A very ugly truck

I am excited.  Dare I say, aroused.

I just received the first submission for the ugly truck contest.  Submitted by a career law clerk for a magistrate judge, the following nomination language came with it:

My husband’s father gifted the truck to us last year. It formerly belonged to his Grandfather and is fondly referred to as “Big Red.” The F-150 has nice lines and an obvious dose of Americana. But don’t let those bits of beauty fool you, this truck has rust, missing paint (see hood line), and purple tint. I was in first grade when this truck rolled off the lines, so I assume that in the early nineties, purple tint was acceptable. The tint is now bubbling off the windows. Big Red does not have A/C, and though my husband denies it, I am positive that some rodent has eaten into the exhaust line. For this reason, any rides in Big Red must be windows-open adventures, and even with the windows open, one comes out reeking of exhaust.

 We use this truck to perform tasks our friends pay other people to complete: hauling mulch, taking trash to the dump, dropping metal at the scrap yard, and moving members of our families to various homes. Our dog Molly particularly loves the scrap yard, where the metal-weighing lady gives her treats. In sum, our ugly, smelly truck makes us feel like self-sufficient rural people, when in fact we live in the suburbs and shop at Trader Joe’s.

Because I am so taken with this heart-felt submission, I have decided to publish the photo, without intending to declare a winner, however.  Having done so, I will offer a grand prize (yet to be determined) to the ultimate winner.  But for now enjoy!

My God!  Its four wheel drive with great rims!

My God! Its four-wheel drive with great rims!


The gracious, dear and strawberry tea

"Milan" is a from the Slavic element mil meaning "gracious, dear."   Milan's dad is a Czech via Canada.  Milan's dad and our daughter met in Kuwait.

M’s name is derived from the Slavic element “mil” meaning “gracious, dear.” His dad is a Czech via Canada. M.’s dad and our daughter met in Kuwait.

Our daughter (the bartender in an earlier post) and her husband live and teach school in Shekou (a part of Shenzhen), China, right across the bay from Hong Kong.  They have two children, P. and M.  If we are lucky, we see P. and her brother M. once a year, so video and photos of the children plus Skype have become staples in our lives.

In the photo, the squirmy little boy on the Article III lap is M.  I tried to take his cap, but he was having none of it.

As for P., she recently appeared in the school’s charity fund-raiser for less fortunate Chinese children.  It was called: “Strawberry tea.”   The video of P. and her mates appears below.

P., who is quite tall but only three, is the very serious western child kneeling next to the Chinese child (who throws a fit).  The three-year old kids were supposed to kneel, and the older children stand.

Some things are more important than others.


Reducing law school from three to two years is lunacy

There is a movement to reduce law school education from three years to two years.  That is crazy.  If anything, we should extend law school for two additional years and divide that additional education into two skill tracks.  One track would be “office practice” and the other “trial practice.”   These two years would emphasize learning by doing–experience over doctrine.  The great need for legal aid could, in some small part, be addressed by such additional training.

Photo credit:  David Ortez per Creative Commons license.

Photo credit: David Ortez per Creative Commons license.

I am not insensitive to the enormous financial burdens that law students undertake.  Additionally, I am sensitive to the mounting pressure on law schools to address the financial concerns of their students while also trying to find the money to maintain credible graduate educational programs.

The foregoing said, I am far more concerned with the quality of the lawyers we turn out.  For Christ’s sake, kids right out of school are out there now charging real people real money.  The great shame of the profession and the legal academy is that we have always allowed young law school graduates to go out and practice law with virtually no experience.

The competence of young lawyers fresh out of school is middling at best, and, frequently, abysmal.  It will be far worse if the training is reduced.  Truly proficient lawyers should be our goal.  If that is the goal, more rather than less time should be required.


Limiting the participation of counsel during jury selection (or how to make a lawyer’s head explode)

Photo credit:  Robotclaw666's photostream per Creative Commons license.

Photo credit: Robotclaw666’s photostream per Creative Commons license.

