Silicon Valley Judges Ask Lawyers to Cut Out the Gamesmanship

Judges serving on the California federal court covering Silicon Valley said litigators have become increasingly combative and hyperbolic in their motion practice, which bogs down court resources and does little to improve outcomes for clients.

“Routine motions, just because you can file them, is a waste of our time, it’s a waste of your time, and it increases our workload so we can’t get to the real important things,” Judge Yvonne Gonzalez Rogers told attorneys and law students at a Federal Bar Association event in the Oakland, Calif., federal courthouse Tuesday evening.

There was a time when lawyers rarely filed motions to dismiss but “it’s almost as if everybody feels compelled to file them,” Rogers said. “Push back on your clients: What are you going to get out of this?”

Rogers, who sits in the US District Court for the Northern District of California, spoke alongside fellow Oakland division Judge Haywood S. Gilliam Jr. and Magistrate Judges Donna M. Ryu and Kandis A. Westmore. The event focused on how federal trial court judges think about their cases as they proceed through each phase of litigation.

The Northern District of California, which has divisions in San Francisco and San Jose, covers the center of the US tech industry and is a hotbed for high tech legal disputes and intellectual property litigation.

Rogers has racked up an especially high-profile tech docket. On Tuesday morning, she oversaw a fiery three-hour preliminary injunction hearing in Elon Musk‘s lawsuit accusing OpenAI of betraying its charitable goals where she indicated Musk’s request to block the startup’s conversion to a for-profit entity likely falls short.

She’s also overseeing a sweeping multidistrict litigation case involving hundreds of lawsuits accusing Meta Platforms, TikTok, Snap, and YouTube of causing a youth mental health crisis. She ran Epic Games’ antitrust trial against Apple.

Targeted Motion Practice

Rogers, who was appointed to the federal bench in 2011, said judges are far more interested in hearing targeted motions, ones that “say to the judge, ‘Look, they brought 10 causes of action, three of them really should be dismissed’ so we can make more efficient use of our time.”

“Focus on the three, get a win on the three,” Rogers said.

All the judges emphasized that they have very limited resources in the face of hundreds of active cases on their dockets. Each district judge has only three law clerks, and magistrate judges have only two.

“It’s a never ending amount of work,” said Westmore, who took her post in 2012. “We work all the time, whether we’re physically here or we’re at home or on vacation where we’re not supposed to be working, but it’s an endless amount of work, so have mercy on us.”

Rogers and Ryu said that they frequently see motion briefs that “are just all over the place” and don’t clearly identify what the law is and what the facts are. “Sometimes I think maybe it’s on purpose,” said Ryu, the court’s chief magistrate judge who joined the court in 2010. “Sometimes it may be a litigator’s goal to obfuscate.

A good brief, the judges all agreed, should make them feel like the conclusion is self evident without having to make dramatic characterizations about the law and facts.

The judges said that jokes and metaphors are rarely useful in motion briefs. “It might land, it might not,” said Gilliam, who was appointed in 2014. Ryu said the one area where analogies have been useful is in complicated patent and trade secrets cases, where a skilled IP attorney can help the judge or jury understand a scientific concept.

The judges said they rarely hold oral arguments in cases when they don’t have any questions for the parties. Westmore said she often has her opinion partially drafted by the time of the hearing.

Rogers emphasized that litigators should take the time to know their judge while preparing for oral arguments. They should look at their judge’s calendar and see what other cases are being heard the same day, she said.

“Some judges are really well prepared, other judges may not be as well prepared,” she said. “Maybe for those judges you do have to repeat your argument, or maybe they’ve been in trial all day so you want to give them a refresher.”

She said the best litigators she has seen focus most of their attention during oral arguments on the weakest part of their case. They give a judge a reason to rule in their favor by grounding their argument in the law, “not in hyperbole, not in ad hominem attacks, not in snarky comments,” Rogers said.