Roundtable Discussion

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State/Federal Forums

Left to Right: Janet L. Heins, Heins Law Office LLC; John D. Finerty Jr., Michael Best & Friedrich LLP; Ann Althouse, UW Law School; Nora M. Platt, Quarles & Brady LLP; Paul J. Scoptur, Aiken & Scoptur SC; Hon. William C. Griesbach, U.S. District Court, Eastern District of Wisconsin

Part 1

Choosing to file a case in state or federal court is one of the first and most important decisions a litigator makes. The forum will determine the rules lawyers must follow and the way the case will be treated by the court. Bringing a case in the wrong forum can have serious repercussions for the lawyer and the client.

Wisconsin Law Journal editor Tony Anderson met with a panel of seasoned litigators, a federal judge and a UW Law professor to discuss what lawyers need to think about when deciding to handle a case in state or federal court. What follows is part one of their roundtable talk.

WISCONSIN LAW JOURNAL: What types of common jurisdictional mistakes do you see lawyers bring when they come with cases both in the state and federal court system?

Hon. William C. Griesbach The Hon. William C. Griesbach has served as a U.S. District Court judge since his appointment in 2002. Prior to that, he spent seven years on the Brown County Circuit Court bench. A 1979 Marquette University Law School graduate, he also clerked for state Supreme Court Chief Justice Bruce Beilfuss, served as a staff attorney for the 7th Circuit, practiced civil litigation and served as an assistant district attorney.

HON. WILLIAM C. GRIESBACH: I actually don’t see that many mistakes. But the common jurisdictional mistake you see from lawyers for cases starting in federal court … is failing to understand or to check and make sure that there’s complete diversity of citizenship. That’s especially true when you get a partnership or an LLC or something where it takes more than just a superficial look at the complaint to determine whether there’s complete diversity.

That’s the typical case where someone might start a case in federal court when it does not belong there. The consequences can be dreadful. We’ve all read those decisions from Judge (Frank) Easterbrook where, after going through several years of litigation and resulting in trial, they’re on appeal and suddenly one of the court of appeals judges has discovered that there is no jurisdiction. The recent practice is to sanction the lawyers for failing to discover it earlier. …

On the other side, the kinds of cases that I see people bring in state court that end up in federal court … are ERISA cases. Something that came as a surprise to me when I switched from the state to … the federal bench was the extent to which ERISA has federalized insurance claims. Simple health insurance benefit claims have now become federal cases.

I’ve even seen cases removed from small claims courts in Marinette County where a pro se litigant sues his insurance carrier after they fail to pay the full amount due on an emergency bill. … Even attorneys are making these errors where they believe they have a strong bad faith claim for failing to pay benefits, and suddenly they’re removed to federal court where they see a motion to dismiss not only their bad faith claim, but the breach of contract claim leaving them with nothing.

John D. Finerty Jr. John D. Finerty Jr. is a trial lawyer and partner in the Litigation Practice Group at Michael Best & Friedrich LLP in Milwaukee. His areas of experience include complex litigation involving corporate, environmental, tax, labor and employment matters. He graduated from Marquette University Law School in 1992 and received his M.A. in Economics from UWM in 1999.

JOHN D. FINERTY JR.: I guess I don’t have the same take on it. We’ve always viewed most ERISA cases or employee-benefit-type cases, including severance cases … as automatically removable to federal court. A lot of general practitioners and, indeed, a lot of state court judges don’t have the same type of familiarity with employee benefit law that some of the defense side who practice it day in and day out do. So when they see the word “ERISA,” it always either comes as a shock that their case might be dismissed or that it’s going to federal court where they’re going to face summary judgment.

To go to the direct question of what types of mistakes I see … one of the things that I come across occasionally is, at least on the defense side, some of my colleagues trying to shoehorn a run-of-the-mill accident or injury or employment case into diversity jurisdiction by coming up with all different ways that they can meet the jurisdictional threshold of $75,000.

For example, they will say an employment at-will arrangement that paid $35,000 a year, if there really was a breach of some duty or there was a violation of the law, there would be attorneys’ fees associated with it that you add on and punitive damages and a long list of other costs and fees that they try to throw together to get to $75,000. Sometimes it works. Sometimes it doesn’t.