Lawyers hate it, but in the federal courts the participation of lawyers in jury selection (voir dire) is typically quite limited.   For among other reasons, this is because the Supreme Court has vested very broad discretion in the federal trial judge to pick a jury in the manner the judge thinks best:

No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146, (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594–595  (1976) (internal quotation marks omitted)

Skilling v. United States, 130 S.Ct. 2896, 2917  (2010) (in a very high-profile case, jury selection that took 5 hours, where lawyers were not allowed to ask initial questions and instead the judge did the initial questioning, complied with the Constitution; observing that other measures were used by the judge to assure impartiality such as giving more than the required number of peremptory challenges, allowing follow-up questions by the lawyers and using written jury questionnaires) (certain citations omitted).

Federal Rule of Civil Procedure 47(a) likewise gives the federal trial judge a lot of leeway to keep the lawyers quiet:

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

Similar provisions govern criminal cases.  See Federal Rule of Criminal Procedure 24(a).

My Philosophy:  There are two views about jury selection.  One is the English rule.  The other is the American rule.

Predominant in the federal courts, the English rule assumes that lawyers should be seen and not heard during jury selection because the one and only reason for questioning jurors is to obtain a reasonable, but not perfect, assurance that the prospective panel is impartial.  Basically, there is only one question for a prospective jury panel member, and that is: “Do you know anyone involved in the trial?”  The English rule is judge driven based upon the belief that the parties really don’t want impartiality, they want to win.

The American rule is premised on the idea that jury selection is intended to insure impartiality on a deeper (cosmic) level.   The American rule is based upon the notion that impartiality is best achieved when the lawyers engage in a competitive enterprise to bias the prospective panel toward the positions of their respective clients.  Predominant in the state courts, the American rule is lawyer driven.

Can you guess what rule I favor?  Right.  I favor the English rule.  Actually, and as you will see if you read further, I favor a modified English rule.

United States District Judge Robin Cauthron from Oklahoma, a very experienced trial judge, who served on the state bench and as a United States Magistrate Judge prior to her appointment, summed up my thoughts pretty much exactly:

The last thing any lawyer wants is a fair jury. That’s not what you want. You want a jury that’s going to find for your client, and every lawyer-conducted voir dire is designed to influence the jury. It’s not designed to find fair and impartial jurors. If you’ve ever seen a trial proceeding in England, the only question that’s asked is, “Are you related to the parties?”

The point is that you have an impartial jury, not one that’s inclined to find in your favor but one that’s impartial. Now, knowing that, I know it’s very difficult for lawyers to establish a rapport with a jury and that you feel that disability going in. I have been on the state bench as well as the federal bench, and it was very common in state trials, criminal trials, for the jury selection process to take a week and for the trial to take one day. Now, if you think there is not a lot of unnecessary stuff going on in jury selection that takes that long, you’d be wrong. It is that experience, I think, that causes the federal court to be so restrictive in its voir dire practices.

PANEL TWO, Robin Cauthron, Dee Benson, Bruce Hall and David Cunningham, Tenth Circuit Judicial Conference, Santa Fe, New Mexico (2000), available as a law review article entitled WHAT TRIAL JUDGES WOULD LIKE TO SAY TO TRIAL JUDGES, 31 N.M. L. Rev. 241 (2001).

My Process:

What I will next do is to describe the process of jury selection I follow for both civil and criminal cases, a process that I have used for more than 25 years.  I will break the process into component pieces.  After I describe each component of the process, I will explain why that component is utilized.

