How Rule 83 Lets Each Federal Judge Set Their Own Procedures

Before 1938, federal courts followed the procedure of the state they sat in, as the Conformity Act required. A lawyer admitted in New York had to relearn basic filing procedures, including forms and deadlines, to appear in New Jersey.

The Federal Rules of Civil Procedure were meant to fix that with one national set of rules that a lawyer could learn once and use in any federal court. For a while, that mostly worked.

But buried in those same rules was a provision that would eventually undo the whole project.

"A district court, acting by a majority of its district judges, may adopt and amend rules governing its practice... A judge may regulate practice in any manner consistent with federal law..." - FRCP Rule 83

The second sentence says that a judge may regulate practice in any manner, and federal judges have used that power for decades.

What the differences look like

Individual judge rules are often assumed to be minor preferences, such as font size or margin widths. Those rules exist, but many judges' rules change how a motion is filed.

Filing a motion is a basic example. In the Southern District of New York, many judges require a "Pre-Motion Conference" letter, which asks the judge for permission to file. In the Central District of California, a "Rule 7-3 Conference" is a meet-and-confer between the parties that must happen before filing, so the same word names a different procedure.

A litigator who assumes "conference" means the same thing in both courts will either file a motion without permission or waste weeks scheduling a meeting that was never required. Either way, the client pays for the mistake.

Page limits on briefs are another example. The FRCP doesn't set one for most motions, and local rules vary, but many individual judges set limits that differ widely. One judge in EDNY caps memoranda at 25 pages, and another has no page limit but requires a table of contents past 10 pages. A third judge wants courtesy copies in a binder with tabs, and missing any of these rules can get a motion bounced. (We cataloged some of the wilder examples in our post on bizarre filing rejections.)

We've read thousands of pages of standing orders across the 94 federal district courts. The FRCP is relatively stable, and local rules add some variation, perhaps 30 to 40% deviation from the base. Individual judges' orders have no limit on how far they can differ.

Why judges write their own rules

Part of the reason is workload. Federal caseloads have roughly tripled since 1980, but Congress has added few judgeships, so many individual rules save the judge time. A 25-page limit is faster to read than a 50-page brief, and a pre-motion letter cuts down on frivolous motions. Each rule makes sense on its own, but together they mean that knowing the Federal Rules gets a lawyer maybe halfway to compliance.

Specialized dockets added more. Patent judges in the Western District of Texas and the District of Delaware found that standard rules didn't work well for complex IP litigation, so they wrote their own "Orders Governing Proceedings", which work as parallel procedural systems. A patent case before Judge Albright in W.D. Tex. runs mostly on his order rather than on the FRCP.

The judges don't coordinate with each other, because Rule 83 gives each one full authority over their own courtroom. The Judicial Conference sometimes encourages uniformity but cannot enforce it. The result is 670+ separate sets of procedures, each published as a PDF, a Word document or a web page on a court website.

Who bears the cost

Every motion in federal court now requires some research first. Before drafting, someone has to read the judge's standing orders, compare them with the local rules and work out which provisions override which. The time is billable, and it adds up for firms that practice in several districts.

Meritorious motions also fail on procedure, for example over a page limit in a PDF footer or a courtesy copy requirement that appears only on the judge's personal page. We've seen motions terminated for violating bundling rules that the filing attorney didn't know existed.

Pro se litigants have the hardest time, because a person representing themselves is even more likely than an experienced attorney to miss these requirements.

What can be done

Federal judges are unlikely to give up their individual rules. Rule 83 gives them the authority and caseloads give them a reason, and the Judicial Conference cannot override either.

If the rules can't be standardized, the way people look them up can be. CourtRules.app reads the standing orders of hundreds of judges and puts them in one searchable format. It shows the requirements that apply to a filing before the filing is submitted.