NextGen Attorneys; Settlement Conference Order; SS Initial Order

=== NextGen Attorneys ===

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION IN RE: STANDING ORDER CONCERNING COURTROOM PARTICIPATION BY NEWER ATTORNEYS IN CIVIL CASES MAGISTRATE JUDGE DARRELL A. CLAY The Court is cognizant of the increasing trend of fewer civil cases proceeding to trial, and more generally for fewer opportunities for in-court speaking (so-called “stand-up”) engagements. This is especially true for newer attorneys, that is, attorneys who have been in practice seven years or less (“newer attorneys”), including but not limited to those attorneys who identify with groups that have been historically under-represented in the legal profession. The Court believes it is crucial to provide substantive speaking opportunities for newer attorneys and that doing so will benefit these attorneys, their clients, and the profession generally. Recognizing the importance of developing the next generation of practitioners through meaningful courtroom opportunities, the undersigned desires to encourage the active participation of newer attorneys in civil proceedings in my courtroom—particularly as to oral argument on motions where the newer attorney drafted, or contributed significantly to the drafting of, the memorandum in support or memorandum in opposition. To that end, the undersigned hereby adopts the following procedures regarding oral argument on pending motions in civil cases: (1) Within seven days after a motion is fully briefed, a newer attorney may file a written Request for Oral Argument, alerting the Court that, if argument is granted, the newer attorney will be responsible for presenting argument in favor of or in opposition to the motion. (2) Upon the filing of such notice, the Court will: (A) Grant the request for oral argument on the motion, if it is practicable to do so while remaining cognizant of the provisions of Local Rule 7.3. (B) If the Court grants oral argument on the motion, it will issue an appropriate scheduling order, and may, in its discretion, allocate additional time for argument beyond what might otherwise have been allocated were a newer attorney not arguing the motion. (C) Permit more experienced counsel of record the ability to provide limited assistance to the newer attorney who is arguing the motion, where 1 Revised 6.14.2021 appropriate during oral argument. Any newer attorney requesting oral argument is strongly encouraged, in counsel’s independent professional judgment, to have an experienced lawyer accompany the newer attorney. (3) If a request for oral argument is granted, opposing counsel is not required to have a newer lawyer to argue; it remains acceptable for a seasoned practitioner to argue the opposite side of the motion. The foregoing provisions shall not apply to cases that are subject to Local Rule 16.3.1, unless otherwise specifically ordered by this Court. Furthermore, the participation of newer attorneys in all court proceedings—including, but not limited to, preliminary pretrial Rule 16 conferences, pre-motion conferences, hearings on discovery disputes and motions, dispositive motions, final pretrial conferences, and examination of witnesses at trial or during evidentiary hearings—is strongly encouraged. All attorneys, including newer attorneys, will be held to the highest professional standards concerning oral argument or other in-court participation. Relatedly, all attorneys appearing before the Court are expected to be adequately prepared and thoroughly familiar with the factual record and the applicable law, and to have a degree of decision-making authority commensurate with the proceeding. The Court also recognizes that there may be many different circumstances in which it is not appropriate for a newer attorney to argue a motion or participate during in-court proceedings. Thus, the Court emphasizes it shall draw no inference from a party’s decision not to have a newer attorney argue a motion or participate during in-court proceedings. Additionally, the Court shall draw no inference about the importance of a particular motion, or the merits of a party’s argument regarding the motion, from the party’s decision to have (or not to have) a newer attorney argue the motion. The purpose of this Standing Order is to facilitate one generation teaching the next how to argue and try cases and to maintain and strengthen our district’s reputation for excellence in trial practice. Dated: June 14, 2021 DARRELL A. CLAY UNITED STATES MAGISTRATE JUDGE N.B.: This order adapted from Standing Order Regarding Courtroom Opportunities for New Attorneys, promulgated by United States Magistrate Judge Christopher J. Burke of the District of Delaware on October 23, 2017, available at http://www.ded.uscourts.gov/sites/ded/files/ StandingOrder2017.pdf. 2 Revised 6.14.2021

