The Local Rules and Civil Litigation in the

Northern District of Illinois

William C. Martin

Practice Series

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Table of Contents

1. The Appearance of Attorneys in Federal Court - LR 83.10, LR 83.11 & LR 83.12 . . . . . . . . . . . . page 3

2. Responsive Pleadings and Filing Documents - LR 5.2, LR 7.1 & LR 10.1 . . . . . . . . . . . . . . . . . . . page 5

3. Motion Practice - LR 5.3, LR 5.4, LR 5.5, LR 78.1 & LR 78.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 6

4. Discovery Motions - LR 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8

5. Motion for Summary Judgment - LR 56.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8

6. The Pro Se Plaintiff - LR 56.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 13

7. Final Pretrial Order - LR 16.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15

8. Attorney’s Fees and Related Non-taxable Expenses - LR 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15

The Local Rules and Civil Litigation in the Northern District of Illinois1 INTRODUCTION

The Local Rules of the Northern District of Illinois (“Local Rules” or “LR”) affect every

aspect of civil litigation in federal court, from commencing an action and managing discovery to

conducting trials and collecting fees.2 This white paper highlights and explains a few of the

more troublesome Local Rules in the Northern District. Section I provides a brief background on

the Local Rules. Section II lists the more difficult Local Rules and explains how each of them

operates in the Northern District of Illinois.

Section I: A Brief Background on the Local Rules

Local federal rules have existed in one form or another since the creation of federal trial

courts in 1789. Walter W. Heiser, A Critical Review of the Local Rules of the Untied States

District Court for the Southern District of California, 33 San Diego L. Rev. 555, 556 (1996). At

that time, federal statutes authorized the district courts to make local rules consistent with federal

law, and the district courts created local rules to address special circumstances frequently

occurring in their courts. Since the adoption of the Federal Rules of Civil Procedure, district

courts have promulgated local rules to (i) actively manage civil litigation, (ii) attempt to curtail

the number of civil cases, and (iii) curb the abuse and the high costs of litigation.

Today both federal statute and the Federal Rules of Civil Procedure authorize district

courts to develop rules to govern the practice of law in their districts. Specifically, 28 U.S.C. §

1 A special thanks to my wife Robyn Martin, Judge James Holderman, my former co-clerk Joannie Wei, and Chaka Patterson for motivating me to write this document and helping edit the final product. 2 The Local Rules of the Northern District of Illinois can be found on the District Court’s website, http://www.ilnd.uscourts.gov.

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2071 and Federal Rule of Civil Procedure 83 enable federal district courts to adopt local rules

and mandate the local rules created are consistent with the Federal Rules of Civil Procedure and

existing federal statutes.

The Local Rules have the force of law. See Grassi v. Information Resources, Inc., 63

F.3d 596, 602 (7th Cir. 1995)(citations omitted). Further, the Northern District of Illinois holds

close to the idea that the strict, consistent, bright-line enforcement of the Local Rules is essential

to obtaining compliance, and ensuring the long-term aggregate benefits of efficiency. See

Midwest Imports Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995); see e.g., 12 C. Wright, A.

Miller, Federal Practice and Procedure § 3153, at 225 (1973)(stating the district court intended

the Local Rules to communicate a meaning to those to whom they are addressed, rather than to

carry some gloss, hidden in the minds of the judges who drafted them). Although the district

courts enjoy considerable discretion in whether to strictly apply the Local Rules or to overlook

any transgression, Midwest Imports Ltd., 71 F.3d at 1316-17, each district court is obligated to

apply the Local Rules so as to secure the just, speedy, and inexpensive determination of every

action by litigation, adjudication or settlement. Fed.R.Civ.P. 1. Accordingly, any interpretation

of the Local Rules that unnecessarily complicates the case, protracts litigation, or goes against

the just resolution of the case is the wrong interpretation.

