Where You Gonna Go (Part I)

By Hugh McGavick; March 1996

My practice focuses on employment matters (not labor law), particularly civil rights and discrimination.  A recurrent dilemma in this area is whether to file in state or federal court.  Both courts have concurrent jurisdiction over the most common civil rights and discrimination cases.  Where to file may be the most critical decision you make.  There are numerous factors which need to be considered to make the right choice for your client.[1] 

            1:  Familiarity with the laws you will be dealing with.  Naturally, you will be well versed with the nuances of the Civil Rights Act (42 USC §§ 1981-88) and discrimination laws (Title VII and RCW 49.60) you will be proceeding under, but what about the judge?  Although I hate to generalize about any class of people, I think federal judges are much better versed in these matters, because of their constant exposure to these statutes.  A substantial part of every federal docket consists of civil rights and discrimination cases, because they have original jurisdiction over these federal causes of action.

            2:  The attorney's personal comfort level.  Even if you have federal experience, a return visit can be as intimidating as a colonoscopy (which your previous visits may have resembled).

            3:  Who is the plaintiff?  Will your client do better locally, or would their chances of success be enhanced by getting out of town before sundown?

            4:  Who are the defendants?  If you are suing well known or elected government officials (remember, they were popular enough to get elected), you'd probably do well to have a jury pool from southwest Washington than from your local area.  If they voted for the defendant in the ballot box, they're likely to do so in the jury room.

            5:  Who is on the bench?  How well do (you think) you know the players in black?  How political are they?  Are they afraid a large civil rights punitive damage or prevailing party fee award out of their court might look bad to the electorate?  Might they do what they can to prevent that from happening?  Been there, done that, don't like it.

            In the U.S. District Court for the Western District of Washington at Tacoma, there are only two judges, and they have lifetime tenure, so they should be less concerned about politics or popularity than superior court judges.  Judge Robert J. Bryan is a conservative Reagan appointee from 1986.  He is a scholarly fellow who is quite meticulous and runs a very tight ship.  He is certainly fair, but he's not necessarily sympathetic to plaintiffs against governmental entities or private employers.  Franklin D. Burgess is the newest federal judge.  A Clinton appointee, he replaced Judge Tanner in late 1994 or early 1995.  Historically, he is a liberal, but his judicial demeanor (since his ascendancy from magistrate) is still unknown.

            J. Kelley Arnold is the only U.S. Magistrate in Tacoma.  Prior to replacing Judge Burgess, he was one of the most highly regarded Pierce County Superior Court judges.  He is a bright, intelligent, even-handed, conscientious judge.  The local rules allow a case to be heard by a magistrate if both sides stipulate.  I currently have several cases pending there, but have yet to try one before Magistrate Arnold.  The judges are delighted when they have a competent magistrate, because parties are more often willing to go before the magistrate, thus lightening an always overcrowded docket.

            6:         Possibility of a visiting judge.  In state court you have a high probability of a visiting judge if you have a high profile local defendant, such as a local elected official.  State court judges rightfully love to pass these volatile cases on to their neighbors at the bench.  Then your knowledge of the local bench is useless.  The Solomon-like man you golf with on Saturdays may defer to Judge Dredd, and that could be a bad thing.           

            The possibility of a visiting judge is less likely in the federal system, but it does happen from time to time.  It is totally the luck of the draw if it happens, just as it is in state court.  Federal judges, particularly senior judges (i.e. those over 70 years of age with more than 10 years of service on the bench) have full lifetime pay, and a caseload and location pretty much of their own choosing.  They love to travel to the Northwest, especially in the summer time.  They usually come in with an iron fist, to show their local peers how to run a tight ship.  Beware.

            7:  How structured do you want to be?  The local rules differ in each county, and you know the rules of your road.  The federal court system is very structured.  You have a joint status report requirement early on in the case, and you have several pretrial deadlines as well as mandatory local rule 39.1 mediation.  (Each is dealt with in more detail later).

            8:  How soon will you be ready for trial?  How soon do you want to go to trial?  In the federal courts, cases are generally set within a year of the time the complaint is filed.  Shortly after filing, plaintiff receives notice of a joint status report requirement.  The burden is on plaintiff to advise defendants after they appear, and to initiate completion of the JSR.  In the Western District of Washington (which includes Seattle and Tacoma federal courts), all judges utilize this tool, but they are free to modify the particular format and requirements and they do.  Generally, the JSR is a scheduling device, to advise the court of mutual trial availability of counsel, projected length of trial, amenability to mediation (even though they always make civil cases do it, whether the parties feel they are amendable to it or not), the agreeability to refer a case to a magistrate (which happens only per stipulation), and any quirky issues.  From this, the Judge's in court deputy clerk sets magic dates for the trial, discovery cutoff, dispositive motions deadlines, and due dates for a mediation status report, trial briefs, instructions, voir dire, and proposed findings of fact and conclusions of law (if no jury trial).  Unlike state court, federal timelines are generally etched in stone, unless you die or the world ends.  It is unlikely you will be bumped by an overflowing criminal docket with priority settings because of speedy trial rights in federal court.  If you are bumped, it will be for a few days or weeks.  You will probably follow the case that bumped you.  We all know how different state court can be.  I started a civil rights discrimination case in Pierce County Superior Court in December, 1995, miraculously without being bumped: it was the only civil trial that department had in all of 1995.