Twitter–@JudgeKopf

Thanks to everyone for the great advice  in response to I am a twit ’cause I don’t know whether to twitter–help me! I have decided to use Twitter in the manner suggested by Rebecca Lefler. That is I have linked a Twitter account with this blog platform. If I have done everything correctly, when I post something on this blog a notice should go out via Twitter. I have taken Ryan Killian’s suggestion that I use “@JudgeKopf” to identify myself on Twitter.

I have also considered whether I will generate original tweets or respond to tweets from others. For now, I won’t. There are several reasons for this. However, I will see how things play out. If, after I have some experience, I think that this very “short form” medium is worthwhile for original content or that it would be useful and not too time consuming to respond to others, then I might change my mind. But, for now, don’t expect a tweet from me that is anything other than a WordPress generated announcement of a post (again, assuming I configured the two systems correctly).

You’re advice was generous and helpful. I truly appreciate your willingness to share your knowledge.

RGK

PS. I have one additional request for help. If you receive an announcement of this post via Twitter, please let me know by commenting here. That way I will know whether I configured things properly.

Judge Glasser’s elegant reminder

Judge Israel Leo Glasser is a long serving senior district judge in the Eastern District of New York. He was awarded the Bronze Star during the Second World War and later served as a law school dean. Among other things, he is known for presiding over the trial of John Gotti.

The judge has written an opinion that reminds district judges like me of the importance of admitting when you are wrong. Judge Glasser has done so in a graceful opinion that makes me extremely jealous of the judge’s ability to write clearly, candidly, and beautifully. Put simply, the opinion represents judging at it best.

After a seven-day bench trial, Judge Glasser was convinced that the doctors at the VA negligently caused a grossly overweight cab driver to die an excruciating death. He awarded the widow $5 million and the three children a total of $900,000.

After the judge heard the post-verdict motion and arguments, he decided that the $5 million award was perfectly correct but that he was wrong to have awarded the children so much money. Judge Glasser reduced the award of $900,000 to $50,000 per child.

The judge explained his error in convincing detail. Then, he wrote the following:

I am conscious of the plea made by Oliver Cromwell to the Church of Scotland in 1650 that Learned Hand believed should be engraved over the portals of every courthouse in the land, viz.: “I beseech ye in the bowels of Christ, think that ye may be mistaken.” Dillard, The Spirit of Liberty XXIV (1952). I have thought and I was mistaken. The award I made to the children was egregiously excessive and is hereby modified by awarding each child the sum of $50,000.00.

The Almanac of the Federal Judiciary quotes a lawyer who describes Glasser as “a judge’s judge.”  I can see why. Thank you, Your Honor, for reminding the rest of us of the singular importance of intellectual honesty to the role of judging.

RGK*

PS Not that it matters much, but Judge Glasser was born in 1924.

*Ashby Jones, with The Wall Street Journal, has my great thanks for suggesting that I look into this case.

Just like federal trial judges, law professors can be both pompous and amusing at the same time

Law professors and federal judges (me in particular, as evidenced by this blog) frequently suffer from the same amusing problem of egotism. Thus, reading Professor Adam Winkler’s  pompous lecture of Justice Ginsburg for telling the New York Times that she was not resigning made me smile.

His article in the Daily Beast is entitled Time For Justice Ginsburg to Step Aside to Save Her Legacy. According to his law school profile, Winkler is a “specialist in American constitutional law” at UCLA.

Given the Justice’s clear and firm statement to the Times that I blogged about here, I wonder what Professor Winkler thought he was accomplishing by essentially telling Justice Ginsburg that a UCLA law professor was unwilling to take her “no” for an answer?

I can see Ginsburg now. “Oh, my God, Adam Winkler thinks that if I don’t resign my legacy will be tarnished. Since I’m an old woman, I desperately need the advice and counsel of a 46-year-old ‘specialist in American constitutional law’ from Hollywood. So, let’s whip up a letter to Barry and tell him to line up some smart law professor like Winkler to replace me.”  That’s the ticket.

RGK

Why not institute a “Motion Day” each week for civil cases?

