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When U.S. District Judge Jeffrey White recently fined attorneys for violating his standing orders, the reaction around the courthouse ran from they-shoulda-known-better to eye-rolling over the rookie judge’s insistence on decorum. “The guy is putting form way over substance,” said a lawyer who has appeared regularly before White and asked to remain anonymous. “His main role should be assuring fairness.” White and other judges say that’s what they’re doing with standing orders. By telling attorneys exactly how they want things done in their courtrooms, they’re trying to ensure smooth practice and earlier resolution of cases, which is good for everyone.
Read a few of the standing orders given
But some attorneys say it’s simply too much to keep track of. Each of the Northern District’s 14 active judges has an individual set of orders, ranging from a handful of directions to a few dozen pages of detailed instructions. They cover everything from trial preparation, to when it’s proper to write letters to the judge, to which documents need to be three-hole punched. Chief Judge Vaughn Walker wants to explore making things easier on attorneys. He wants his colleagues to think about finding common ground so that lawyers only have to learn one set of standing orders. “They strike me as largely unnecessary,” Walker said in a recent interview. Walker said it’s time-consuming � adding to client costs � for lawyers to have to learn a new set of rules each time they first appear in front of a judge. And the orders can contain intricacies that only the judge knows about and understands � “so that one who runs afoul [of an order] may incur a judge’s wrath,” he said. “I think that’s a risk lawyers shouldn’t have to bear.” Standing orders add another level on top of the case law, statutes, federal rules of procedure and local rules that also govern litigation. Judges share orders to some extent � especially in San Jose � but it’s impossible to find the commonalities without closely reviewing each judge’s orders. Arthur Wachtel, a San Francisco solo criminal defense attorney who also practices in state court � where hardly any judges have standing orders � said the added complication discourages some people from picking up federal cases. “It really ratchets up the pressure,” he said. At the same time, the stricter rules can make things go faster, Wachtel said. During trial, for example, federal judges usually require all exhibits to be pre-marked. “When you get to state court you realize how relaxed and time-consuming it is,” he said. Criminal and civil lawyers agree that having one set of orders would make their lives a lot easier, but they doubt judges would be able to agree on a common set. “There’s nothing in government that is like the independence of the district judge,” said Dennis Cunningham, whose firm was recently sanctioned by Judge White. “They might not want to go along with that.” E. Robert Wallach, who has done civil trials in the Northern District for 48 years, is also doubtful the judges could agree. “If we’re going to have them, we should at least have them uniform,” Wallach said. “The problem with this � we have this storied history of every judge being the feudal lord of the courtroom. One person’s justice is another person’s arbitrariness.” Along with the different sets of rules, there are also varying levels of enforcement. Judge Charles Breyer, for instance, said he could not recall ever fining an attorney for violating one of his orders. “When you bring it to their attention, that generally has a curative effect,” he said. Judge William Alsup said that although he also couldn’t think of a specific occasion on which he’s leveled sanctions, he’s sure he’s done so and would do it again. Both Breyer and Alsup said they would be in favor of harmonizing standing orders wherever possible and pointed out a couple of areas, such as electronic filing, where that’s been done already. But they agreed that bringing the bench into line would be very difficult. Alsup said the whole point of standing orders is to inform lawyers how each judge likes things done. Even if there was just one set of orders, judges would still have discretion. “I think it would be impossible to eliminate all the different standing orders,” he said. Judge White enforced his standing orders in two recent cases. In a criminal case, federal prosecutors violated White’s order regarding ex parte communications with his chambers. The judge chastised prosecutors and ordered his standing orders be distributed to the entire Northern District U.S. attorney’s office, even though the orders, like other judges’, are already available online. In a police brutality suit brought by the Law Office of Dennis Cunningham against the city of San Francisco, White’s punishment was even more severe. After both parties violated his discovery rules by writing him letters, he directed that his orders be distributed to all attorneys in the San Francisco city attorney’s office. He also fined each side $250. Both sides say they won’t quickly forget the experience. Sean Connolly, a deputy city attorney who helped on the matter, said that even after doing dozens of cases in the Northern District, “the lesson is you still have to familiarize yourself with standing orders.” Cunningham called the order prohibiting letters “a little outlandish” and White’s response “a little overboard,” but acknowledged the incident cured him of not paying close attention to standing orders. For White, that’s mission accomplished. “My job is � almost like raising children,” White said. “You have to tell people what your expectations are in a reasonable way, make them understandable and then enforce them. If you don’t, you will almost palpably be able to see anarchy in the courtroom.” White, who once headed the litigation department at Orrick, Herrington & Sutcliffe, is the newest Northern District judge. Even before the recent sanctions, he had a reputation as someone who really likes the trains to run on time. White said judges can spend a lot of time playing defense to the actions of attorneys. But from the moment President Bush put him on the bench in 2002, he decided to play offense and see what he could do to “get my arms around all my cases.” “The reaction so far has been largely positive and effective because people do seem to be complying,” he said. As for criticism that he’s emphasizing form over substance, White pointed out that the San Francisco police lawsuit settled soon after he leveled sanctions. “There’s a direct connection between my standing orders and the substance of the law,” White said. “The intent and effect is to enable me to get arguments before me in the most effective way.” As for Walker’s desire to explore consolidation, White agrees with others that it’s “a laudable goal.” “But I would not be in favor of doing homogenization in lieu of standing orders. I don’t think it’s that burdensome,” White said. “When I would practice law, the first thing I would do is look up standing orders.” Walker said he wasn’t prompted by White’s recent actions. Indeed, during last year’s Northern District bench retreat, the first since Walker took over as chief, the judge had his colleagues share with each other their best practices, things they’ve found useful in managing their heavy caseloads. Walker said he’s already spoken informally to some lawyers to try to get a sense of whether inconsistent standing orders are a big problem. So far, he hasn’t gotten negative reviews, but he’s also not sure people are being entirely candid because of his position as chief. He said the next step might be to discuss his idea at the judges’ retreat this fall. He doesn’t want his colleagues to worry he’s intruding on their power, especially over things like scheduling. But Walker thinks there are opportunities to make orders consistent. Walker said he doesn’t feel strongly about his own standing orders. “We have our individual likes and practices with respect to such matters as courtroom decorum,” Walker said. “And I’m not suggesting for a moment that we have to be locked in. What I’m talking about is a uniform set of requirements for the submission of pleadings, law and motion filings, submission of exhibits � those are the sorts of things that I’m talking about.”

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