But when you get remanded back down, then you usually get hit back over the head with that when you’re in state court. Because the plaintiff’s lawyer will come back with your removal papers saying, we’ve got a pretty good case here. When I thought we had a $30,000 employment case, opposing counsel seems to think it’s somewhere over $75,000.

Janet L. Heins Janet L. Heins has a solo practice in Mequon representing plaintiffs in employment matters. She graduated from the University of Wisconsin Law School in 1991. Heins served on the board of directors for the Association for Women Lawyers and a co-chair of the Wisconsin Employment Lawyers Association.

PAUL J. SCOPTUR: I think most plaintiffs’ lawyers try to avoid federal court. … There are a lot of evidentiary pitfalls, procedural pitfalls. From a plaintiff’s standpoint, we try to find ways not to be in federal court.

The common mistake that’s made is that plaintiffs will have diversity and not really realize they have diversity. For example, Wal-Mart will remove every case across the country from state court to federal court. And people will just sue Wal-Mart and not think about the removal issue.

I know plaintiffs look really hard to get one local defendant in the case, so that you can’t have diversity. So … that’s probably a mistake that is most common from a plaintiff’s perspective.

NORA M. PLATT: I’ve got experience both on the plaintiffs’ side doing copyright infringement work and on the defense side doing personal injury and toxic tort litigation defense. So I sort of see it from both sides. One mistake that I have seen involves a case with multiple defendants. There was a practice … several years ago where … people used to be much more free with their allegation that all of the defendants consented to the removal. There has been a development in case law over the years that says you can’t just allege it. You must have the consent of each defendant.

In a case where you’ve just been served, you have no idea who the defendants’ counsel are and your 30 days might be running pretty rapidly, that can be a real pitfall for people. … It’s an important one to keep in mind.

JANET L. HEINS: Maybe I’m an anomaly at this table. I’m a plaintiffs’ lawyer doing employment law, and I do spend most of my time in federal court. I bring most of my cases in federal court. It’s been my experience that in a lot of cases that’s the best forum for my clients.

In terms of mistakes, I haven’t really seen much of that in my practice. But it has been a strategic decision often for me whether to bring a claim in state or federal court. The one case that I recently had that I most agonized about I brought in state court, and then the defense removed it anyway because we had complete diversity.

Paul J. Scoptur Paul J. Scoptur, of Aiken & Scoptur SC in Milwaukee, has been a civil trial lawyer representing plaintiffs since graduating from Marquette University Law School in 1978. Scoptur is a long-time Wisconsin Academy of Trial Lawyers board member. He serves as an adjunct professor of law at Marquette University law School and has taught at the University of Wisconsin Law School.

ANN ALTHOUSE: I’m a law professor, so I don’t have preferences one way or the other about where I would file cases. … I suppose one of the things I try to teach the students about federal and state courts is to think hard about whether you want to be in state or federal court, to analyze it from the perspective of what’s better for you in this particular case and really think hard about all the factors. Then if there’s something you can do to get your preference, structuring the case, who the parties are, how much damages you’re alleging and so forth … you know how to use that as a means to an end.

WLJ: Paul, what types of factors do you look at when considering state or federal forums? You said you try to stay in state court whenever possible. Are there times when you want to end up in federal court?

SCOPTUR: Very rarely. To be honest with you … it goes down from a lot of different things. Voir dire is very, very limited in federal court. Most judges don’t even allow voir dire. You have to submit written questions, and the judge will read the questions. I think voir dire is the most important part of the case. You can have the best case in the world, but if you have bad jurors, you’re probably not going to win the case.

In federal court you have a six-person jury. I prefer a 12-person jury. There are procedural things such as Daubert versus Frye. The Daubert rule in federal court is a really tough thing to get around sometimes as opposed to the Frye rule, which we have here in state court.

Presenting of experts — many judges in federal court will require you to have a written report from your expert, and the expert cannot vary from that report. You’re stuck with whatever that report is no matter what happens down through the course of the litigation. Depositions are another factor. Many federal judges won’t allow expert depositions without leave of the court. And they will limit the number of depositions and time of depositions.

