Kopf to Judge Rader: Go easy on yourself

By and large, I like lawyers. This may seem strange coming from a judge who was once a lawyer. What else do you expect? Well, the answer to that question is not as obvious as it may seem. Over time, judges can begin to detest lawyers. That is because we see a lot of really bad lawyers who are really bad people.  But most of the lawyers we see are proficient and descent men and women.

Keeping the foregoing mind, I turn to the travails of Federal Circuit Judge Randall Rader. Here is the background of the judge taken from Wikipedia (with notes, marginal notations and headers omitted) and while you are reading look for his Nebraska connections:

Randall Ray Rader (born April 21, 1949) is the Chief Judge of the United States Court of Appeals for the Federal Circuit.

Born in Hastings, Nebraska, Rader received a Bachelor of Arts in English from Brigham Young University in 1974 and a Juris Doctorate from The George Washington University Law School in 1978. Rader served in staff positions on the House of Representatives from 1975 to 1980, first as a legislative assistant to U.S. Rep. Virginia Smith from 1975 to 1978,* then as counsel to U.S. Rep. Philip Crane, and legislative director of the United States House Committee on Ways and Means from 1978 to 1981. He then served as counsel to the United States Senate Committee on the Judiciary from 1980 to 1988. While counsel to the Judiciary Committee, he was Chief Counsel or Minority Chief Counsel for the Subcommittee on the Constitution and the Subcommittee on Patents, Trademarks, and Copyrights.

President Ronald Reagan appointed Rader to the United States Court of Federal Claims in 1988, to succeed Robert M. M. Seto. The United States Senate confirmed the nomination by unanimous consent on August 11, 1988. On June 12, 1990, Rader was nominated by President George H. W. Bush to a seat on the United States Court of Appeals for the Federal Circuit vacated by Jean Galloway Bissell Rader was confirmed by the Senate on August 3, 1990, and received his commission on August 9, 1990.

While on the Federal Circuit, Rader has served as a law professor, having taught patent law and advanced intellectual property courses at the University of Virginia School of Law, Georgetown University Law Center, Washington, DC, the Munich Intellectual Property Law Center, and The George Washington University Law School, Washington, DC. Rader is co-author of a casebook on patent law used at over sixty-five law schools. He has received many awards, including the J. William Fulbright Award for Distinguished Public Service, 2000. As an appellate judge, Rader has also led or participated in over sixty delegations to foreign nations, usually to teach rule of law or intellectual property concepts in developing nations.

Rader became Chief Judge of the Federal Circuit after former Chief Judge Paul Michel retired in 2010. Despite his new administrative duties, he continued to speak at law schools and at international conferences.

Rader announced his resignation as Chief Judge on May 23, 2014, to be effective May 30, 2014. Rader will remain on the court. Sharon Prost will succeed Rader as Chief Judge. His announcement came in the wake of his violation of ethical canons by sending a laudatory e-mail to a Member of the Bar of the Federal Circuit and asking that Member to show that e-mail to other Members of the Bar, creating the perception of an improper relationship between himself and Members of the Bar. Rader recused himself from a couple of cases he had presided over, due to the participation of the attorney in question.

As the foregoing suggests, Judge Rader sent an e-mail to a lawyer after a case had been submitted to the Federal Circuit. According to the Wall Street Journal, the substance of the e-mail and how it was subsequently used went something like this:

The judge sent the email in March to Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP in Silicon Valley. The email, which was reviewed by The Wall Street Journal, described a recent conversation in which another judge purportedly told Judge Rader that Mr. Reines was “IMPRESSIVE in every way.”

In the email, Judge Rader said: “I was really proud to be your friend,” and encouraged Mr. Reines “to let others see this message.” He signed the note “Your friend for life, rrr.”

ASHBY JONES and BRENT KENDALL, Judge Who Recused Himself From Patent Cases Resigns as Chief Judge [,] Randall R. Rader Leaves Post as Chief Judge of Court of Appeals, Stays on the Bench, Wall Street Journal (Updated May 23, 2014 7:13 p.m. ET) (subscription may be required for some versions).

When the e-mail was shown to a client apparently as a marketing ploy, it became public. Rader in turn resigned as Chief Judge writing a full, frank and candid admission that he had violated the Code of Professional Responsibility** by lending the prestige of his office to the private interests of the lawyer. You can read the letter here. The judge described himself as “inexcusably careless . . . .” He was right.

