Following up on my post from earlier this week, the Mecklenburg County Business Court CLE concluded on Friday with the panel of Judges, Chief Judge Bledsoe, Judge McGuire, and Judge Conrad, sharing some practice pointers and personal preferences. What follows is my summary and interpretation of what they said. As with my recitation of the statistics provided, I have worked hard to be an accurate reporter, but this is not a verbatim recitation (hence why you should attend this CLE-this summary is not a substitute from hearing from the Judges in person!).
Judge McGuire had some advice for those on the Plaintiff’s side of the “v” with respect to drafting complaints: less is more. “Shotgun” complaints with 12-14 claims that are sure to have a significant number dismissed on 12(b) motions weakens a party’s overall case and could potentially undermine your standing with the court. Focus on your three to four genuinely good claims.
Judge McGuire also warned lawyers to be conscious of their movements and facial expressions while their opponents are arguing during a hearing. Grimacing and gesticulating in reaction to the other side’s arguments makes it appear that you are getting beaten and that you know it. And people are watching you.
When it comes to trade secret cases, Judge McGuire suggested that Plaintiffs can, and should, describe a trade secret in a Complaint with much more specificity than they usually do. He referenced the recent summary judgment opinion in DSM Dyneema, LLC v. Thagard, 2019 NCBC 43, as instructive with respect to how trade secrets can be defined.
Judge Conrad advocated for more communication between parties. He said that the Judges want parties to talk to each other and resolve as much as possible before bringing disputes to the Court. And this doesn’t just relate to discovery disputes, it can mean discussion about viability of actual claims. To that end, he would like to see more consultation on motions to dismiss. Rather than a request for amendment at the time of the hearing on the motion, he suggested that parties can discuss these issues in advance and the Plaintiff can amend or narrow claims in some way so as to alleviate the need for motion practice. Defendants might consider allowing the Plaintiff to amend, and then file a targeted motion to dismiss, resulting in a more efficient process for the parties and the Court. Moreover, talking means actually talking. Don’t just communicate by email, pick up the phone. And perhaps even get together in person with counsel for the other side, something that was commonplace in the past, but has all but disappeared in modern day practice.
Judge Conrad also recommended that practitioners be aware of the ongoing e-courts initiatives, the effort spearheaded by former Chief Justice Martin to bring the North Carolina State Court System into the Electronic Age, as that will have an effect on the Business Court.
You likely have heard this before and perhaps even had it contained in a Case Management Order with Judge Conrad, but know that he and his chambers find tables of authorities to be incredibly helpful.
Chief Judge Bledsoe wants lawyers to remember to pay attention to choice of law issues. He noted that many times counsel reflexively assume that North Carolina law applies, but that is often not the case. Think through the different tests and brief the correct law. Briefing where the parties argue under the wrong jurisdiction’s law is not helpful to the Court, yet it happens when the issue is not at the forefront of the lawyers’ minds.
Speaking of being helpful to the Court, Chief Judge Bledsoe had some advice for younger lawyers (which applies equally to experienced lawyers): when you engage the Court and ask for something, put yourself in the Court’s shoes and think about what the Court would need to know in order to decide the issue. (Author’s note: this advice dovetails nicely with the new NCBC Rule 6.5, which affirmatively encourages participation of junior attorneys at oral argument.)
Similarly, Chief Judge Bledsoe commented that in many instances when injunctive relief is sought, the party seeking the relief is hyper-focused on satisfying the standard for an injunction and doesn’t think through what it wants the Court to actually do. Help the Court by suggesting what the injunction should actually look like.
Chief Judge Bledsoe also shared some personal preferences, one being paper copies. If your filing for Judge Bledsoe is in excess of 100 pages or has more than 10 attachments, supply his chambers with a hard copy of that submission. Also, when you have a question that you think a law clerk might be able to answer, don’t call on the phone. Rather, send an email copying all counsel of record. This avoids the clerk being put in a position of trying to determine if the communication is improperly ex parte.
And finally, although Judge Robinson unfortunately was unable to make it down to Charlotte for the panel, his brethren on the bench noted that if he were there, his advice would be, “Read the Rules. Then Re-read the Rules.”
Thanks to the Mecklenburg County Bar for putting on such a great CLE. Hope to see you all there next year!