So it’s all these procedural things that I think about as a personal injury trial lawyer. … I just think federal court tends to have many more restrictions on the way that we’re traditionally trained as lawyers to proceed and present a case.

Ann Althouse Ann Althouse is a professor at the University of Wisconsin Law School. She received her J.D. from New York University School of Law in 1981. Her academic interests include constitutional law, federalism, and the jurisdiction of courts. Prior to joining the UW Law School faculty, she clerked for a U.S. District Court judge and practiced litigation.

HEINS: I’d like to speak to that. In my practice in plaintiffs’ employment law, it’s been my experience that in the federal court they are much more rule-oriented and they stick very closely to the local rules and to the procedural rules. It is much more difficult for defense attorneys to use the rules to obstruct what I’m trying to do or to play games with the evidence and take procedural liberties with things like briefing schedules and depositions and discovery.

I find that, since I do know the rules inside and out, I can usually use them to my advantage to help give the best case for my client in federal court. Whereas, in the state court, where the rules are less strictly enforced and there’s much more leeway, I find that sometimes it’s more of a dogfight in the trenches.

FINERTY: For most employment cases, corporations want to be in federal court because there’s some perception of bias in state court. But if a case is going to trial, I’d rather be in state court. The state court rules and the judges there seem to give you much more latitude to talk to the jury.

When you have a case that needs explanation, you want to be able to introduce the company during voir dire. You want to be able to talk about the presumptions that will apply at trial. You want to be able to talk about innocent until proven guilty, and then explain the history of the company and how many jobs they bring to a county. A lot of those things don’t get introduced in federal court trials.

SCOPTUR: The other thing is the jury makeup. If you have a case in Milwaukee County, you’re going to have Milwaukee County jurors. … You know what kind of jurors you’re going to have, no matter which county you’re in. If you’re in federal court, you may have a farmer from Antigo, a car worker from Kenosha. You get a very diverse jury — which isn’t always bad.

But you don’t really know what makeup you’re going to get, and it’s a little harder to predict exactly what type of people you’re going to have on that jury. I like the predictability of state court a lot better. Maybe it’s different in the employment law field. I just feel more comfortable because I can predict a little bit better where that jury is going to be from and what type of jury it’s going to be.

ALTHOUSE: It’s interesting that you both talked about wanting to control things more. You (to Scoptur) feel you have more control because you understand the jury more and you know how to talk to them. And you feel (to Heins) you have more control in federal court. You feel you have more control in state court because you can work with the jury and influence them in a way that you understand. And you think you have more control in federal court because the federal judges are more sticklers for the rules and, since you understand the rules, you can keep the other side from abusing you or hurting your interests. So it’s interesting that you both had a sort of control concept, but it was a preference for different courts.

Nora M. Platt Nora M. Platt’s litigation practice at Quarles & Brady LLP includes defense of toxic tort, environmental, product liability and general commercial matters. Platt graduated magna cum laude from Marquette University Law School in 1992. She is a member of the ABA’s Litigation, Liability Litigation, and Tort and Insurance Practice sections.

HEINS: There’s another aspect of that. It’s been my experience that the federal judges that I’ve been in front of … are open to experimentation. I have been able to get the judge to essentially ask my voir dire questions during the judge-imposed voir dire by submitting a very lengthy questionnaire and asking that that be submitted to the jury. I had that denied, but then what the judge did was read my list of questions.

So, in essence, it went from being a partisan giving the questions to the jury, to the judge giving my voir dire and imparting another level of officiousness to it to the jury. Federal judges aren’t entirely rule-bound. They’re open to innovation. But I think they have a tighter control of the process as a whole, and I like that.

PLATT: I enjoy the control in federal court. My perspective is more in terms of having the experience of litigating in different jurisdictions around the country. So if I am practicing pro hac vice in state court in California, their procedural rules are quite different from Wisconsin’s procedural rules. Whereas, in federal court in California, it’s exactly the same as it is here. That is much more comfortable, and I feel more in control of the situation and not so dependent upon local counsel for advice about what is likely to happen in a given situation.