=== Settlement Conference Order ===

PLEASE READ CAREFULLY. Lead counsel is personally responsible for complying with this Order. IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION , vs. , CASE NO. Plaintiff, JUDGE Choose an item. MAGISTRATE JUDGE DARRELL A. CLAY ORDER SETTING SETTLEMENT CONFERENCE Defendant. I will hold a settlement conference in this matter case on Click or tap here to enter text. at Click or tap here to enter text. a.m./p.m. at the James L. Ashley and Thomas W.L. Ashley United States Courthouse, 1716 Spielbusch Avenue, Room 403, Toledo, Ohio. All parties and their lead counsel are ORDERED TO APPEAR at that time. Lead counsel for each party must carefully review the requirements of this Order to ensure compliance. As detailed below, each party must submit a confidential settlement statement before the scheduled settlement conference. In addition to the requirements detailed in this Order, the first paragraph of each party’s settlement statement MUST contain the following: (i) a certification that lead counsel for that party has personally reviewed the requirements of this Order, including having provided a copy to the party or party representative and discussed the contents of this Order with that person; (ii) identify the party or party representative(s) who will be attending the settlement conference; and (iii) a certification that the attending representative has ultimate settlement authority. Potential consequences for failing to comply with this Order are detailed below. 1 Revised 11.22.2023 SETTLEMENT CONFERENCE REQUIREMENTS A. ATTENDANCE OF ALL PARTIES IS REQUIRED Unless otherwise specifically ordered, persons with ultimate settlement authority must personally participate in the settlement conference. “Ultimate settlement authority” means the unconditional authority to enter into a binding settlement agreement without necessity of contacting anyone else for approval. All named individual parties and the authorized representatives of all named corporate, governmental, or other parties must attend the settlement conference, together with lead counsel for each party. When the settlement decision will be made in whole or in part by an insurance company, the insurance company must send a representative in person with full and complete authority to bind the company up to the value of the opposing party’s claim counterclaim. A governmental entity must send a representative authorized to act on its behalf, and to bind the governmental entity up to the value of the opposing party’s claim or counterclaim, understanding that some settlement decisions may be subject to further approval by an elected municipal board. A corporate entity must send a representative with full and complete authority to bind the entity up to the value of the opposing party’s claim or counterclaim. If a committee, board, or similar body determines a party’s authority, counsel must include that information in the confidential settlement statement. If a party fails to produce a person with ultimate settlement authority, and such failure negatively impacts the effectiveness of the settlement conference, then in my discretion, I may order an award of costs and attorney fees incurred by the other part(ies) in connection with the conference and/or other sanctions against the noncomplying party and/or its counsel. I may also require the parties to return for a rescheduled conference with the appropriate person(s) present. B. PRE-SETTLEMENT CONFERENCE REQUIREMENTS 1. Pre-settlement conference demand and response A settlement conference is more productive if the parties have already exchanged written settlement proposals. Accordingly, no later than twenty-eight days prior to the settlement conference, each counsel for a party seeking affirmative relief (“claimant’s counsel”) must submit a written itemization of damages and settlement demand to opposing counsel, along with a brief explanation of why such a demand is appropriate. No later than twenty-one days prior to the 2 Revised 11.22.2023 settlement conference, opposing counsel must submit a written response to claimant’s counsel, along with a brief explanation of why such an offer in response is appropriate. Do not file copies of these papers with the Clerk of Court. On occasion, this process may result in a settlement, in which case counsel should promptly notify the Courtroom Deputy so the settlement conference may be cancelled timely. If settlement is not achieved, counsel must include a copy of the pre-settlement demand or response as an exhibit to the confidential settlement statement. 