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Section II: The Local Rules that Give Attorneys the Most Difficulty

1. The Appearance of Attorneys in Federal Court - LR 83.10, LR 83.11 & LR 83.12

Summary: The Local Rules require an attorney to file an appearance before or at the same time as doing anything in connection with a case. Additionally, when making an appearance before the court, there is a difference between membership of the general bar and membership of the trial bar. Only members of the trial bar may appear alone during all aspects of a case. Except in specific situations, members of the general bar may only appear in court in association with someone who is a member of the trial bar.

Under LR 83.12, only members in good standing of the general bar of the Northern

District of Illinois may enter an appearance; file pleadings, motions or other documents; sign

stipulations; or receive payments upon judgments, decrees or orders. The failure of an attorney

to file an appearance in a case creates serious administrative problems for the court and may

result in the court dismissing the claims of the client. See Strong v. Fairman, 676 F.Supp. 161

(N.D.Ill.1987).

An attorney who is a member of the general bar, but not of the trial bar, may appear

during testimonial proceedings only if accompanied by a member of the trial bar who is serving

as an advisor. LR 83.11(a)(1) defines a testimonial proceeding as an evidentiary proceeding in

which all testimony is given under oath, a record is made of the testimony, the witness or

witnesses are subject to cross-examination, a presiding officer is present, and the parties to such

proceedings are generally represented by attorneys. LR 83.11(a)(1) also includes in its definition

of a testimonial proceeding an administrative proceeding held before an administrative agency

where the findings and determinations of the agency are based upon the proceeding and are

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reviewable for sufficiency of the evidence by a court of record.3 Procedures limited to taking the

deposition of a witness do not constitute a testimonial proceeding for the purposes of LR

83.11(a)(1).

In addition, an attorney who is a member of the general bar, but not of the trial bar, may

appear as lead counsel for a defendant in a criminal proceeding only if accompanied by a

member of the trial bar who is serving as an advisor. Further, an attorney who is a member of

the general bar, but not of the trial bar, may sign pleadings, motions or other documents filed on

behalf of the defendant in a criminal proceeding only if they are co-signed by a member of the

trial bar. Attorneys admitted to the trial bar may appear alone in all matters.

Under LR 83.10, to be admitted into the general bar, an applicant must be a member in

good standing of the bar of the highest court of any state of the United States or of the District of

Columbia. Each person applying for admission to the general bar shall pay an admission fee of

$100 and file with the clerk a completed petition for admission on the approved form including:

(1) a certificate from the highest court of a state of the United States or of the District of

Columbia that the petitioner is a member in good standing of the bar of that court; and (2) the

affidavits of two attorneys who are currently and for at least two years have been members in

good standing of the bar of the highest court of any state of the United States or of the District of

Columbia and who have known the applicant for at least one year.

Under LR 83.11, an applicant for admission to the trial bar must be a member in good

standing of the general bar of the Northern District of Illinois, provide evidence of having the 3 LR 83.12, in mandating that an attorney be a member of the trial bar before appearing alone in testimonial proceedings before an administrative agency, seems outside the purview of the District Court. A letter raising this issue has been sent to the Executive Committee of the Northern District of Illinois and an amendment to LR 83.12 is expected soon.

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required trial experience as set forth in LR 83.11(a) and pay the admission fee of $50. Every

member of the trial bar must be available for appointment by the court to supervise attorneys

who are in the process of obtaining the observation units needed to qualify for membership in the

trial bar and each member of the trial bar must be available for appointment by the court to

represent or assist in the representation of those who cannot afford to hire a member of the trial

bar.

2. Responsive Pleadings and Filing Documents - LR 5.2, LR 7.1 & LR 10.1

Summary: When answering a complaint, counterclaim, cross-claim, etc. be sure to include each numbered paragraph being answered along with your corresponding answer. Simply filing a response with only answers is cause for the court to strike the response. Additionally, avoid adjusting the margins, line spacing or font sizes to format a document under fifteen pages. Such shrinking machinations are highly noticeable and are also cause for the court to strike the submission. If more than fifteen pages are needed, file a motion to exceed the page limit.

Under LR 10.1, responsive pleadings shall correspond to the numbered paragraphs to

which they are directed. Each numbered paragraph in response should first re-state the

paragraph to which it is directed, and then the response should directly follow the re-stated

paragraph. Never simply respond to a numbered paragraph without including the paragraph to

which the response is addressed.

