal court, on the other hand, attorneys, as officers of the court, may issue subpoenas compelling attendance at depositions anywhere in the United States. For those who missed the earlier articles, here are Tips 1-20 for practicing in federal court:
V. JOHN ELLA is a shareholder at Mansfield Tanick & Cohen in Minneapolis. A 1994 graduate of the University of Minnesota Law School, he clerked for judges in both the Minnesota and federal courts. JOHN WACKMAN is a partner at Rider, Bennett in Minneapolis. He clerked for Judge Ann Montgomery in both the Minnesota and federal courts following his graduation from the University of Minnesota Law School in 1994. |