2. Confidential settlement statement Each party must submit a confidential settlement statement to me no later than fourteen days prior to the settlement conference. The confidential settlement statements are for my exclusive use in preparing for the settlement conference and will not be made a part of the case file. The settlement statement must: a. b. c. d. e. f. Comply with the requirements set forth in the emphasized paragraph preceding Section I of this Order; Recite the key facts pertinent to the dispute; List all claims and defenses that remain pending; Outline the applicable law, and how it applies to the facts of the case; Discuss the strengths and weaknesses of the claims and defenses that remain pending; and Recap any settlement negotiations between the parties. If not already available from the docket, copies of any exhibits essential to understanding a party’s settlement position and/or evaluation of the case may be attached to the settlement statement. Absent leave of court, the settlement statement may not exceed five single-spaced pages (using 12-point font size and 1” margins throughout) and must contain enough information to be useful to analyzing the factual and legal issues in the case. The parties are encouraged to be candid and frank in their confidential settlement statements. Do not file the settlement statement with the Clerk of Court. Instead, submit it by email to [email protected]. Unless all parties agree, the confidential settlement 3 Revised 11.22.2023 statements are not to be exchanged with other parties. (If the parties have agreed to exchange their settlement statements, this should be noted in the settlement statement.) If the settlement statement provides more than twenty-five pages of exhibits, then no later than seven days before the settlement statement is due, counsel must file a motion seeking leave and demonstrating good cause. If leave is granted, then in addition to e-mailing the statement, counsel must forward two hard copies of the settlement statement and exhibits to Chambers at least ten days before the settlement conference, to allow additional time to review the materials in advance of the settlement conference. The exhibits must be properly labelled, indexed, and secured together. C. SETTLEMENT CONFERENCE 1. Settlement conference format A settlement conference usually begins with a general session with all parties and counsel, followed by private caucusing. Typically, opening statements in the general session are not required. Also, in some cases, I may initiate contact with counsel to begin discussions in advance of the settlement conference date. All counsel, parties, and party representatives must be fully prepared to participate throughout the settlement conference. It is critical that all participants keep an open mind, remain actively engaged throughout the conference, reassess their positions continually, and consider creative methods for resolving the dispute. 2. Statements inadmissible Statements made by any party during the settlement conference may not be used in discovery and will be inadmissible at trial. See Ohio. Rev. Code § 2710.03. Parties are encouraged to be frank and open in their discussions. At all times, counsel, parties, and party representatives must treat each other with courtesy and respect. 3. Potential issues to be discussed at settlement conference At the settlement conference, parties should be prepared to discuss the following potential issues: a. b. What are your objectives in the litigation? What issues (inside and outside of this lawsuit) need to be resolved? What are the strengths and weaknesses of your case? 4 Revised 11.22.2023 c. d. e. f. g. h. i. j. k. Do you understand the opposing side’s view of the case? What is wrong with their perception? What is right with their perception? What are the points of agreement and disagreement between the parties? Factual? Legal? What are the impediments to settlement? What remedies are available through litigation or otherwise? Are there possibilities for a creative resolution of the dispute? Do you have adequate information to discuss settlement? If not, how will you obtain sufficient information to make a meaningful settlement discussion possible? Are there outstanding liens? Should a representative of the lienholder participate in the settlement conference? What legal costs or case expenses will you incur to take the case through trial? What is the likelihood for an appeal in the event of an unfavorable outcome at trial? What additional time delay and expense will result from an appeal? C. INVOLVEMENT OF CLIENTS For many clients, this case may be the first time they have participated in litigation or in a court-supervised settlement conference. Therefore, as noted above, prior to the settlement conference, lead counsel must provide the client with a copy of, and discuss with them the matters set forth in, this Order. D. REQUESTS TO RESCHEDULE CONFERENCE OR EXCUSE ATTENDANCE Any request to reschedule settlement proceedings or excuse the in-person attendance of a named party or representative with ultimate settlement authority must be set forth in a written motion filed no less than fourteen days prior to the scheduled proceeding unless extraordinary circumstances prevent such timely filing. In such case, the extraordinary circumstances must be outlined in an affidavit or declaration from the party or representative accompanying the motion. 