A lot of ink has been and will be spilled on this matter. For example, many are in high dungeon, and will endeavor to use this screw up as a reason to bash the entire Federal Circuit and perhaps to do away with that specialized body altogether with the idea of sending patent cases back to the regional circuits as in days gone past.  I have no interest in that stuff.***

What I am interested in is the human aspect of Judge Rader’s error.  I think I have only had one occasion to meet the judge when he came to Lincoln to give the Cline Williams Jurist-in-Residence lecture in February of this year. I don’t recall knowing Judge Radar when he worked for Congresswoman Smith.

Dean Susan Poser (left), Judge Radar (center) and Christal Sheppard Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law, who interned with Judge Radar.  The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon Feb. 14, 2014.

Dean Susan Poser (left), Judge Rader (center) and Christal Sheppard (right) Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law. Sheppard interned with Judge Rader. The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon on Feb. 14, 2014.

Here is my impression based on a one night of interaction: Judge Rader is a very bright judge and almost the perfect Chief Judge insofar as bench and bar relations are concerned. He is easy to talk to, he goes out of his way to be approachable, he is humble, he is self-effacing, I suspect he is an excellent teacher as his legal analysis is clear and easily understood, he seems truly sincere, and he is, without question, fun to be around without overdoing the “hail fellow well met” routine. I came away quite impressed.

What’s the point of all this? Well, there are two.

First, I venture to say that if you serve any length of time as a federal judge you will engage in an ethical lapse. God knows I have done that. Here’s one of mine: On being a dummkopf.  Like my mistake, these ethical lapses are most often the product of inattention rather than bad faith. No, that is too easy a description. More honestly put, the great bulk of the ethical errors are just plain stupid. But, federal judges, just like everyone else, are plainly stupid some of the time. If you think otherwise, you have not practiced law in the federal courts.

Second, for judges like me who like and respect lawyers, the urge to convey our appreciation to the best of the profession is a good professional and human quality. Federal practitioners and federal judges are at the most abstract level bound together in a common endeavor. In order to achieve that lofty goal, the bond between federal practitioners and federal judges at the street level needs to be strengthened and nurtured rather than weakened. We federal judges should let our practicing brothers and sisters know that we appreciate the good work we see turned in every day.

This is my sense of what motivated Judge Radar to write his overly effusive, but plainly improper, e-mail. His head was empty but I trust his heart was pure. That is not an excuse, but the judge’s effort to reach out to a member of the bar who apparently did excellent work does put a finer point on the judge’s conduct. A judge being appreciative of fine legal work and expressing that appreciation appropriately, and in the proper forum, is laudable.

In summary, I am no doubt giving Judge Rader the benefit of the doubt. I can’t know his heart. Hell, I don’t even really know him. However, given his past distinguished service (not to mention that he is a native Nebraskan), my presumption of good faith on the part of the judge strikes me as entirely justified. But, dear reader, that is up to you to decide.****

What I can say, and now say to Judge Rader, on a very personal level, is this: Go easy on yourself. Yes, you screwed up but you fessed up and there is nothing more than you can do. Don’t let the bastards get you down.

RGK

*As perhaps the leading member of the farm caucus in the House, Mrs Smith was a very, very, very powerful Member of Congress from the Third District of Nebraska. (The Third District is a huge expanse of cattle and corn and few people that covered Lexington, where I practiced law for 13 years.) I have it from multiple authorities (including the “shot caller” at DOJ) that President Reagan did not nominate me as federal district judge several months after I became a 40-year old Magistrate Judge because Mrs. Smith vigorously opposed my nomination. Keep in my mind that I stumped for her in the Third District and even substituted for her in a debate. But, when I prosecuted the impeachment of Nebraska’s Attorney General, a good man and stalwart Republican, Mrs. Smith made it known that I was “dead to her.” She was one tough cookie.

**CODE OF CONDUCT FOR UNITED STATES JUDGES.

***I spent six years sitting with a judge from the Federal Circuit when we both served on the Codes of Conduct Committee writing confidential ethics opinion to judges and redrafting the Code of Conduct. In addition to being a brilliant scientist and first-rate lawyer, this man was deeply committed to the very hard work of the Committee. He was an absolute straight shooter. It would be grossly unfair to speak of Judge Rader’s lapse as a reason to smear the Federal Circuit on ethics issues without also acknowledging the work of my friend.

****Many thanks to Eric Hines, one of the most discerning lay persons I know, for stimulating my thinking on this subject. Of course, he shares no burden for the weakness of my views.

