Behind-the-scenes: Cases we like and loathe

Lawyer Nick Purifoy, who handles social security appeals and is located in Kansas City but who is admitted in our court and several other federal courts, asked an interesting question recently. He asked: “My colleagues and I are curious as to which kinds of cases you and your staff enjoy working on. As with any job, I imagine there are cases that you find pleasure in deciding. In contrast, there have to be certain types of cases that are a slog to work on.”  I set out to answer that question yesterday by polling my four law clerks.*

So, I am prepared to answer Nick’s question.  I will break the answer down into parts.  I will answer for myself and then the clerks.


Let’s start with cases resolved by trial, and then let’s break it down into jury and non-jury. Jim, one of my career clerks, works on jury cases with me. That is, he takes the first crack at jury instructions. Jan, my other career clerk, works on non-jury cases and assists in writing the findings of fact and conclusions of law. All the clerks handle motions. (If a clerk takes a motion, I expect it to come back to me once and in perfect and final form–I will either accept or reject it. My only instruction to the clerks is to follow the precedents and be intellectually honest.)

Jury trials:

I would rather try a criminal case to a jury than a civil case.  Why? I suppose because I have much more experience trying criminal cases. We try a lot of them. Our court ranks near the top among the 94 district courts for the number of federal criminal cases per judge (as of September 30, 2013).  We rank 8th in the nation and 2nd in the Circuit for criminal cases per judge. 

I do not like trying patent cases to juries or contract cases to juries.  This is because the instructional issues in these cases are complex.  In patent cases, I have found the model jury instructions to be incomprehensible and I don’t try many patent cases to a jury so the effort is much greater than normal. In contract cases, since we are typically applying the law of a state, there is inherent uncertainty.  But the most important problem for me is figuring out what part of a contract case is for the jury and what part of the case is for the judge. Tell me, in practical terms, what the difference is between “construction” of a contract and “interpretation” of a contract?

Non-jury cases:

I love trying non-jury cases that raise complex scientific or other technical questions like the federal partial-birth abortion case that ended in the Supreme Court. I don’t like non-jury cases where I must determine credibility of only one witness over another.  As I have said before, I am not good at making credibility determinations.


Once in a while, I will take a motion or other non-trial matter (like an administrative appeal) from one of the clerks and write the entire thing myself. This helps me manage the clerks, and I enjoy writing and research. Sorry, Nick, but Social Security disability appeals are the pits. See 42 U.S. Code § 405(g). The law is arcane and the facts (a foot or more of administrative records containing all sorts of medical information) are voluminous and must be read carefully because the poor Administrative Law Judges (ALJs) (good men and women all) are so overworked.** See The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013).  On the other hand, I like doing motions under 28 U.S.C. § 2255 attacking federal criminal convictions and sentences. Since I handled the underlying criminal case, I am familiar with the facts and issues and can normally resolve the matter fairly quickly and without a lot of wasted effort. That’s why I almost never assign a law clerk to handle a section 2255 motion.

Law Clerks:


Once again, Nick I am sorry. There was universal agreement among the clerks that Social Security appeals are awful. While they are certainly important to the claimant, they eat up a disproportionate amount of time. Nonetheless, because the ALJs are under the gun to get out decisions, any Social Security appeal must be given a hard look. On the pro se side, non-prisoner employment cases are trouble. The law on employment cases is squirrely enough without having the complicating factor of a plaintiff who is not represented by counsel.

There was also universal agreement about one other thing. The clerks detest civil cases involving summary judgment motions where the lawyers fail to strictly follow our local rule of practice about how to brief summary judgment motions. See NECivR 56.1. Raging anger best describes the feelings of the clerks on this issue.


In general, all the clerks liked intellectually challenging cases raising novel issues where there were good lawyers on both sides. On the pro se side, state habeas cases were liked because the law (despite academic arguments to the contrary) is well-developed and over the years the Nebraska Attorney General has bought into providing a suitable record and complying with our briefing requirements and that allows us to get at the issues in an efficient manner while providing a fair and thorough review for the prisoner.


Nick, thanks for asking the question. It was a good exercise for the clerks and me to think through the answers.


*In addition to my two “chambers” clerks, who are career clerks and who have been with me for decades, I also supervise the pro se staff. They are very experienced lawyers as well. My career clerks work for me alone, while the pro se staff does works for all the Article III judges in the district. Everything the pro se staff works on is reviewed by me first and then it goes to the assigned district judge. If one of our judges does not like the proposed order, that information is communicated to me rather than the pro se staff and the pro se staff and I rework it. This provides a consistent and efficient work flow on a docket this is particularly challenging because we are dealing with non-lawyers.  Right now, the pro se staff handles about 180 cases per year.