5 Revised 11.22.2023 If there is a request to reschedule the settlement conference, the moving party (or parties, if it is a joint motion) must confer with all other counsel and propose no fewer than three alternative dates that are agreeable to all participants. Any request not complying with the above provisions will be denied. Telephone calls or emails requesting that settlement proceedings be rescheduled or that named parties/party representatives be excused will not be entertained. IT IS SO ORDERED. Dated: Click or tap to enter a date. 6 Revised 11.22.2023

=== SS Initial Order ===

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION XXXXXXXX, CASE NO. Plaintiff, JUDGE Choose an item. vs. MAGISTRATE JUDGE DARRELL A. CLAY COMMISSIONER OF SOCIAL SECURITY, INITIAL ORDER Defendant. This action, brought pursuant to 42 U.S.C. § 405(g), has been referred to me for entry of a Report and Recommended Decision, or, with the consent of the parties, for entry of final judgment pursuant to Local Rule 16.3.1. To ensure a prompt and efficient decision on the issues presented, IT IS HEREBY ORDERED that the parties are to comply with the following requirements: Plaintiff’s Mandatory Notice to the Government: 1. Pursuant to Local Rule 16.3.1(c), Plaintiff’s counsel must include in the complaint the last four digits of Plaintiff’s Social Security number. Immediately following filing of the complaint, the full Social Security number of the claimant, or the worker on whose wage record the application for benefits was filed, must be provided in a written disclosure statement to the United States Attorney’s Office via electronic mail at [email protected] and [email protected]. Notice of this disclosure must be filed with the Court, either by separate filing or included as an allegation in Plaintiff’s Complaint. If the Plaintiff’s application for Social Security benefits was filed on another person’s wage record, that person’s Social Security number must also be included in the Complaint. 2. Plaintiff must cause the summons and complaint to be served on the defendant in the manner specified by Fed. R. Civ. P. 4(i) within 21 calendar days of the date of the filing of the complaint with the Clerk of Court. - 1 - Revised 6/16/2021 Answer and Administrative Record: 3. Defendant is granted a maximum of 60 calendar days after notice of the complaint is served on it to file an answer and certified transcript of the administrative record. 4. In accordance with Local Rule 8.1(d), transcripts of the Administrative Record are not available online and may be filed without redaction. Plaintiff’s Brief on the Merits: 5. Plaintiff must file its Brief on the Merits within 45 calendar days of the filing of the Answer and Administrative Transcript. Pursuant to Local Rule 16.3.1(e)(4), that pleading must be no more than a total of 25 double-spaced pages in length, must be captioned as “Plaintiff’s Brief on the Merits,” and must conclude with a statement of the relief sought. While a 45-day period for filing is permitted under the Local Rules, submission should be filed at the earliest possible date it is completed. 6. If Plaintiff’s Brief on the Merits is not filed within 45 calendar days after the answer, the case may be subject to dismissal for want of prosecution without further notice. 7. The Plaintiff must also file a supplement to its brief consisting of a chart summarizing the evidence in the transcript supporting its arguments. The supplement must be in a format substantially similar to the attachment to this Order. Defendant’s Brief on the Merits: 8. The Defendant’s response to the Plaintiff’s submission must be filed within 45 calendar days thereafter, must be no more than a total of 25 double-spaced pages in length, and must be captioned as “Defendant’s Brief on the Merits.” If no submission is filed within that time, review will be undertaken based on Plaintiff’s Brief only. While a 45-day period for filing is allowed, this Court expects that such submission will be filed at the earliest possible date it is completed. Plaintiff’s Reply Brief: 9. If Plaintiff chooses to respond to Defendant’s Brief, Plaintiff may file a reply brief of not more than 10 double-spaced pages within 14 calendar days from the filing of the Defendant’s Brief. Plaintiff’s reply brief must only address issues raised in Defendant’s Brief and must not reiterate