In response to my recent post soliciting advice about whether I should use Twitter in conjunction with this blog, Vince Powers, a really good Nebraska civil trial lawyer, made the following comment and suggestion:

Why not institute a Motion day every week.? Let lawyers practice their craft of persuasion and as sometimes happen, talk about events in the community and in their lives.

Cyber Court is not good for the parties or the lawyers, and I wonder how it is for the judges? While I don’t know for sure but I think trial judges like the interaction with lawyers. Tweeting face to face without smart phones, its all good.

If opposing lawyers actually have to meet now and then, its becomes harder to be rude and obnoxious as opposed to the easy ability to insult in faceless emails and legal papers. As Cyber Court grows, so does the decline in civility. Prosecutors and defense counsel see each fairly often, I bet they they get along much better that the many civil attorneys who just read emails that begin “I will seek sanctions unless….”

Another civil trial lawyer strongly agreed and wrote:

I couldn’t agree more with Vince’s comment above about the benefits that would come about if the court instituted a motion day, or even just scheduled intermittent status conferences so that the practitioners had an opportunity to (a) see each other, and (b) see their Article III judge before the first day of trial. (It also is crazy to me that the Article III judges require the magistrates to handle pretrial conferences; they have no authority to do anything, and an opportunity is lost to work through some critical issues that will now possibly be sprung on the Article III judge for the first time at trial).

In addition to the reasons Vince mentioned above about the value of a motion day, I also think that it would enable the parties to buy into the process more so than is now possible. While there are many sophisticated corporate parties in federal court, there are also many unsophisticated parties who don’t understand the process. It is much easier for them to accept defeat, or a harsh ruling, if they were able to walk into the courtroom, see the judge who is deciding the issue, and see their counsel argue on their behalf. When decisions are made based on papers alone, it is hard for many unsophisticated clients to accept those rulings. And frankly, it is also hard for some of the sophisticated clients to take, when they don’t know if the Article III judge understood the issue, or if a law clerk decided the issue and it received only brief attention from the judge.

I suspect that the inability to actually appear in court, and the inability to see your Article III judge before the first day of trial, is one of the reasons why civil filings have fallen off over the past decade.

No doubt it would take an investment of time from the bench to make this work, but I think it would be a wise investment…

These comments are serious. They deserve a serious response. 

I don’t believe a “Motion Day” is practical in the District of Nebraska. Here is the short list of my reasons why I think that is so:

  1. To begin with, I practiced law in the state courts of central Nebraska for 13 years under a “docket call” regime where periodically all the lawyers would assemble, sitting in the jury box and elsewhere, waiting for the judge to call their case to discuss the status of the matter and pending motions. You could be in court a half day or more waiting patiently to have your case called. More often than not, not much happened that advanced the resolution of the case. While I enjoyed gossiping with my lawyer friends and complaining about the judge (in hushed voices) at the same time, those “docket calls” were a monumental waste of everyone’s time. So, I have long held a jaundiced view of “Motion Days.”
  2. Despite my jaundiced view, shortly after I became a federal district judge, I attempted to decide summary judgment motions from the bench during a series of “Motion Days” where I scheduled several motions for resolution in back-to-back hearings. To my dismay, I found that I almost always had adjourn the matter without resolution and go back into the papers after the lawyers’ oral presentations to determine what facts were truly disputed. The oral presentations often contradicted the briefs or added factual points that were not briefed or supported by the record. That was particularly true when I pushed the lawyers about a specific factual detail. Since the federal practice frequently requires a reasoned written opinion or a detailed oral statement if the decision is announced from the bench, the extra time devoted to “Motion Days” turned out to be unproductive. I wasn’t moving summary judgment motions any faster (or better). On the contrary, I was delaying the resolution of them. That is even more of an issue now. Our internal procedures demand that we strive mightily to resolve summary judgment motions very fast, normally within 60 days of their ripe date. Ironically, this short deadline was adopted at the urging of trial lawyers.
  3. The present system for moving federal civil cases in the District of Nebraska works well. Here, magistrate judges have control over the calendars of Article III judges. The magistrate judges also handle pretrial conferences and motions except for summary judgment motions and motions to dismiss.  They also handle most criminal motions including motions to suppress and they even take guilty pleas, a practice that is quite stunning to many of our colleagues in other districts. This typically leaves the Article III judges available for trial throughout each week. For the 12-month period ending March 31, 2013, we ranked 19th (best) in the nation and 3rd in the Circuit for getting civil cases tried speedily.  In Nebraska, you can expect to get your civil case to trial in about 20 months. Only 22 civil cases out of 726 total civil cases were older than three years. This statistic placed us in the top (fastest) third of all federal district courts.
  4. Comparatively speaking, we have an extremely heavy criminal docket which takes up much of the Nebraska Article III judge’s time. In the District of Nebraska, and to the surprise of our more urban colleagues, we have the 9th heaviest criminal load in the nation when measured by criminal felony filings per judge. (Although I am a senior judge, I take a full load of civil and criminal cases.) We rank 5th in the nation for felony supervised release violations using the same standard. So, much of our time must be devoted to our criminal docket. Take this week as an example. I am trying a criminal case to a jury. The statutory mandatory minimum prison sentence is 20 years if the defendant is convicted. During the last three days, and over the lunch break, I conducted 9 felony hearings where sentences were imposed or supervised release violations were resolved in addition to handling the criminal jury trial. As a matter of fact, I allocate 1.5 hours of time per day over the noon hour on Tuesday through Friday to sentencing and supervised release matters. The point: If I devote a day a week to holding a civil “Motion Day” surely something would have to give on my criminal docket. That is not practical. Congress has decreed that criminal cases take precedence over all other matters.
  5. Because I served as a magistrate judge for over 5 years before becoming a district judge, and because we are blessed in this district to have three magistrate judges who are truly extraordinary, I am a big proponent of using magistrate judges to the fullest extent of the law. That said, in a world without time constraints, I agree that it would be preferable for district judges to handle their own civil pretrial conferences just as it would be preferable for district judges to take their own criminal guilty pleas. But holding pretrial conferences in civil cases (or taking guilty pleas in criminal cases) makes no sense to me in the real world where time is a scarce resource. That is particularly true for civil cases where only a tiny fraction of the cases ever actually go to trial. Moreover, our magistrate judges are extremely good at calling to our attention difficult issues that may arise at trial. Still further, since I do my own motions in limine after the pretrial conferences, I am not surprised very often by difficult evidentiary issues.
  6. I like civil trial lawyers and I wish I could spend more time with them. I also agree that the modern federal approach to case  management significantly decreases the interactions Article III judges have with civil trial lawyers. Sad though it may be, that is one of the inevitable costs of our national drive for efficiency.
  7. As I have discussed elsewhere, it is true that the Nebraska’s civil docket is shrinking. While one can debate the reasons for that decline, it also provides good news for the civil trial lawyers whose cases remain in federal court. That is, we are, perhaps, on the cusp of a real opportunity for change as a result of falling civil filings. We Article III judges may be able to take a more hands on approach to civil cases as the civil docket pressure eases. For example, I have the Beatrice Six cases involving six people convicted of a murder, but later exonerated after serving long stints in prison, who claim that law enforcement officers engaged in a reckless investigation. Due in part to the falling case load, I have handled the case progression and I will be able to conduct my own pretrial conference in preparation for the complex consolidated jury trial of those six cases.

To sum up, we Nebraska Article III judges have a great gig. We are certainly not overworked. But in my opinion we don’t have time to hold “Motion Days” either.

RGK

Four Minute Sentencing

Yesterday, while the lawyers and the jury were out having lunch, I conducted a sentencing in an immigration case. I was able to complete sentencing in a new world record time of about four minutes. It was an immigration case. Since the guy had been in custody for several months, everyone knew the sentence would be time served with no supervised release to follow. That’s essentially what the Guidelines called for. Indeed, the government agreed that such a sentence was appropriate. The defendant apologized but noted he had returned to the US to support his three children who were American citizens. He did so working on a garbage truck. Anyway, ICE will now pick him up, and since he waived a deportation hearing, off he will go across the border on a bus. If I were him, I would quickly return to continue to support my kids. I would dive a little deeper into the shadows, but I would return. The present drill seems pretty useless. But what do I know.