  1.  Prior to trial, counsel are provided with a lot of written information relevant to jury selection. Counsel are provided with a jury questionnaire completed by individual prospective jurors that was developed by lawyers serving on our Federal Practice Committee.  The lawyers must destroy the questionnaires after the trial.  The one-page document provides the lawyers with details lawyers think are important.  The form of the questionnaire is available on our website. From my perspective, the questionnaire is a sop to the lawyers and, more important to me, makes it very difficult for a lawyer on appeal to argue that my limitation on lawyer voir dire was reversible error.  Additionally, for both civil and criminal jury trials, I have prepared hand-outs that are available to the lawyers on our website.   The hand-outs describe in greater detail much of what is written in the following portions of this post.  The hand-outs include (a) the “short list of my eccentricities,”  (b) the background questions I ask jurors to refer to when introducing themselves, (c) the questions I typically ask during voir dire and (d) my stock preliminary jury instructions.
  2. After I have completed my jury orientation (described in an earlier post), the prospective jurors are brought back into the courtroom. Out of the entire group, a smaller group of potential jurors are selected at random using a computer program. For criminal cases, I typically seat 31 potential jurors out of the entire group in order to get 12 trial jurors plus an alternate.  I typically seat 14 potential jurors for a civil case in order to get 8 trial jurors.  After these prospective jurors are seated, the lawyers are given a huge seating chart (about 3 feet square) and the name of each seated juror, together with brief biographical  information, is shown in the boxes.  The boxes correspond with the seat where a particular juror is located.  This chart provides the lawyer with an easy reference while questioning the jury.
  3. The prospective jurors are sworn.  The jurors are assured that the questioning is not intended to pry or embarrass.
  4. By that time, the courtroom deputy has provided each prospective juror with a one-page document entitled “Background Questions.”   Basically, the questions ask for name, city of residence, marital status, and employment status of the juror.  Then, each prospective juror is handed a microphone and in turn speaks aloud and introduces himself or herself to the lawyers by reciting the information asked for on the sheet.  This is done to help each panel member relax and become accustomed to speaking in open court.  The juror remains seated.
  5. The lawyers are asked to introduce themselves and any colleagues or case agents or parties seated at counsel table.  The lawyers are then asked to recite aloud the names of witnesses who may be called to testify.  The  prospective panel members are asked to keep in mind any name that sounds familiar.
  6. I then begin to question the panel.  My questions are directed to the panel as a whole.  For both criminal and civil cases, I have a list of questions I typically ask.  Counsel are provided with a copy of that sheet prior to trial.  If a juror responds to one of my questions, the juror does so by using a microphone.   Jurors are told that if a sensitive matter arises, and they would prefer not to speak about the matter in front of everyone else, they may come to the bench.  If that happens, white noise is pumped into the courtroom and the lawyers and I speak with the juror at the bench.  The bench conference is recorded as is the entire process of jury selection.
  7. After I am done questioning, I allow counsel to inquire about anything they wish.  Each side has 20 minutes, and the time limit is strictly enforced.  Counsel must use the podium, and must not stray from the podium.  Counsel may challenge any panel member for cause.  If so, that challenge is done at the bench outside the hearing of the prospective jurors, white noise is pumped into the courtroom, and the conference is recorded.
  8. After each side has questioned the panel, and after each side has “passed the panel for cause,” the lawyers then exercise their peremptory challenges.  The courtroom deputy (CRD) takes a reduced version of the seating chart, and stands between counsel and their tables.  Starting with the plaintiff, she hands the seating chart to the first lawyer who exercises a challenge by striking the name from the seating chart and placing the lawyer’s initials next to the strike.  The second lawyer follows suit.  The process continues back and forth until a jury has been selected.  During this time, the prospective jurors remain in the courtroom so the lawyers can put a name with a face.  While the lawyers and CRD are working, I generally give the panel members a little talk about the history of the court.
  9. My goal is to complete the jury orientation and pick the jury before noon.  I accomplish that task almost 100 percent of the time and no matter the complexity of the case.

In summary, there are as many ways to pick a jury as there are judges.  I don’t pretend that my way is the best.  I am convinced, however, that the method I employ is efficient and results in a jury that is more or less impartial.   In the real world, that is all that should be expected.  Besides, I like watching exploding heads!


The hoped for essence of this blog

If you haven’t read it, I heartily recommend Lynne Olson’s Citizens of London (Random House 2011).  In it, Ms. Olson tells us about three great Americans who, while living in London, stood with Britain in its darkest and finest hour during WWII.

One of those great Americans was the broadcaster Edward R. Murrow.  In Olson’s book, I ran across something that Murrow said that perfectly encapsulates why I am writing this blog.  Olson quotes Murrow this way:  “It is difficult to explain the meaning of cold to people who are warm, the meaning of privation to people who have wanted only for luxuries. . . . It is almost impossible to substitute intelligence for experience. Id. at p. 142 (emphasis added).

Photo credit:  Wikimedia Commons.

Photo credit: Wikimedia Commons.

