Of course, the first task—the best way to know about the progress of the multijurisdiction litigation as a whole—is to communicate. Below are four suggested steps to initiate coordination in multijurisdiction litigation:
Step 1: Identify related cases
Identify related cases as a part of early case management. In states in which Federal Rule of Civil Procedure 16(b)-type scheduling conferences are not regularly held, it may be wise to hold one when you suspect that there are related cases in other jurisdictions. In your initial order scheduling the conference, notify the attorneys that they should be prepared to discuss related cases and hold them to it. Direct the parties—particularly the defendant(s)—to identify all related cases in other jurisdictions. Let the attorneys know that once they identify the related cases, you will consider communicating with the judges in those cases and you would prefer to have the attorneys’ agreement to do so.
Step 2: Initiate communication
When you have identified the related cases and the judges in the other jurisdictions, and after notice to counsel of your intent to communicate with those judges, initiate communication. Introduce yourself and ask the other judge(s) if coordination will be useful.
- The key to successful communication is as simple as mutual respect.
It may be obvious, but a key to initiating a successful communication is mutual respect. Do not expect judges in other jurisdictions to alter the schedules of their cases to accommodate your schedule. But you should be open to coordinating schedules to avoid duplication and inefficiencies, when possible.
In some cases, judges in other jurisdictions may be reluctant to discuss coordination because of ethical concerns, especially concern about the potential for ex parte communications. However, judicial codes of conduct generally allow judges to coordinate with other judges or even encourage judges to cooperate with other judges in the administration of court business.
If you receive a phone call from a judge in another jurisdiction and have some reservations about the communication, tell the judge that you want to notify attorneys in your cases of the communication. Inform your attorneys that you intend to communicate with the judge. It works best to obtain the attorneys’ cooperation at the outset—on the record, if possible. As will be discussed, attorneys may be reluctant to coordinate across jurisdictional lines. Be clear—let the attorneys know that you will be in communication with judges in other jurisdictions. Outline how contact will be made and what subjects will be covered. To the extent practicable, give the attorneys an opportunity to have input into the process and to voice any concerns they may have. Then, return the phone call.
Or, if you have spoken with a judge from another jurisdiction, inform the attorneys at the next available opportunity that you have communicated, and describe generally the information that was exchanged. Either approach may be acceptable, depending on your local rules and practices.
- Transparency: Letting the attorneys know, as early as possible, that you are communicating with other judges can head off later charges of interference.
Step 3: Address preliminary issues
The initial conversations should include discussion of:
- the number of existing cases and potential claims in each jurisdiction;
- the status or progress of cases in each jurisdiction;
- any existing deadlines in each jurisdiction;
- the resources available in each jurisdiction for managing the litigation;
- any differences between the laws of the involved jurisdictions that could create issues in the litigation (e.g., different discovery rules, common benefit fund issues); and
- “ground rules” for further communication and coordination, including the best means for maintaining the communication.
Step 4: Maintain communication
Depending on the nature of the litigation, consider appointing liaison counsel or a liaison committee to help you and the other judges keep in contact.
- From the outset, and on an ongoing basis: Show the attorneys how state and federal judges can work together.
The remaining sections of this resource address specific opportunities for coordination as well as issues you are likely to encounter in your efforts to coordinate.Depending on the nature of the litigation, consider appointing liaison counsel or a liaison committee to help you and the other judges keep in contact.
Next section: Technology
Paula L. Hannaford-Agor, Comment: Federal MCL Fourth and Suggestions for State Court Management of Mass Litigation (National Center for State Courts 2006)
Francis E. McGovern, Rethinking Cooperation Among Judges in Mass Tort Litigation, 44 UCLA L. Rev. 1851 (1997)
Francis E. McGovern, Toward a Cooperative Strategy for Federal and State Judges in Mass Torts Litigation, 148 Penn. L. Rev. 1867 (2000)
Gregory E. Mize & James Fletcher, Judicial Ethics Considerations When Managing Multi-Jurisdiction Litigation (National Center for State Courts 2012)
Federal Judicial Center, Manual for Complex Litigation, Fourth (2004), § 20.3