Under LR 5.2, each document filed shall be flat and unfolded on opaque, unglazed, white

paper approximately 8 ½ x 11 inches in size. Each document shall be plainly written, typed, or

printed. The line spacing must be at least 1.5 lines with 12 point font (11 point font in the

footnotes), and a 1 inch margin around the entire document. Additionally, all filings with the

clerk must include an original in addition to a judge’s copy. No courtesy copies need be filed or

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sent directly to chambers unless the judge specifically requests it in your case or it is requested in

the court’s standing order.

Under LR 7.1, no document filed shall exceed fifteen pages without prior approval of the

court, and prior approval does not mean filing a motion to exceed the page limit instanter. Any

brief that does not comply with this rule is subject to the court striking the entire brief. With

prior approval, briefs that exceed fifteen pages must have a paginated table of contents and a

table of cases.

3. Motion Practice - LR 5.3, LR 5.4, LR 5.5, LR 78.1 & LR 78.2

Summary: Most judges read all motions and supporting material before the motion call. Accordingly, it is imperative that attorneys abide by the two-day notice period and ensure that an original of the motion, along with a judge’s copy is filed with the clerk. Additionally, always bring two extra copies of the motion and materials with you to court, one for the judge and the other for opposing counsel, particularly if you used the drop box to file your motion or in case the clerk’s office temporarily misplaced your materials.

Under LR 78.1, a motion must be filed no later than 4:30 P.M. of the second business day

preceding the date of presentment chosen by counsel, but not more than 10 business days

following the date on which the motion is delivered to the court. Translation: You must give the

court at least two full business days but not more than ten business days notice before you appear

in court to present a motion. Please note, however, that under LR 5.3, personal service of a

motion on all opposing counsel and/or parties must be accomplished no later than 4:00 P.M. of

the second business day preceding the date of presentment.

Additionally, LR 5.3 states that every motion, except ex parte motions and motions

presented by stipulation, must be accompanied by a notice of presentment specifying the date,

the time at which, and judge before whom, the motion is to be presented. LR 5.3 also states that

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the notice of presentment, a copy of the motion and any accompanying documents must be

served by personal service or mail service. Personal service includes actual delivery, delivery by

a service organization providing for delivery, or by fax. Where the service is by mail, the notice

and documents shall be mailed at least five business days before the date of presentment. Finally,

LR 5.5 states that proof of service is also required on all motions, even agreed motions signed by

both sides. If the person serving is an attorney of record then proof by certificate is sufficient. If

the person serving the papers is not an attorney of record then proof by affidavit, by written

acknowledgment of service, or by any other proof satisfactory to the court is sufficient.

A judge may modify this two-day notice requirement to a time longer than two days. The

clerk of the court maintains a list of the current motion practices of each of the judges at the

assignment desk in the clerk’s office. Under LR 78.2, the court on its own initiative may deny a

motion for failing to give proper notice, or for failing to effect proper service.

It is important to note that using the drop box to file your motion puts that motion and

supporting materials at a high risk of not finding its way to the intended judge in a timely

manner. The drop box is the wooden rectangle cube located at the entrance of the elevator banks

within the Dirksen Federal building. Within the cube is a time stamp and slot to deposit

documents. There is a high risk that your documents will not be received in a timely manner

because the clerk’s office handles drop box filings separately from filings received directly by

the clerks office. The clerk’s office only retrieves and sorts the documents filed in the drop box

once a day. Accordingly, the motion you filed in the drop box on Tuesday for presentment on

Thursday will not be retrieved, sorted, and docketed until sometime on Wednesday. The best

case scenario, therefore, is your motion will not reach the judge until sometime Wednesday

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afternoon. If you need to file a motion late, after the clerk’s office has already closed for the day

at 4:30 P.M., you should notify the judge’s minute clerk or adjust the presentment date. Filing in

the drop box will not insulate an attorney from a judge’s lecture for filing a document late nor

will it provide an excuse should the judge not receive a copy of the motion and supporting

materials before presentment.