**Incidentally, unlike a lot of federal courts, we do not dump Social Security appeals on our Magistrate Judges. Each Article III judge does his or her own Social Security appeals. (We deserve a medal!) Long ago, when I was served as a magistrate judge (MJ) in Omaha, I did Social Security appeals because each district judges had a caseload approaching six hundred. Given the press of my regular MJ duties (I was the only MJ in Omaha), and the fact that I had only one law clerk, the extra work really slowed me down.

8 responses

  1. As a law clerk, I see all the same kinds of cases you discuss, and I completely agree with your likes and dislikes. I do appeals, and I cannot speak lowly enough of Social Security cases. Yuck. Those 2254 petitions, on the other hand, are the best. It’s my opinion that no post-conviction case from the state court has boring facts. It just doesn’t happen. If the sentence is long enough for the case still to be kicking by the time the state appeals and the district court’s review have completed, something crazy probably happened. And unlike 2255 appeals, which predominately are drug- or gun cases with guilty pleas and appeal waivers, there are often a lot of documents and opinions to read.

  2. Knudsen,

    Thanks for your comment, but be careful agreeing with a “dirty old man.” You have a reputation to preserve.

    All the best.


  3. Judge:
    What really stood out for me was your comment about how you don’t like non-jury trials because you don’t think of yourself as good at making credibility determinations. Any chance you could expand on this topic as a future blog posting?

  4. Robert,

    To be precise, I think I said I was no good at judging one person’s credibility against another person’s credibility–I had a tough time when the situation was 1 on 1. But, that is a quibble.

    First, you might want to read Why does Kopf believe cops most of the time?

    Second, I may write more on the subject of my poor skills at judging credibility, but first I need to determine why that is so in my own mind. Frankly, and even now, I am not sure. Maybe when I grow up. Seriously, I will give your suggestion some thought.

    All the best.


  5. Judge Kopf:

    Thanks for your post. I figure that most federal district court judges have similar opinions on Social Security appeals. I prepared a hasty response over at my personal blog – I apologize for the rambling nature of the response but I composed it after a long drive from KC to Scottsbluff.

  6. Judge:
    Thanks. And, for what it’s worth, I am the same way in the proverbial he-said/she-said scenario.

  7. Judge if I might add a few from the state court side. I can’t necessarily follow the pattern as I am punch drunk at the end of the day.
    1. Like: Always prefer a jury trial over a bench trial. I like the interaction with “the people” and a chance to educate them on the judicial system. I have come to prefer criminal trials after 17 years. They are easier, the lawyers engage in less B.S., and are usually more interesting. The downside are the child sex abuse cases which are heartbreaking. Capital cases are a real pain in the a** as they take forever and you will probably see then 2 or 3 times before the conviction sticks (I have never had an acquittal). The upside is the lawyers are the best of the best. Civil: Like and Loath medical malpractice as they have the best lawyers, interesting fact but are nastier than a capital case. Loath the case where a lawyer is a fool and thinks a $5000 case is worth $5 million and doesn’t know the Rules of Evidence or Procedure even exist.
    2. Loathe: a) A trial (bench or jury) involving the breakup of a family business. They are worse than a divorce (which I don’t do). The only really serious death concerns (not just “threats”) came from these cases. Boundary line cases–they will get a judge killed. Loath the case where a lawyer is a fool and thinks a $5000 case is worth $5 million and doesn’t know the Rules of Evidence or Procedure even exist.

    Motions: Since I don’t have a Magistrate or even a law clerk anymore (I did to 2005) any motion involving discovery where the lawyers expect me to spend 2 yours going line by line down their discovery ruling on objection one by one. They get the honor of being assigned a Special Master—and paying him.

    Loathe: On triple witching days (maybe once a year) all of our domestic relations judges will gone, and of course they don’t bother to tell anyone. If one of us regular judges happens to be the “duty judge” then the motions and calls start coming in. Last time I handle one of these messes, one lawyer was in my chambers one on the phone. The one on the phone insisted on yelling constantly. After warning him several times my hand behaved like Dr. Strangelove’s arm and just grabbed the phone and slammed it down, hanging up on the loudmouth. He called my law clerk back and said “I think I got cut off” my law clerk said: “Now, the judge just hung up on you.”
    Never again.

%d bloggers like this: