More on Federal Public Defenders and the sequester

If you care about federal criminal law, please read “Sequestration’s Biggest Victim: The Public Defender System.”  It appeared in the Huffington Post yesterday.  While the Huff Post is not my favorite, the article is a very good one, and well worth reading.


Mobster machines and a federal trial judge who loves them

I love history and I love old cars.  I particularly enjoy reading history about mobsters and their snazzy machines.

Al Capone drove an armored 1928 Cadillac until he lost it to the feds after a tax trial. President Franklin D. Roosevelt used that confiscated machine shortly after Pearl Harbor and until 1942. Before that, the President’s vehicle was just a regular car.  After the beginning of the War, the Secret Service worried that German or Japanese assassins might try to kill the President.  So they took Al’s car out of federal storage. Then, they devoted it to the protection of the President.

The story is told here and the photo below of that wonderful vehicle is credited to Federal

1928.cadillacI have my own version of Al’s wonderful machine.  The 2005 Cadillac is pictured below.  I just bought the used beauty with about 10,000 miles on it. If I told you that I bought it from a mobster, you might not believe me.  So, let’s leave the origin to the mists of time.  (Truth be told, I stole it from an old lady with whom I am related by marriage–I have no shame.)

Anyway, displaying the photo will probably drive our judicial security guy absolutely crazy, but have no fear. Just like 1928 Cadillac, I am pretty sure my 2005 Cadillac is armored.  It certainly drives that way.

But even if it isn’t able to withstand a rocket-propelled grenade, no sane person could pass up a dark blue buggy that is roughly the size of the Titanic particularly when you realize that it is adorned with faux gold ornaments, gold striped tires, and a ridiculous but really cool tan cloth top featuring a string of wonderfully garish “golden” snaps. Capisce?


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When the money ends

I have given Vince, a really great local plaintiff’s trial lawyer and all around good guy, a bunch of grief about why civil jury trials are drying up in federal court. I lay the “blame” mostly on changes taking place in the legal economy. OK, for a moment, let me get off Vince’s back.

If civil jury trials are drying up in federal courts, what is going to happen to the high and mighty defense firms?  For a penetrating review of “big law” and the fear that the economy as it regards lawyers has fundamentally changed (and not for the better), please read the utterly absorbing cover story The Last Days of Big Law: You can’t imagine the terror when the money dries up in the New Republic issue out today on the news stands. Noam Scheiber wrote the piece. He is a wonderful writer and a brilliant fellow.

The times they are a changing. Plaintiffs’ lawyers are not the only ones that should fear the coming “dark ages.”


PS Hat tip to How Appealing (July 21, 2013).

Riding the rails

Photo credit:

Photo credit:  Lincoln, Nebraska rail yard with Capitol in the background.

My family has been involved with railroads for a long time. Brother Kip was a locomotive driver all of his professional life. My nephew followed his dad and “steams” up and down the rails between Chicago and Pittsburgh as we speak.  The man I regarded as my grandfather (Gordo was his nickname) served as a brakeman.  (He was also adept at taking vacations on the railroad under the FELA, but that’s another story.) I worked in the rail yards walking among the moving cars helping the trainmen make up trains.

Rail yards are very dangerous places, particularly for transients. My brother remains troubled by the transient he ran over and killed as the sad drunk lay on the rails as Kip pulled a two-mile long coal train into the yards one dark night.  Even at very slow speeds you can’t stop a train quickly even when the huge high beam clearly framed the poor guy’s drunken body in the stark glare hundreds of yards ahead. A blaring, but ignored, horn simply punctuated the horror.

Yesterday, in the Lincoln Journal there was a story about a transient and the railroad.  The article was short, but poignant.  I reproduce it in toto here:

July 20, 2013 11:27 am • By the Lincoln Journal Star

A transient man lost his right hand and was likely to lose a foot after being dragged 400 feet by a Burlington Northern Santa Fe train in west Lincoln early Saturday.

The man, who is 23, was in critical condition but is expected to survive.

Police say he was with a woman and two dogs when one of the dogs, a puppy, ran under a stationary train west of the Hobson Yard shortly before 2 a.m. The man reached under the train, which then started moving.

The woman accompanying him was able to flag down a person on the train.

The train severed the man’s right hand, causing serious damage to his right arm and left leg and foot, Lincoln Police Capt. Michon Morrow said.