4. Discovery Motions - LR 37.2 Summary: File your motion to compel discovery or motion for relief from discovery

early; but, only after you have talked with opposing counsel in an attempt to resolve the matter without the court’s assistance.

Under LR 37.2, in order to curtail undue delay and expense in the administration of

justice, the district court typically refuses to hear any and all motions for discovery and

production of documents under Rules 26 through 37 of the Federal Rules of Civil Procedure

unless the motion includes a statement that after consultation, either in person or by telephone,

the parties were unable to reach an accord. In making a motion to compel, the movant must be

willing to state that the consultations were unsuccessful due to no fault of the movant. The

statement should also recite the efforts made by moving counsel to reach an accord.

5. Motion for Summary Judgment - LR 56.1

Summary: Of all the Local Rules, LR 56.1, previously Local Rules 12(M) and 12(N), is perhaps the most important simply because the court ultimately resolves such a large amount of its cases on summary judgment. Local Rule 56.1 serves to streamline litigation by creating a roadmap for the court, appraising the court of the precise facts in dispute, and directing the court to the supporting evidence. Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000)(citation omitted). There is, however, no short-cut or synopsis to understanding LR 56.1.

LR 56.1 is probably the rule most misunderstood and misapplied by attorneys. See

generally, Iain D. Johnston, “Summary Judgment Motions in the Northern District, The

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Importance of Local Rules 12M & 12N,” CBA [Chicago Bar Association] Record, Apr. 1998, at

24-29. In general, on a motion for summary judgment the district court has one task: to decide,

based on the evidence in the record, whether there is any material dispute of fact that requires a

trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11 (1986).

To accomplish that task, the Northern District of Illinois created Local Rule 56.1 to “isolat[e]

and dispos[e] of factually unsupported claims and defenses,” Davis v. Frapolly, 756 F.Supp.

1065, 1069-70 (N.D.Ill.1991), and to simplify the court’s task of determining a summary

judgment motion. Real Colors, Inc. v. Patel, 39 F.Supp.2d 978, 985 -986

(N.D.Ill.,1999)(discussing the purpose of Local Rule 56.1’s predecessor Local Rule 12(M) and

Local Rule 12(N)).

If LR 56.1 is followed correctly by both sides, there should be no more than four sets of

factual statements. See Johnston, at 26 (discussing the importance of local rules 12M and 12N

now reclassified as LR 56.1). These factual statements are the roadmap by which a district court

will determine whether a case should go to trial. No additional facts should be included in your

memorandum of law that have not been included in one of the four sets of factual statements.

Additionally, there should be no citations to depositions or affidavits in your memorandum of

law, only citations to case law and one of the four factual statements. LR 56.1 provides:

LR 56.1. Motions for Summary Judgment

(a) Moving Party. With each motion for summary judgment filed pursuant to Fed.R.Civ.P. 56 the moving party shall serve and file—

(1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law, and that also includes:

(A) a description of the parties, and

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(B) all facts supporting venue and jurisdiction in this Court. The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion. . .

A. Factual Statement #1

The LR 56.1(a)(3) Statement: This statement sets the tone for the movant’s motion for

summary judgment. The goal of this statement is to set out and substantiate every element of the

case and demonstrate to the court that based on the record there are no disputed issues of

material fact. This statement must contain numbered paragraphs with each numbered paragraph

containing a single factual element. Attorneys should avoid compound and complex factual

statements. In addition, each paragraph must contain a specific reference to the concise

evidentiary material supporting the single factual element, and the supporting evidentiary

material must be provided in conjunction with the 56.1(a)(3) statement. General citations to

deposition pages or to sections of documents lack credibility and should be avoided. Citations to

the complaint are wholly insufficient. Failure to cite concisely to the record may result in the

court deeming the inadequately-cited fact disputed or completely disregarding the fact as without

evidentiary support.

LR 56.1(b) - Opposing Party. Each party opposing a motion filed pursuant to Fed.R.Civ.P. 56 shall serve and file—

(1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) a concise response to the movant’s statement that shall contain:

(A) a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon . . .

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B. Factual Statement #2

The LR 56.1(b)(3)(A) Statement: This statement is a concise response to the 56.1(a)(3)

statement. The goal of this statement is to defeat the motion for summary judgment, and in order

to accomplish that goal, the 56.1(b)(3)(A) statement must persuade the court that there are

disputed issues of fact that pertain to the elements of the case. Disputed issues of fact not

germane to an accurate adjudication of this case will not defeat a motion for summary judgment.

The 56.1(b)(3)(A) statement must first recite each numbered paragraph of the 56.1(a)(3)

statement and then respond in a corresponding numbered paragraph directly below the recited

paragraph. In the response, if the recited factual statement is undisputed, the response should

simply say “Undisputed.” If the recited factual statement is disputed, the response should say

“Disputed” with a short concise statement of why the factual statement is disputed and a citation

to the record. Verbose arguments and narratives should not be included where the factual

statements are disputed. Similar to the 56.1(a)(3) statement, the citation included in the response

to the disputed factual statements must be specific to the concise evidentiary material disputing

the factual statement. It is important to remember that it is the citation to the record which

actually puts a factual assertion into dispute and not the carefully worded response of an

attorney.

Anything less than a response of “Disputed” with a short concise statement along with a

citation to supporting evidentiary material is grounds for the court to deem the assertion

undisputed. For instance, the failure to concisely articulate why a factual statement is disputed;

and vague or incorrect citations to the record are both grounds for that factual statement to be

deemed undisputed. Furthermore, a response of “Lack of sufficient knowledge to admit or deny”

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or simply objecting to a particular assertion on evidentiary grounds are also insufficient to

dispute a factual issue. Finally, evidence submitted in conjunction with each statement must be

admissible at trial under the Federal Rules of Evidence.

It is important that an attorney be forthright in responding to a 56.1(a)(3) statement since

(1) the factual statements of the non-movant are given deference on a motion for summary

judgment, and (2) the factual statements within the 56.1(b)(3)(A) statement are not considered

admitted or undisputed at trial unless summary judgment is granted. The failure to file a

forthright 56.1(b)(3)(A) statement, however, may result in an admission of all the factual

statements within the 56.1(a)(3) statement, and if summary judgment is entered in favor of the

movant, then the factual statements within the 56.1(a)(3) statement will be binding judicial

admissions of fact.

LR 56.1(b)(3)(B) - a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party. . .

C. Factual Statement #3

The LR 56.1(b)(3)(B) Statement: This statement is the non-movant’s opportunity to

bring forth additional facts that bear on the ultimate questions of fact and create a genuine issue

of material fact. The requirements of this third set of factual statements are identical to the

requirements of the LR 56.1(a)(3) statement of undisputed facts. It is important to remember

that the non-movant must set out its additional facts separate and distinct from its response to the

movant’s statement of undisputed facts.

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LR 56.1(a)(3)(B) - If additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(B) will be deemed admitted unless controverted by the statement of the moving party.

D. Factual Statement #4

LR 56.1(a)(3)(B) Statement: This statement is a concise response to the non-movant’s

Rule 56.1(b)(3)(B) statement of additional facts. The requirements for this final set of factual

statements are identical to the requirements of the Rule 56.1(b)(3)(A) statement.

Compliance with LR 56.1 is not discretionary. Without a movant’s 56.1(a)(3) statement

of uncontested facts, the record is totally inadequate to even entertain a summary judgment

motion. Failure to comply with LR 56.1(a)(3), therefore, will, more times than not, result in the

denial of the motion. Failure to comply with LR 56.1(b)(3), however, does not result in an

automatic grant of the motion for summary judgment. A district court must still evaluate all

facts in the light most favorable to the non-moving party. Id. The failure to comply with Local

Rule 56.1(b) will, more times than not, result in the court accepting as true all material facts set

out in the 56.1(a)(3) statement. Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 870 n.3

(7th Cir. 2000).