arguments previously presented. - 2 - Extensions: 10. This Court will not grant extensions of any filing deadlines except for good cause shown. Any request for an extension of time must be filed at least five calendar days prior to the filing deadline, or the request will be denied. If a party files a second (or subsequent) request for extension of any deadline, the request must be accompanied by an affidavit or declaration under oath setting forth extraordinary cause. Requirements for Briefs: 11. Each party’s brief must contain: a. b. An enumerated Statement of Legal Issues involved in the case. A Statement of Facts setting forth the facts essential to the determination of the action. The Brief must cite, by specific transcript page number, the pages relating these facts. Citations to the Administrative Transcript must refer to the page number indicated at the lower right-hand corner of the document and not to the PageID # at the top of the document. Each party’s Statement of Facts must accurately recite the record without argument, coloring, or spin. c. An Argument containing the party’s analysis and advocacy concerning the issues to be decided. Plaintiff’s Argument must address each of the Commissioner’s findings that Plaintiff claims is not supported by substantial evidence by citing specific references to the evidence in the transcript supporting Plaintiff’s arguments. Defendant’s Brief must specifically respond to the issues raised by Plaintiff and must contain specific transcript references to the evidence that the Commissioner claims sustains the position that substantial evidence supports the decision at issue. Briefs must cite concisely the relevant statutory and case law supportive of the party’s position. Any facts recited in the Argument must also be set forth in the Statement of Facts section of the brief. The arguments must be preceded by headings identifying the claimed errors. d. A Conclusion setting forth the specific relief sought by the party. 12. The parties must fully and fairly present to the Court all relevant evidence in the record, both favorable and unfavorable. A full recitation of all relevant evidence, including the claimant’s relevant medical history, must also be presented. General references to the medical record or the Administrative Law Judge’s summary of the facts are insufficient. - 3 - 13. Any factual allegations or arguments relying on the record that either do not cite to the record or are unsupported by the record citation will not be considered. The Court will deem that the parties have waived reliance on any evidence not included in the briefs or the required supplement. IT IS SO ORDERED. Dated: Click or tap to enter a date. DARRELL A. CLAY UNITED STATES MAGISTRATE JUDGE - 4 - IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION SUPPLEMENT FOR SOCIAL SECURITY APPEALS – PLAINTIFF All items marked with an * require citation to the Administrative Record Case Name: Case No. ______________________________________________________________________ 1. 2. 3. 4. 5. Type of application(s)*:_____________________________________________________ Date of application*:_______________________________________________________ Disability onset date*:______________________________________________________ Date of expiration of insured status*:___________________________________________ Vocational factors: Date of birth*: ____________________________ Age*:__________ (at time of hearing) Education (last grade completed)*:___________________________________________ Past work experience*:____________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Last work experience*: ____________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 6. Basis of ALJ’s decision*:___________________________________________________ (e.g., non-severe impairment, ability to perform past relevant work, grid, vocational testimony) 7. If the plaintiff bases the claim on a specific injury, state the specific injury*:___________ 8. If the plaintiff bases the claim on a medical condition or disease, specify the condition or disease*: 9. If the plaintiff bases the claim on the opinion of a treating physician, summarize the opinion as it relates to the disability claimed only*: Case Name: Case No.: FACTS - HEARING TESTIMONY Page No. Witness Details Case Name: Case No.: REPORTS, OPINIONS, OR NOTES OF PHYSICIANS/PROFESSIONALS Physician’s/Professional’s Name: ________________________ Specialty: __________________________________________ Classification: □ Treating □ Examining □ Records Review Only Page No. Date Observation Case Name: Case No.: REPORTS OF MEDICAL TESTS: Page No. Date Test Performed Results/Conclusion Case Name: ___________________________________________________________________ Case No.: OTHER MEDICAL EVIDENCE: Page No. Date Description Details