17 responses

  1. What about the lawyer? Isn’t anyone going to suggest that he should have kept the communication to himself, maybe shown it to his partners and his immediate family, but not used it for marketing? Many of us have been complimented by judges here and there (note how I elide whether that has ever been my experience), sometimes in an opinion thanking the parties for their briefs, or in an off-the-cuff comment after oral argument, and those so favored might mention it back at the office. But I don’t think any honorable lawyer would use something like that to get business. (Maybe I’ve led a sheltered life.) Did the judge make a mistake? Yes. And if the lawyer ever were scheduled to appear before him, the judge should recuse himself, and if he did not the lawyer ought to request recusal. But it was the lawyer’s foolishness that made the judge’s foolishness into a public event. Shame!

    (It seems to me that I remember one or two opinions in which judges wrote something like, “The briefs and arguments of the parties were of absolutely no help to the court.” We used to chortle over such nuggets in law school.)

  2. Jon,

    You make an interesting point. One that I totally ignored. Surely, the lawyer should have kept the e-mail to himself. OK, take it home, and show it to the significant other, but no one else.

    I have not seen a copy of the actual email. Maybe it came to a “mail group” but the judge didn’t understand that it was going into such a thing. Maybe something else happened. I wonder if we will ever know.

    By the way, one of the things the law clerks and I constantly debate is when to gig a lawyer in writing. We understand the power of a “bitch slap.” We try hard, and I mean hard, not to take cheap or mean shots even when they would otherwise be justified. Why the reluctance?

    I really believe that lawyers and judges are engaged in a common enterprise. A judge’s sharp words can damage that “sense” as between the judiciary and the bar. Sometimes one must teach, and a well placed but not snarky footnote directing the lawyer to a particular problem can be perfectly OK. Most other times, restraint, restraint, and restraint is called for on the part of the judge when confronted with a lawyer’s poor performance.

    Thanks for writing.

    All the best.

    RGK

  3. Judge:
    I agree with your take on Judge Rader. The self-imposed sanction by Judge Rader, namely, that after this incident he chose to voluntarily step down from the chief judgeship of his Court, speaks volumes about him and his integrity–irrespective of this one time, minor breach of judicial ethics (by contrast, those in the other two branches of government usually issue the same public statement suggesting that they are taking “full responsibility” only to continue with business as usual). I always tell myself that judges are: 1) the only branch of government accountable, in writing, for every public act they undertake; and 2) the only branch of government held to the highest ethical standard imaginable, i.e., avoiding even the appearance of impropriety. Despite his mistake, Judge Rader has nonetheless met that ethical standard.
    Robert

  4. Robert,

    You are right. Indeed, few people know that a Committee of very dedicated judges spend their “extra” time writing both private and public opinions to other judges to help them avoid even the most minor issues. This is not easy work for the judge assigned to research and write the opinion, it is like taking on several regular additional cases. The opinion won’t go out until all of the 15 members, plus staff legal counsel, have provided their input. It is not unusual for the Committee to put out more than 100 private opinions a year, plus published advisory opinions. Additionally, the Committee is tasked with the responsibility of issuing or denying certificates for the sale of appreciated stocks in order to avoid recusal problems. The Committee does many other things to insure federal judges function at a high level of integrity.

    I hope this emphasizes your essential point: We are held to highest standards imaginable and by and large we meet those standards. Thank you for your engagement.

    RGK

  5. Does the following foot-noted comment qualify as a “bitch slap”?:

    Plaintiffs appear to suggest that the jury shirked its
    obligation to thoroughly, and in good faith, consider the
    evidence in this case by repeatedly commenting on their short
    period of deliberation which, Plaintiffs make a point of noting,
    “included lunch and a smoking break.” * * * Putting aside the disrespectful nature of
    Plaintiffs’ suggestion, the undersigned finds the length of the
    jury’s deliberations unremarkable given the threshold questions
    they answered, and consistent with his own opinion of the merits
    of Plaintiffs’ case as a whole.

  6. Terrapin,

    How much are you betting that I won’t answer your question?

    First, I hold the record in the District Court of Dawson County, Nebraska for the shortest deliberation in a felony criminal case. I lost in 20 minutes, but I demanded that everyone give me credit for the hour the county paid them for lunch. That is, I am probably not the best person to address a question like yours.

    Second, did I write it? I kinda hope not.

    Third, “no,” even assuming I didn’t write it, it is a “love” tap.

    Fourth, to be absolutely fair to you, your opponent and the judge (who could be me), I would have to see the whole opinion to know for sure.

    Fifth, I can see situations where the length of jury deliberations might be pertinent as, for example, there was a nasty rebuttal argument made by the prosecutor raising irrelevant and prejudicial matters, and a criminal jury came back soon thereafter for the prosecution. But, in most cases, do you really and truly believe that the length of jury deliberations tells you very much about how serious jurors are? I don’t.

