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When to make a federal case out of it

Author / Coordinator: Alice Sherren Brommer
Minnesota Lawyer
December 1999

In a case that can be filed in either federal or state court, which forum should you choose?

With federal filings in Minnesota down 29 percent in the last year, a number of local practitioners said that they would opt to bring their case in the U.S. District Court. Among the reasons cited by practitioners for filing in the federal forum were tighter control over discovery, a speedier disposition and a more diverse jury pool.


Attorney Peter Riley, treasurer of the Minnesota Trial Lawyers Association, observed that federal courts may require more procedures, for example in admitting expert opinions into evidence under the Daubert decision, and that there is “no question” that there is more paperwork in federal court.

However, Riley added that although federal courts often require more procedure and paperwork early on, in the end, when you compare the stack of paperwork from a federal court case to that of a state court case, the piles will not be very different.

Minneapolis attorney Linda Holstein agreed, adding that a better way to compare federal courts and state courts would be to consider what happens as a result of the paperwork.

“If an attorney feels that [he or she] is filing more or lengthier briefs in federal court, it’s only because [federal] judges [are more likely to] rule on the motions,” said Holstein, adding that this can save time in the long run. Several attorneys mentioned that claims filed in federal court are more likely to be disposed of in summary judgment.

While it can be frustrating getting used to federal procedures, depending on your point of view, the more stringent procedures of the federal courts can be an asset.
Holstein stressed that she does not necessarily believe that the state court system is “looser” than that of the federal courts, but rather that the procedural requirements of the federal courts are very specific — and attorneys know that there is a price to pay for not adhering to them. According to Holstein, the federal courts’ more precisely defined deadlines are advantageous because each side knows what is expected. The penalties for failing to follow the timeline set up by the federal courts range from admonishment to sanctions, observed Holstein.

Riley explained that many attorneys prefer more rigorous discovery deadlines and interrogatory restrictions because the process tends to go more smoothly and quickly. No attorney appreciates being faced with requests for an inordinately large number of interrogatories or documents, opined Riley, adding that the federal courts prevent such occurrences because they generally control discovery more closely than the state courts.

However, the flip side is that lawyers feel their autonomy being taken away by federal court procedures, especially in the area of discovery, continued Riley. Where a state court judge may allow attorneys to request a very large number of interrogatories, a federal judge would be more inclined to inform attorneys that they get by on half that many, he explained.

Swift disposition

Some attorneys reason that because federal cases require more paperwork than state court cases, they are inherently more expensive. But attorneys who regularly practice before both courts say that federal cases are not always more expensive, and that in some instances filing in the federal court can save your client money.
Riley, who represents plaintiffs in personal injury, medical malpractice, and products liability cases, commented that expense is not usually an issue in deciding where to file. An attorney must work the case the same way whether the case is heard in state or federal court, he said.

But according to Minneapolis attorney Patricia Bloodgood, president of Minnesota’s Federal Bar Association, swift dispositions can mean lessened costs.
Bloodgood, who represents plaintiffs in class action suits, said that the judicial wheels spin more rapidly in federal court — which can mean less expense.
Of course it depends on the type of case. Complex cases will take more time regardless of where you file.

In 1998, the median time from filing to disposition of civil cases in Minnesota’s federal district courts was nine months. Contract cases took an average of 6 1/2 months from filing to disposition and personal injury cases usually lasted 8 1/2 months. The average time from filing to disposition for employment discrimination claims was 13 months.

During that same period, the state courts in Minnesota’s 2nd Judicial District met the standards set by the state. The median time from filing to disposition of civil state court cases was a year. An employment action filed in the 4th Judicial District in 1998 would have been disposed of in 18.9 months, a personal injury claim would have taken 14.7 months from filing to disposition, and a contract claim filed there would be disposed of in 11.1 months. Expedited cases in the 2nd District, for example simple contract actions, were usually disposed of in eight to 10 months, while complex cases, for example asbestos litigation or other mass torts, were usually disposed of in 18 to 24 months.

Holstein, who recently successfully defended against claims arising out of employment after removing the case to federal court, said that “the bottom line is that you get to trial more quickly in federal court [than in state court].”

The complex case — Ferguson v. Michael Foods, et al — involved three decisions and lasted 15 1/2 months. The first decision granted Holstein’s client partial summary judgment, the second decision denied the plaintiff’s request to call at trial Holstein’s nontestifying expert on emotional distress, and the third decision was the jury’s special verdict form, finding in favor of all defendants on all claims.

So why are federal courts able to dispose of cases more quickly than their state counterparts?

Several attorneys told Minnesota Lawyer that federal judges seem to have a better understanding of the law, especially in rapidly changing specialties.
One attorney noted that while attorneys can focus their practice on a very narrow area of the law, and spend the time to keep up with complex and technical changes, judges do not have that luxury — judges are expected to be “jacks of all trades.” Therefore, many attorneys believe that because federal court judges have more clerks and support staff to help them keep up to date with changing law, federal court judges will be better informed and federal court decisions will be better reasoned.

According to Wendy Osterberg, manager of planning and analysis for the federal courts, there are approximately 8 1/2 support staff for every federal judge. Federal district judges who carry a full caseload have two law clerks, a calendar clerk and a secretary. Magistrate judges have one law clerk, a courtroom deputy and a secretary. Also included in the support staff are those who work in operations (docketing, jury, intake), information services, human services, financial, facilities, procurement and training.

Meanwhile, each of the 26 state court judges in the 2nd District is supported by one law clerk and one court reporter. Although it depends on the court assignment, each of the 58 4th District state court judges is supported by one court reporter and two clerks — usually one judicial clerk and one law clerk.
Attorneys also pointed out that the way cases are assigned influences the rapidity with which a case is resolved. In federal court, each case is handled by two judges that are assigned from the outset — a magistrate judge who handles preliminary and discovery matters and the judge who hears the case. Pretrial issues are resolved promptly by the magistrate judge, and the trial judge can focus on the actual issues in the case. The magistrate judge also attempts to settle cases a few weeks before the scheduled trial.

Many practitioners prefer the federal court system to the state court system of assigning cases. In many counties, judges are not assigned to state court cases until the day of trial, and in some counties, several judges will be involved in portions of the case from start to finish. Delay can be caused if a judge is removed from the case. In state court, litigants are allowed to remove a judge without giving any reason — and since several judges may be assigned over the course of the case, even more delay can result.

Attorneys have said that not knowing which judge will hear a state court case from the beginning is “terrible.”

Gripes about state court

Practitioners have other gripes about the state court system. Although attorneys that practice before both the state and federal courts will more often rely on appellate decisions, it is far easier to find recorded precedent in the federal trial courts, remarked Holstein. The decisions of state trial judges are often not easy to come by, which can lead to a greater difficulty in researching the judges, Holstein said.

There are 58 judges in Hennepin County, where Holstein does much of her work, compared with a handful of federal judges in Minnesota. Attorneys who practice before the federal courts may feel that they know the federal judges and their preferences better than the state court judges, remarked Holstein, adding that “[the federal courts] have a lot fewer judges to know about, read about, and read the opinions of” when preparing for trial.

Make a federal case

Several attorneys contacted by Minnesota Lawyer mentioned that the federal courts are sometimes seen as “unfriendly” to certain litigants, especially in diversity cases. Riley observed that diversity jurisdiction has fallen out of favor with the federal courts because of the belief that state issues should be resolved by state courts.

The purpose of diversity jurisdiction is to provide an alternative forum for out-of-town litigants and hopefully prevent what Riley terms “home-towning.” He explained that, for example, in some smaller communities a corporation may hold the respect of nearly the entire community. If that corporation is sued in state court, the jury will be picked from a pool of people that some fear may be swayed by their previous opinion of the corporation, and who feel a duty to protect the local interests instead of make an unbiased decision.

According to Riley, one of the biggest reasons to file in federal court under diversity jurisdiction is to change the mix of the jury pool. You’ve heard the phrase “don’t make a federal case out of it,” he said. Even though state courts hear very important cases — the tobacco case is one of them — jurors may believe that federal cases are more serious and may feel a stronger desire to “do the right thing,” observed Riley.

Employment cases increasingly likely to go to court

In employment law, one recent trend is clear: an increasing number of these cases have wound up in federal court.

Attorney Judy Schermer, head of the employment law section of the Minnesota Trial Lawyers Association (MTLA), said that for employment lawyers, two major factors drive the decision to file in federal court: the opportunity for a jury trial and the expeditious resolution of the case.

Minneapolis attorney Patricia Bloodgood, president of Minnesota’s Federal Bar Association, agreed and noted that the federal docket has a high percentage of employment cases because of the Americans with Disabilities Act (ADA) and Title VII.

Schermer explained that although a plaintiff alleging employment discrimination is afforded a jury trial if she files in federal court, she does not enjoy the same luxury in state court. In a federal claim filed under Title VII, a plaintiff who alleges employment discrimination will have the fact issues decided by a jury of her peers. But the Minnesota Human Rights Act (MHRA) does not provide for a jury trial when employment discrimination is alleged in state court.

Schermer noted that several years ago the Minnesota Legislature attempted to amend the MHRA to allow jury trials in claims brought under the statute. However, then Gov. Arne Carlson vetoed the bill.

Schermer observed that plaintiffs who bring claims under the MHRA in state court are at a disadvantage, and actually suffer an additional form of discrimination, because unlike plaintiffs who bring their claims in federal court under Title VII, they aren’t allowed a jury trial.

According to Schermer, a jury trial is very important in employment discrimination cases because the attorney can filter out biased jurors — and because a “decision by peers” is an advantage. Schermer advises plaintiffs’ employment attorneys to bring an employment discrimination claim under both the MHRA and Title VII so that the case may be heard in federal court — and a jury will decide the case.

Another reason to file employment cases in federal court is the relative quickness with which the case will probably be disposed.

“You have to realize that these plaintiffs have lost their job — speed is very important,” said Schermer, adding that a main priority for many plaintiffs in employment cases is to recover money due them, put the dispute behind them, and get on with their lives.

In 1998, the average employment discrimination claim filed in federal court lasted 13 months, compared to 18.9 months for the same claim filed in Hennepin County.
But recognize that filing in federal court does have its drawbacks. Several attorneys contacted by Minnesota Lawyer observed that cases filed in federal court are more likely to be disposed of in summary judgment, and some perceive the federal courts to be friendlier to defendants in employment law cases.

Bloodgood observed that even when plaintiffs file in state court, defendants in employment cases often will remove to federal court because there is better chance that the case will be dismissed at summary judgment. For plaintiffs’ employment law attorneys, there’s a dilemma: do you push for the jury trial in federal court, or do you stay in state court for fear that the case will be thrown out?

According to Schermer, it’s a judgment call that depends on the facts of each case.