With all four sets of factual statements submitted, if appropriate, a party should file a

motion to strike offending sections of memoranda or factual statements. A motion to strike

should be separate from all 56.1 submissions and separate from memoranda in support of or in

opposition to the motion for summary judgment. The motion to strike should specifically state

the offending part of a party’s submissions and state the concise grounds of the offense. The

motion to strike should be noticed for presentment pursuant to Local Rule 78.1.

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6. The Pro Se Plaintiff - LR 56.2

Summary: When the time comes for the filing of a motion for summary judgment against a pro se plaintiff, notify the pro se plaintiff directly and clearly articulate their responsibilities in response to a motion for summary judgment.

This rule is included in this list because dealing with pro se plaintiffs is a necessary part

of practice in federal court and, as officers of the court, attorneys must assist pro se plaintiffs in

the prosecution of their cases. Complaints by pro se plaintiffs are to be liberally construed and

are not held to the stringent standards expected of pleadings drafted by lawyers. McCormick v.

City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). On a motion for summary judgment, the

Federal Rules of Civil Procedure forbid a district court from acting on the motion without giving

the non-moving party a reasonable opportunity to respond appropriately. Fed. R. Civ. P. 56.

Accordingly, a motion for summary judgment will not be granted against a pro se litigant unless

the pro se litigant receives clear notice of the need to file affidavits or other responsive materials

and of the consequences of not responding. See Timms v. Frank, 953 F.2d 281, 284 (7th Cir.

1992). The United States Court of Appeals for the Seventh Circuit explains that this notice

should come from opposing counsel and should include a short, plain statement of the need to

respond to a summary judgment motion, giving both the text of Federal Rule of Civil Procedure

56(e) and an explanation of the rule in ordinary English. Id. If opposing counsel fails to provide

the requisite notice then the district court should do so. Id.

Under LR 56.2, any party moving for summary judgment against a party proceeding pro

se shall serve and file as a separate document, together with the papers in support of the motion,

a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment.” Where the pro se party

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is not the plaintiff, the movant should amend the notice as necessary to reflect that fact. A

sample notice is included within the text of LR 56.2.

7. Final Pretrial Order - LR 16.1

Summary: In preparing a case to go to trial, follow LR 16.1 and the standing orders of the court to the letter.

A well-prepared final pretrial order helps to ensure that the necessary evidence to resolve

the matter is presented clearly and efficiently through the sieve of the Federal Rules of Evidence

to the finder of fact. A final pretrial order shall be prepared whenever the judge to whom a case

is assigned so orders. Pursuant to Fed.R.Civ.P. 16, the Northern District has adopted a standing

order on pretrial procedures together with model pretrial order forms that encompass LR 16.1.

This pretrial procedure is not a suggestion on the proper form but a mandate, and failure to

comply with LR 16.1 in its entirety can result in either dismissal for want of prosecution, default

judgment entered, dismissal of certain claims, bar against certain witnesses, sanctions, or all of

the above. When filing motions in limine in conjunction with the final pretrial order, each

motion in limine should be filed separately from the final pretrial order, and separately from one

another so as to create individual docket numbers for each motion in limine.

8. Attorney’s Fees and Related Non-taxable Expenses - LR 54.3 Summary: Local Rule 54.3 was promulgated to promote an amicable resolution to fee

petitions and lessen the burden on the court by defining the areas of actual disagreement between the parties to a fee petition dispute. South/Southwest Ass’n of Realtors, Inc. v. Village of Crestwood, 985 F.Supp. 833, 834 (N.D.Ill. 1997). The determination of a fee award is left to the discretion of the district court. Eddleman v. Switchcraft, Inc., 965 F.2d 422, 424 (7th Cir.1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941 (1983)). The party requesting the fee award bears the burden of substantiating, to the court’s satisfaction, the requested hourly rate as well as the hours expended. McNabola v. Chicago Transit Auth., 10 F.3d 501, 518 (7th Cir.1993). The object in awarding a reasonable attorney’s fee is to provide a lawyer what the lawyer would have

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received by way of a fee agreed upon in an arm’s length negotiation. In re Continental Illinois Securities Litigation, 962 F.2d 566, 572 (7th Cir.1992). The district court judge, therefore, steps in and plays the role of surrogate client. Id.