Morrow said she wasn’t sure where the man is from. The 24-year-old woman who was with him is from New York.

The puppy is OK, Morrow said.

There is good in the world. We sometimes find that good in very odd places. In our cynical business of the law, little stories like these are worth savoring. They are good for our poor depleted souls.


A peek behind the curtain: The governance of an Article III district court

One of the purposes of this blog is to describe in realistic terms what really goes on in the federal trial courts.  In that regard, how each of the federal trial courts govern themselves is frequently unknown to the public, and has received little academic interest. Moreover, and you would only know this from the inside, the governance of a federal trial court can be messy, nasty and very controversial.  In this post, I want to briefly describe how our court governs itself.

Unlike virtually any other federal trial court with which I am familiar, the District of Nebraska uses a wide open and democratic form of government. Anyone may read our governance order on our external web site (here).

The important elements of our governance structure can be described as follows:

  • Although the statutes, in very brief and minimalistic terms, provide that the chief judge and the active judges have the power to govern the court, these judges have committed to an open and inclusive structure.  While there is a “safety valve” to insure that in rare cases those judges could override our open structure, that has never happened.
  • We meet four times a year as a group.  That group is called the Nebraska Judicial Council.  Every matter of significance goes through the Nebraska Judicial Council.
  • Every judge–active Article III judge, senior Article III judge, magistrate judge, and bankruptcy judge, can put an item on the agenda.
  • Every judge has one vote.  The majority governs.
  • The agency heads and their deputies–the clerk of the district court, the clerk of the bankruptcy court, the chief probation officer, and the chief pretrial services officer–actively participate in the meeting, although they do not vote.
  • The United States Attorney, and her deputy, the Federal Public Defender, and his deputy, the Chair of the Federal Practice Committee (representing lawyers who practice in our court), the Criminal Justice Act panel representative (representing private lawyers who take criminal appointments), and the United States Marshal and his deputy, actively participate in the meeting, although they do not vote.
  • Real debate goes on in these meeting, and they are often blunt and heated.  Only personnel matters or especially sensitive core judicial matters are debated in executive session where only the judges are present. Executive sessions are a rare exception and not the rule.
  • Detailed minutes of the meeting of the Nebraska Judicial Council are made available to the participants and every employee of the court.
  • When the Nebraska Judicial Council is not in session, the active district judges serve as an executive committee to decide matters that cannot await Nebraska Judicial Council approval. Those judges come together monthly by phone.  Of course, for day-to-day administrative decisions, the chief judge acts unilaterally.  However, the default is always to take a significant matter to the Nebraska Judicial Council for resolution by all judges rather than having the active district judges or the chief judge act alone.
  • On matters of budget, the active district judges comprise a budget committee staffed by a person trained in finance and another person with a CPA certificate.  Following each meeting of the Nebraska Judicial Council, the budget committee meets and deals with budgetary issues for the quarter and coming years.  Detailed budget packages are presented, and the minutes of the budget committee meeting together with the budget committee documents are made available to every judge.  An agenda item for the budget is a part of each Nebraska Judicial Council meeting, so each judge can raise any concern he or she may have regarding budgetary matters.

I am very proud of how we govern ourselves. It is a system that is inclusive and non-hierarchical.  It presupposes that a federal district court is a joint enterprise–one in which the more key players have a voice the better the enterprise will function. While I don’t propose that our way is a model for other courts, it is worth considering.



Kopf is patently incompetent

Photo Credit: Michael Neubert's photostream per Creative Commons license.

Photo Credit: Michael Neubert’s photostream per Creative Commons license.

Patents are a major component of the lifeblood of our economy.  Yet, as a generalist judge with no training in science or engineering and very little experience with the intricacies of patent law, I am entrusted with handling patent litigation. Why does that make sense?

If I screw up, the parties may appeal to the Federal Circuit. The Article III judges on the Federal Circuit often have backgrounds in engineering and science.  For example, my friend, Alan Lourie, holds a PhD in chemistry.  Others, like Chief Judge Randall Radar, who lack scientific or engineering educations, have nevertheless devoted extensive portions of their professional careers to the study of patent law.  If specialized experience with patent law is necessary for the Federal Circuit–indeed, if a specialist Circuit court is desirable at all (and it is)–one must seriously consider why a generalist trial judge like myself, who has handled maybe 10 patent cases over the course of a career, ought to have the authority to adjudicate these types of cases.

Don’t get me wrong. Despite the title of this post, I can learn what I need in order to do a creditable job when I handle a patent case. But truth be told, it requires an enormous amount of effort that tends to significantly depress my ability to get a lot of other work done. Moreover, the chance of error–because each patent case requires relearning a highly specialized area of the law, not to mention the daunting scientific or engineering questions inherent in these cases –rises exponentially when generalist judges handle these types of case.  Indeed, in one fairly recent study nearly 35% of decisions on claim construction issues resulted in reversal.  See Student Note, Daniel Gopenko, Reconsidering the Standard of Review in Patent Claim Construction,  40 AIPLA Q.J. 315, 324 (2012) (footnote and citation omitted).

I suppose it’s a pipe dream, but it sure would be nice if patent cases were tried by more knowledgeable judges. There are a variety of ways that this could be accomplished while preserving the core protections of Article III and the right to trial by jury.  But for this very generalist judge (whose experience in the practice of law tended toward defending “dog at large” cases), the parties (and patent law more generally) would be better off with someone who knew more about what he was doing when he put on the black robe.

What do you think?


Lighting the fuse: It is time to get rid of court reporters in the federal courts

For a long time now, I have used digital audio recording, rather than a court reporter.   Digital audio recording is the marriage of a computer and a sophisticated sound system with multiple channels.  It is monitored by the courtroom deputy in real-time thus eliminating entirely the necessity of a court reporter.

Here are the reasons:

  • By uploading the digital audio recording of a trial or hearing every day to CM/ECF, the federal courts become more transparent to the public by an order of magnitude.  The whole world can listen to a trial I conduct in Nebraska for a very small cost–if I screw up, then the whole world can know it.  And, that is a VERY good thing.
  • While you will hear contrary arguments from court reporters, there is no independent, scientifically based, study that suggests that digital audio recording is less accurate than stenographic recording. In fact, the believable studies that have been conducted suggest that there is no difference or audio recording is slightly more accurate.
  • The reliability of digital audio is as good as or better than a court reporter. In fact, I had far more problems with court reporters getting sick or getting tired or their steno machines failing than I have had problems with digital audio.
  • Digital audio recording can do “play backs” and judges can annotate and make notes on their computer screen as the digital recording is made.
  • Digital audio recording saves the federal courts money.   For example, an internal study I conducted of our court three years ago indicated that the public would be saved about $110,000 per year if 3 reporters were replaced with digital audio recording.  My study was very conservative.  The Clerk’s office senior management was consulted about it and found no basis to dispute the conclusion.
  • Lawyers experienced with digital audio recording love it because they can log into CM/ECF anytime, night or day, and review the record when writing a brief or for any other reason.  A lawyer can do so without having to  pay a reporter for a transcript. Citations to digital audio are easy.  One simply refers to the time-counter used to play the audio.
  • A large federal trial court, the Eastern District of Pennsylvania, implemented digital audio recording successfully as a part of pilot project.  The District of Nebraska was also a participant in that pilot project, and our experience was uniformly positive as well.

I want to be clear. I don’t want any more court reporters hired, but I don’t want court reporters fired.  I do want court reporters replaced with digital audio as they retire or resign. Given the sequester, now is the time to begin this process. To put the matter in stark relief, for every court reporter we replace, we can devote the savings to retaining essential personnel such as federal public defenders.


Kopf’s answer to a simple question

Earlier today, I posted a simple question.  Should a defendant be required to stand when the judge hands down the sentence?  The post has now generated a fair number of comments, and they are very good ones.  Admitting that there is no correct view, I want to provide my own answer now.  I hope that his post might also generate a good discussion because this issue, in my opinion, is more important than you might think.

Kopf’s take:

  1. Whenever a judge enacts a rule or a procedure the judge ought to ask whether there is a good reason for the rule or procedure. Otherwise, the law of unintended consequences comes into play.
  2. I did a fairly detailed search of the Internet, including Google Scholar, and Westlaw, including the “all-feds” and “law review” data bases.  I failed to find any analysis of why a judge should require a defendant to stand when hearing the sentence.
  3. Watch this clip of an 18-year-old high school boy (Tony Farmer, a highly recruited basketball player) receiving a prison sentence while standing.  Then, you will see why I don’t require defendants to stand when hearing what is frequently a helluva of a long and life altering sentence.


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