Going back to Paul’s comment with respect to the rules on the admissibility of expert testimony, I do a lot of work on toxic tort cases, cases where people claim to have been injured as a result of exposures to various workplace and industrial chemicals. If I have to explain to a jury the concepts of epidemiology and relative risk and statistical significance, that is going to be a darn hard sell. Those are difficult concepts for most people, lawyers included, to deal with.

But if I can take advantage of the Daubert rules that explain those very concepts and actually control what evidence can come in from an expert, I feel again like I’m much more in control of what may happen in the case. I would much rather make those explanations to a judge in a well-thought-out brief than I would in front of a jury in state court.

WLJ: Judge Griesbach, we’ve heard that judges in the federal system tend to be more in control, more rule-bound. Have you changed your style since you’ve moved from state to federal court?

GRIESBACH: I don’t know if I’ve changed my style, but I’m bound to follow different rules. … Not only do you have the Federal Rules of Civil Procedure, which are much more onerous, especially in terms of expert disclosure and some of the pretrial discovery matters, but we also have … local rules on top of that which can be quite onerous. …

There’s so
me play in them, and you can relieve attorneys of onerous burdens or defaults under local rules, especially where there’s no prejudice to the other party. I’m not averse to doing that. …

One thing that no one has mentioned and the major difference I see between federal and state systems is the manner in which summary judgment is administered in the federal system. That’s the most significant difference that I noticed when I switched from the state to the federal court. I can well understand why a plaintiff would want to stay in state court simply to avoid the summary judgment procedures in federal court. It’s not as difficult or onerous on a defendant because the plaintiff carries the burden of proof.

Under the Celotex (Corp. v. Catrett) trilogy of cases now, as the Seventh Circuit likes to call it, it is put-up-or-shut-up time for the plaintiff. You end up having to essentially lay out your case and hope that it’s strong enough to convince a judge your case should go to the jury. You see cases lost on summary judgment that at least you would get a chance to go to the jury with in state court and settle the case if it’s weak.

In federal court, it seems summary judgment is a different vehicle. The manner in which it operates to place upon the plaintiff the burden of showing that there is sufficient evidence that he could prevail on an essential element of the claim. It just turns it into much more of a motion practice, much more of a writing court.

I’m not surprised that attorneys that are proficient at writing and expressing themselves in words are much happier in federal court than those attorneys perhaps that are more comfortable arguing their case and want to get to that jury because they are successful in persuading juries.

SCOPTUR: Can I just ask the judge a question? I study voir dire a lot, and I’m real interested in it. How many people have you ever seen get excused for cause in a civil case in judge-done voir dire? I would think zero, other than if they say they’re mass murderers or something like that.

GRIESBACH: I think that you do have them. There are people that will say, “All plaintiffs get too much,” or there are real tort reform people. Perhaps they’ve been sued or something like that, where they’ll simply say, “I can’t be fair,” or “I don’t believe in this.” Now, sometimes they have ulterior reasons for expressing those views. They don’t want to be on the jury. … But it’s rarer that you see civil jurors disqualified for cause than in criminal cases.

SCOPTUR: I’d say the one advantage of state court is the challenge for cause. If you do a good voir dire, you can get eight, nine, ten people off for cause. Whereas, in federal court it’s very rare to have a juror excused for cause when the judge conducts the voir dire.

HEINS: I’ve gotten them excused for cause. It depends on getting the judge to see that you need as much voir dire as possible. I’ve been able to successfully persuade the judge to adopt my lists of extensive four or five single-spaced pages of questions to be conducted on voir dire.

If you impress on the judge how important that is and how important these particular questions are to the question of juror bias, most federal judges are receptive to that. You have to make a higher threshold showing, and you have to be a little more persuasive than you do in state court because you’re asking the judge to ask them instead of just for the opportunity to do it yourself.

GRIESBACH: I take your point to be that, by allowing you to conduct your voir dire, you have the follow-up questions that are going to elicit those additional answers that are going to allow you to establish cause. I think you’re right. I think you’re much more likely to be able to establish cause for excusing jurors in state court where the attorneys are conducting the voir dire.

PLATT: If the purpose of voir dire is to really start understanding who these jurors are, to have someone who has a clear bias asking the questions often seems to me to turn into more argument from the attorney’s end. In other words, the persuasion starts during voir dire. I think good lawyers on both sides are going to use that opportunity to start persuading the jurors, in subtle ways. Questions that are asked of jurors can be extremely loaded.

