File Your Reply Brief in September, not October
Here’s some fun data:
*FastCase results for: ERISA AND (“long term disability” OR “short term disability”)
ERISA motions are decided in March. I created this table from data roughly capturing the ERISA benefits decisions in the district courts between 2018 and 2022. Every single year, the most motions were decided in March.
A LOT more. March 2021 had the highest decision count with 50 decisions, double the median of 25. And March had double the median decision rate every year except 2020.
Really, in late March. The law clerk has a late-March vacation request? Denied.
Why is this happening? Enter the “Six Month List”:
Federal judges have virtually total control over their dockets, but Congress initiated some naming-and-shaming to encourage timely decisions with the Civil Justice Reform Act of 1990. By law the United States Judicial Conference issues semiannual reports on pending cases in the federal system.
Those include judge-by-judge lists of “Motions Pending More Than Six Months” and “Civil Cases Pending More Than Three Years.”
Judges can report the reason for long-pending motions (complexity, draft status, etc.).
Get faster results by filing to take advantage of the reporting window: To make the naughty list, a motion must be “ripe” (fully briefed) before the first day of the reported period.
Example: If a reply is filed on September 29, the motion will be pending “more than six months” on the following March report. But if the reply is filed on October 1, it won’t be counted as pending for “more than six months” until September 30.
A laggard judge can take steps to stay clear (I have a practice story for drinks), but the data suggests a straightforward lesson: for the best chance of a timely decision, set your dispositive motion schedule with replies due before March 31 or September 30.