So much of legal discourse these days turns Murrow’s dictum on its head.  We see it in the academy and we see it in the Supreme Court.  We see it in the law reviews.  Over wine and cheese or beer and bratwurst, the Federalist Society and the American Constitution Society revel in it.  We glorify intelligence and denigrate experience.

While claiming not one iota of his talent, I stand with Murrow.  That’s why I am writing this blog.


Judge Heaney and the Silver Star

On Friday, I posted about Judge Ross and the judge’s valiant service in the Army Air Corp during WW II when he was twice awarded the Distinguished Flying Cross.  Today, I want to remember Judge Ross’ dear friend, Judge Gerald Heaney, who also served for many years on the Eighth Circuit Court of Appeals.

Judge Ross and Judge Heaney could not have been more different when it came to their politics.  Both men were very “heavy hitters” on the national political scene and in their respective political parties.  Nonetheless, both men had a strong kinship when they served together as judges.   Their friendship was evident and very moving to those of us who had the opportunity to see it first hand.   I believe that  their mutual respect and true affection arose out of the fact that both Judge Ross and Judge Heaney had a perspective about what was truly important.  In my view, that perspective was forged during the war.

Judge Heaney was an officer and an army Ranger.   He won the Bronze Star, but it was the Silver Star for heroism on D-Day that speaks most loudly.  Remember the old movies showing someone rushing a machine gun hidden in a concrete pillbox?   In Judge Heaney’s case, life imitated art.

Here, in the sparse language the military favors, is Judge Heaney’s Silver Star citation:

FIRST LIEUTENANT WILLIAM G. HEANEY, 01309733, Infantry, United States Army, for gallantry in action in connection with military operations against the enemy on 6-7 June 1944 in France. Upon landing at Omaha Dog Green Beach, Vier Ville-sur-Mer, Lieutenant Heaney and his men were pinned down by heavy enemy machine gun,mortar, and artillery fire. With utter disregard for his personal safety, Lieutenant Heaney stood up, induced his men to continue the attack and led them across the beach to accomplish their mission in due operational time. The undaunted courage and leadership demonstrated by Lieutenant Heaney reflect great credit upon himself and are in keeping with the highest traditions of the Armed Forces.

Reprinted in Judge Myron Bright’s letter of nomination of Judge Heaney for the Edward J. Devitt Distinguished Service to Justice Award for 2005.

Image credit:  Wikimedia Commons.

Image credit: Wikimedia Commons. The Silver Star is awarded for “gallantry in action against an enemy of the United States.”

I had the great good fortune to know Judge Heaney.  He was a quiet, gentle and kind person with a towering intellect and a deep concern for the common man.   Sadly, Judge Heaney is gone now.  Nevertheless, we need to remember him for the extraordinary courage he displayed during two days in June, 1944 and for so much more.


Crossing the line

I don’t know why, but my thoughts turned this weekend to a time fairly long ago when,as a magistrate judge,  I sentenced people to jail for crossing the line at  StratCom headquarters at Offutt Airbase in Omaha.   These folks, part of the Catholic Workers movement, protested against the military and nuclear weapons by crossing a line at the base entrance.  Two fellows in particular come to mind.

One was Father Frank Cordero.  Big Frank, a former wrestler, raised hell throughout Iowa and Nebraska protesting against various and sundry things.  He was (and I presume still is) a smart ass.  One time, after I sentenced him to jail for six months, he surrendered to the US Marshals with a cross made out of hack saw blades.  I think he ended up at MCC in Chicago.  If he did, he wasn’t laughing.

Photo credit:  Frank Cordero and

Photo credit: Frank Cordero and No-Nukes.org

The other fellow I came to know was Rich.  He crossed the line, but agreed to abide by probation.   I learned that Rich operated a shelter for men down on their luck and often just out of prison.  About that time, I married Joan after the death of my first wife.

True to her faith, Joan insisted that my kids learn about the poor.  So, I contacted Rich.  Over the next several years we spent Thanksgiving with Rich’s guys delivering turkeys in North Omaha.  It opened eyes wide.  Later, we lent Rich a little money to keep the shelter running.  Rich repaid us in full.  But, he gave us so much more.


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