Prior to filing a motion for fees, LR 54.3(d) mandates that the parties involved confer and

attempt in good faith to agree on the amount of fees and/or related nontaxable expenses that

should be awarded. During the attempt to agree, the movant, upon request, must provide the

following information to the non-moving party: (1) the time and work records on which the

motion will be based, specifying the hours for which compensation will and will not be sought;

(2) the hourly rates that will be claimed for each lawyer, paralegal, or other person and the

representative business records to justify that hourly rate; and (3) evidence that will be used to

support the related nontaxable expenses to be sought by the motion. If the movant will rely on

the rates charged by attorneys of comparable experience and qualifications, or evidence of rates

used in previous awards by courts or administrative agencies to establish appropriate hourly

rates, then the movant shall provide such other evidence.

If no agreement is reached, then the respondent shall, within 21 days of receipt of that

information, disclose to the movant the total amount of attorney’s fees paid by respondent for the

litigation and shall furnish the time and work records, evidence of the hourly rates, evidence of

the specific expenses incurred or any other evidence the respondent will use to oppose the

requested hours, rates, or related nontaxable expenses. All information furnished by any party

under this section shall be treated as strictly confidential by the party receiving the information.

The information shall be used solely for purposes of the fee litigation, and shall be disclosed to

other persons, if at all, only in court filings or hearings related to the fee litigation.

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Within 14 days after the above information is exchanged and before the motion is filed,

the parties shall specifically identify all hours, billing rates, or related nontaxable expenses (if

any) that will and will not be objected to, the basis of any objections, and the specific hours,

billing rates, and related nontaxable expenses that in the parties’ respective views are reasonable

and should be compensated. The parties will then attempt again to resolve any remaining

disputes.

If any matters remain in dispute after the above steps are taken, the parties, prior to the

filing of the fee motion, shall prepare a joint statement listing the following: (1) the total amount

of fees and related nontaxable expenses claimed by the moving party (if the fee request is based

on the “lodestar” method, the statement shall include a summary table giving the name, claimed

hours, claimed rates, and claimed totals for each biller.); (2) the total amount of fees and/or

related nontaxable expenses that the respondent deems should be awarded (if the fees are

contested, the respondent shall include a similar table giving respondent’s position as to the

name, compensable hours, appropriate rates, and totals for each biller listed by movant.); (3) a

brief description of each specific dispute remaining between the parties as to the fees or

expenses; and (4) a statement disclosing: (a) whether the motion for fees and expenses will be

based on a judgment or on a settlement of the underlying merits dispute, and (b) if the motion

will be based on a judgment, whether respondent has appealed or intends to appeal that

judgment. Unless the court orders otherwise, the joint statement must be completed no later than

70 days after the entry of the judgment or settlement agreement on which the motion for fees will

be based.

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Finally, pursuant to LR 54.3, the fee motion must be filed and served no later than 90

days after the entry of the judgment or settlement agreement on which the motion is founded,

with the joint statement attached. Please note that pursuant to LR 54.3(c) the filing of a fee

motion does not toll the time for an appeal of any judgment on which the motion is founded.

If it appears that the procedures set forth in this rule cannot be followed within the time

limits established by the rule or by order of court, then a motion may be filed seeking

instructions from the court pursuant to LR 54.3(g). The motion must state with specificity the

nature of the dispute or the items not turned over and the attempts made to resolve the dispute or

to obtain the items. The motion must be filed not later than 10 days following the expiration of

the time within which the matter in dispute or the materials not turned over should have been

delivered in accordance with the time table set out in this rule or in the court’s order.

CONCLUSION

The successful attorney in the Northern District of Illinois must have a thorough

understanding of the Local Rules. Although the Local Rules of the Northern District of Illinois

are numerous, the Rules are navigable as they are generally numbered to correspond to the

Federal Rules of Civil Procedure, and the more complex Local Rules have case law explaining

their purpose and operation. Taking the time to understand and apply the Local Rules effectively

will raise the proficiency of your practice in the Northern District, and will also serve your

clients well.