    Do I win the bet?

    All the best.

    RGK

  7. My inclination is that it’s not a “bitch slap.” It does quote the papers and call an argument “disrespectful,” so I’d say it definitely singles out counsel, and I’d be pretty uncomfortable to be on the receiving end of this language. But to my mind, a judicial “bitch slap” (I hate that term a little more every time I type it) has an added dash of meanness or at least smart-assedness, whether it’s ridiculing a grammatical or other error, mocking an argument or denigrating counsel’s innate ability, which I just don’t see in that quoted language.

  8. Chocolatetort,

    One thing I forgot to mention. Judges get very protective of jurors. After you deal with jurors for a long time, you begin to realize how the vast majority of them take their jobs very seriously. That is true even when they are quick to come to a conclusion. So, what one may be seeing in the questioned footnote is the judge’s inclination (perhaps even subconscious) to protect his or her brood.

    If I remember correctly, you clerked. If so, and you got involved in jury trials, I would be interested in your reaction to the foregoing. In any event, thanks for your engagement.

    All the best.

    RGK

  9. I’m afraid you lose the bet, Judge. Thankfully, I was not the intended target of this note. Nor was RGK the author. After a month-long civil jury trial, the jury was out for 2 1/2 hours. While returning to Court to receive the verdict, all I could focus on was the debate between my heart and head as to what the length of the deliberation meant.

  10. Judge Kopf – I think Judge Rader’s “corrective action” was a little harsh. This falls under the rubric of shit happens. Learn from the mistake and move on. it all seems rather over blown to me.

  11. I believe, the proper term is “bench slap”. It probably plays a feeble but necessary role in some narrow situations like appellate review of brady violations or such where they still win on harmless review. Have you ever dealt with a case where you were the Judge at trial and sentencing and later on faced a glut of Brady/napue material in habeas?

  12. TF,

    The answer to your question is “no.” In our District, we all have made it painfully clear that if an AUSA plays fast and loose with Brady, death ensues. I have gotten stuff at the margins, but not much more.

    I agree with you that an appellate bench slap directed at an AUSA can make a difference in how the whole office performs later on. That is one good use of the device.

    All the best.

    RGK

  13. Tom,

    I am taken by your comment.

    We judges take ourselves so seriously. The problem is that in the current environment little screw ups make the Wall Street Journal. Years ago, I felt like a bug under a microscope. Incidentally, that is one of the reasons why I started blogging after reaching senior status. That is, if if the public really wants “transparency,” I’ll give it to them by the shitload. Maybe it will do some good in teaching that federal trial judges are just normal people trying their best, and, often, our country would be far better off if folks would accord federal trial judges a presumption of good faith.

    All the best.

    RGK

  14. Pingback: To Sir, With Love | Simple Justice

  15. I was always struck by how both judges went out of their way to be courteous to jurors and considerate of their time — because they had not chosen to be there, because they have a lot of sitting around time, because they had a trial to slog through without even the notepads and various papers we had to occupy our hands during the slow parts. There wasn’t much than made my judges more frustrated than attorneys who were late to trial. One of my judges provided pizza every so often for beleaguered jurors or treats from the farmers market, and the thanks both judges gave at the end of a trial was always utterly sincere.

    Speaking only for myself, one or two these verdicts were a bit baffling, and remember feeling sympathy for the losing attorney. I can hardly think of anything that would have made that sympathy evaporate faster than a suggestion that the jurors had somehow slacked off their obligation to perform their duties seriously — not that sympathy would have helped in any substantive way, but it is a good way to ward off sarcastic footnotes. It’s not a rational reaction (I know, I know, zealous advocacy), but even now the thought of an attorney making such suggestions without very serious evidence makes my hackles rise — and I was just a clerk for a couple years. I remember narrowly avoiding a trial that would have been about a month long, but had the jurors believed the defendant, it just would not have required much discussion.

    Upon re-reading the quoted language, I see a little more why Terrapin raised the question. That must have stung for the attorney on the receiving end, although in my limited experience, there’s not necessarily a correlation between the merits of a case and the abilities of an attorney. It’s more blunt than necessary, but I still wouldn’t say it’s quite mean or smart-assed enough to merit the descriptor ‘bench slap.’

  16. chocolatetort,

    Thanks for giving your experiences. It is the same as mine. That is, when you spend in intimate contact with jurors as judges, law clerks, and court clerks do, you become protective of them. That is because you see how seriously they take their jobs even when they decide quickly.

    All the best.

    RGK

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