RGK

A “shy boy”

The post regarding Shon Hopwood found its way to the New York Times in an article written by the highly regarded Adam Liptak. The article is entitled The Robber, the Judge, and the Case for Leniency. Initially, I am glad that Shon’s story of redemption is receiving attention. I am a (happily) chagrined that Shon’s story of redemption starts with my mistaken gut. But, that is not why I am writing this post.

In the article, Mr. Liptak, a wonderfully able reporter, wrote the following, “Judge Kopf, who sentenced Mr. Hopwood, also declined to talk, on the interesting theory that ‘such interviews could be seen as backhanded endorsements of the media companies’ requesting them.” (My emphasis.) I think Mr. Liptak was being kind.

When I turned down Mr. Liptak’s e-mail request for an interview, my return e-mail stated the following:

Adam,

I have turned down all interview requests related to my blog which are generated by media sources that are run for profit. I have the perhaps goofy view that such interviews could be seen as backhanded endorsements of the media companies by a judge. So, with respect, I respectfully decline your kind invitation. If it makes you feel any better, I turned down the Huff Post too. (That was sardonic!)

All the best.

RGK

In his article, Mr. Liptak could have made me out to be an even bigger idiot had he decided to get (justifiably) snarky about my inarticulate reasons for telling him to pound sand.  So, I want to say: “Thanks Adam.” (I am about to pee my pants over the opportunity to call a New York Times writer by his first name!) But that’s not why I am writing this post.

So, why I am writing this post? I am writing this post because I want to make clear why I don’t and won’t do interviews with the profit-making media about this blog. My reasons are these:

* If I give one interview to a member of the commercial media, I would feel obligated to give other interviews on the same subject to other members of the for-profit media. I don’t want to take the time required to be even-handed.

* I am a control freak. I can control what I write in this blog. I can’t control what is written by someone else about what I said orally during an interview.

* Because blogging is not wide-spread among federal judges, I am aware that I am pushing ethical boundaries. It might not seem that way, but I spend a lot of time considering the ethical pitfalls to avoid when I write a post. I simply don’t want to worry about trying to figure out those same ethical boundaries when giving interviews about this blog.

* Finally, and maybe this is the best reason, my beloved Grandmother used to call me “a shy boy” and, while no longer a boy, her characterization otherwise remains accurate. The great thing about writing a blog (or a law review article or a book for that matter) is that you can hide behind the words you write without otherwise revealing yourself in an unguarded moment. That is very important to me.

Now, some of you may remember that I participated in a radio interview with two Irish lawyers. (Incidentally, it was that interview that caused me to think through the whole business of interviews.) As I earlier wrote, I believe the Irish interview was a horse of a different color.  That is because the program was on the Irish equivalent of our public radio network, it was program dedicated exclusively to legal affairs, and it was conducted solely by two Irish trial lawyers.

As I reread this post, I try to put myself in the mind of the reader. Having done that, I suspect that many readers will find this post suitable for the “who gives a shit” bin. If so, I am sorry. But, to stay with a theme developed in other posts, my “gut” tells me that I should clearly explain myself. While my “gut” sucks in some situations, I don’t think this is one of them.

RGK

An Australian boy in winter

Fletcher is my first grandson. He “belongs” to Keller and Stacey and they live in Albury, Australia.  Aubury is a couple of hours, give or take, north of Melbourne.

It is winter Down Under. I miss Fletcher and, sadly, I have only seen him once when he traveled back to the US in the summer of 2012. For now, I have to content myself with photos. Here is a beautiful one of the curly-headed little boy taken by Stacey.

fletcher

Some things are more important than others.

RGK

Justice Ginsburg shows us (again) that law is not politics

I have decried the calls for Justice Ginsburg to resign and the blatantly political calculations that drive those calls. See here and here. In a rare interview with the New York Times on Sunday, Ginsburg explains that she will retire when her health declines and not before. She is unconcerned with the political leanings of the President who will nominate her successor. And that is true even though the Justice believes that the present Court is unusually activist.

Thanks to Justice Ginsburg, even legal realists (like me) can still believe that law is not politics.

RGK

PS Again, thanks to How Appealing. What an incredible free resource.

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