If one believes that the purpose of voir dire is to really understand where the jurors stand on various issues, then getting the lawyers in the way of that process is not necessarily the most effective way to go. So I guess it depends upon whether you’re in the lawyer’s corner or in the corner of truth and justice.

SCOPTUR: The lawyer’s corner.

PLATT: Sometimes those are mutually exclusive. I think you get a much cleaner process when the judge is conducting the voir dire because the lawyers can sit back and try to study who these jurors are and what are the answers that they’re giving to the questions instead of having all of the static that’s coming from the attorneys getting in the way.

ALTHOUSE: We’ve been talking a lot about the difference between state and federal court and making big generalizations. … Doesn’t a lot depend on which judge you get?

HEINS: Overall the generalizations we’ve been talking about are true. I have had some particularly innovative federal judges, and I’ve had some particularly non-innovative state judges. But I think for the most part it falls into the range that we’ve been talking about.

SCOPTUR: I think that’s probably true. Like any system, you’ve got differences in the system, both the federal judges and the state judges. But I think the federal judges talk and the state judges talk. I think they sort of get their own sphere here in the state world and a different sphere in the federal world. And they’re pretty much the same.

ALTHOUSE: So they have their culture that they’ve created amongst themselves. And it’s strong enough that you can make these big generalizations and go with them?

GRIESBACH: Well, they’re operating under different rules. I think we’ve been talking about the impact &
#151; those differences are the result of the difference in rules.

The summary judgment rules in federal and state court, although they literally read very similar, if you look at the case law that’s where you get the wide divergence in the manner in which they operate.

I was interested to hear you say plaintiffs try to avoid federal court. Because I think there was a time when plaintiffs really flocked to federal court, and that’s where they wanted to be. Part of the reason was they thought the federal juries were more generous perhaps. They also thought that federal judges were smarter or the law was more favorable.

In terms of the quality of the judges, I think that in different parts of the country it may be different. But I think in this state the state judges are of very high caliber.

Wisconsin has one of the best judicial education programs. For the most part, it’s going to be a decision based on — not the quality of the judge, but the rules and the procedural advantages of one court versus the other.

HEINS: I think it may also be a question of resources too. It’s been my experience in the state courts that the court system, at least here in Milwaukee County, is so overloaded that judges are much more loathe to publish lengthy opinions on summary judgment, or to spend a lot of time allowing you to argue motions. Whereas, it seems that there’s more time available and judges have more time to write longer opinions and more fully analyze the facts and the law in federal court.

PLATT: They also have law clerks, which I think helps considerably. That’s not always the case in state court.

FINERTY: Let me take a moment to defend the state process. When it comes to summary judgment, the defense has a little bit more control over getting that summary judgment issue heard, getting it before the judge, and maybe even getting the case dismissed.

Whereas, in federal court, rarely do we have oral arguments. You can’t simply call up the judge’s clerk and say, “I’d like to schedule a summary judgment hearing for 30 days out.” Sometimes in state court, if you can get in front of a judge early, you have affidavits, your case is fairly one-sided, you may be able to have that case dismissed on summary judgment within a couple of months.

My experience has been in federal court there’s a tendency to conduct the scheduling conference, to go through the various deadlines in the scheduling order, and then wait until it looks like the case is coming up for trial before it gets on the judge’s radar screen and gets decided. So the time frame can work in the defendant’s favor in state court as well.

GRIESBACH: I think that’s a very good point. … Even if the case is going to be one that’s appropriate for summary judgment — and it may be appropriate early on — it seems that the scheduling orders and the general practice is that you go through the entire discovery process before you get to something that may be able to knock you out of here and save everybody time, money, and expense. That’s the kind of case where I think an attorney ought to try to make that argument to the court early on to give it the idea that this case can be disposed of on this narrow issue one way or the other.

But it does seem that the procedural rules, the local rules, and the manner in which cases are scheduled have a formality and a procedural awkwardness that isn’t suitable in all cases. I do see where it becomes a waste. Summary judgment can become as expensive as trial in the manner in which it’s conducted in federal court.