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.

Kopf:

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.

Motions:

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:

Loathe:

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.

Like:

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.

 Conclusion:

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

RGK

*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.

Behind-the-scenes–Court Security Officers (CSOs)

photoWhen you enter our federal building in Lincoln, you will walk up to a screening station.  Two men or women will great you. They are pleasant and welcoming. They are nicely dressed in pressed grey pants, blue blazers, dress shirts and nice ties. You can’t tell it, but they are carrying semiautomatic firearms. You might notice that they sometimes have little “ear buds” (connecting them to a command station).

They will very efficiently run your things through a scanner. They will ask you to walk through another scanner. This happens even if you are a court employee or other building tenant. If you left your keys in your pants, a buzzer will ring and they may “wand” you if they can’t find the metal that triggered the alarm. As they do this, and sensing your irritation, they will relax you with small talk and then send you on your way.

If you are old, or don’t speak English very well, or are just confused, they will quietly visit with you and help you navigate the five-story building. The children in the day care love these men and women. Each child is known by name, and happily runs through screening process delighted to see and jabber with their old friends.

If you are on the court floors (of our joint use building), you may see them. Aside from small insignia on their blazers, and the ear buds, they look like well dressed middle-aged lawyers. During a civil or criminal trial, and even if the U.S. Marshals are in the courtroom, you might notice a CSO take a seat in the back of the courtroom in one of the two black padded chairs near the rear door. He or she will sit for a little while and then quietly leave.

The men and women I write about are Court Security Officers (CSOs). Our group in Lincoln is composed of the best of the best of retired state troopers and police officers. Since law enforcement officers are forced to retire at a relatively early age, our court benefits by being able to hire these officers when they are in their prime.

Let me give you a little bit of background about the two fellows pictured in the poorly crafted photograph I took yesterday that appears in this post. Both men retired from the Nebraska State Patrol after having long and very distinguished careers. One ended his career as a pilot for the air wing flying both fixed wing aircraft and helicopters. The other ended his career protecting the Governor. Each one had 27 years on the Patrol. They are just the best, and, moreover, they are typical of the other CSOs.

In the federal judiciary we are pleased to be protected by the United States Marshals. They are great young men and women with wonderful training. Unknown to most people, however, are the dedicated group of Court Security Officers who bring to our system an important maturity and life long commitment to justice. I happily put my life into the hands of these men and women every day, and they deserve to be recognized for their professionalism and courage.

I would tip my cap to the Lincoln CSOs, but my head is bald as a cue ball. I couldn’t take the grief I would endure from the CSOs. With a respect that is nevertheless wry, CSOs give judges like me just enough crap to remind us that we walk on two legs just like everyone else. We judges need that daily reminder.

CSOs: Great people all.

RGK

 

 

 

 

 

Behind-the-scenes–Kopf is old and sick, what should the court do?

As a magistrate judge, as a Chief District Judge, and as an active district judge, I have had three opportunities to observe or participate in how our court dealt with a district judge* who was sick or old and where questions were raised about whether the district judge should continue to hear cases. Each case was different.

I will not write about those three cases. However, the reader might be interested knowing how we have addressed this behind-the-scenes question in light of my own ongoing cancer treatment. Hopefully, the take-away is that the federal trial courts are sensitive to this issue, proactive, and careful.

Among all federal judges, a federal district judge is unique in one respect. The federal district judge is the only Article III judge who has the general power to make a decision solely by himself or herself. This vests in district judges an awesome power and responsibility. Most of us never forget that we walk the tightrope alone, and if we fall off because of an infirmity we are likely to badly injure those below.

Like the narcissist that I sometimes am, here is my story and how our court dealt with my becoming old and sick.

Four days after my first wife unexpectedly died on December 26, 1986 of an unknown virus that attacked the electronics of her heart, and only a month before I was to become a magistrate judge, my stomach ulcer ruptured spilling the contents of my guts into my stomach cavity. Emergency surgery, replete with a huge scar, followed. Eight days afterwards, I was released. I weighed 137 pounds. I recovered (sort of) and began working in Omaha as an MJ in February of 1987. I had just turned 40.

I became a district judge in 1992 soon after turning 45. By the time I was a few years over 50, and while driving back from a strenuous trial in North Platte, I suffered a heart attack. The blockage was relieved by angioplasty. But not long thereafter the blockage came back. That was followed by another angioplasty and then a stent. I began to mend.

Several years after the heart attack, and during a routine check up, my cardiologist thought he heard the distinct murmur of a blockage of the right carotid artery. Testing confirmed it. Several days later, into the operating room I went. I lay partially sedated but awake (so they could talk to me and determine if I was having a stroke) while the talented vascular surgeon dissected the carotid and relieved the blockage. A year or so later, the right carotid was blocked again and the second endarterectomy was performed. This time it took.

As readers of this blog know, in early December of 2013, and while trying a high-profile jury trial out-of-state, my left leg and foot began to swell. Two deep vein thrombi were discovered and then were relieved by blood thinning medications. Severe pain persisted. I was 67.

More or less, the Chief Judge and my other judicial colleagues knew of my medical history. Even though I had taken senior status at 65, since I never missed much work and maintained a full caseload, I doubt that history gave my Chief Judge, the other active Article III judges or anyone else a concern about whether I could do my job competently as a senior district judge. That changed for me, and I suspect my colleagues, when I was diagnosed with stage III** classic Hodgkin’s lymphoma earlier this year.

Here in chronological order is a general description of what transpired behind-the-scenes:

  • On February 27, 2014, I notified my colleagues that I had been diagnosed with lymphoma but that the disease had not been typed or staged. I outlined the process for typing and staging.  I asserted that no change in the assignment procedures was required until I knew more about a precise diagnosis. My colleagues were supportive, and I promised to keep the Chief Judge, the other active Article III judges, the Clerk and her deputy advised. This was all done in writing.
  • On March 6, 2014, I advised my colleagues in writing that I had Hodgkin’s lymphoma either stage III or IV. I also advised that even at these late stages the disease was curable according to the medical literature that I provided.
  • On March 17, 2014, I advised my colleagues in writing that:

Today, I learned the following:

1. The nodule in my lung is probably a fungal infection that occurs frequently in this part of the country. The UNMC pathologist gave that tentative opinion this morning following a biopsy of my lung at UNMC on Friday. If that turns out to be true, the infection will be ignored for the time being and I will start treatment of the lymphoma.

2. After a biopsy last week, the bone marrow is free of the lymphoma.

3. Given the above, I have stage III, classical Hodgkin’s lymphoma. The five year survival rates are all over the board. From the literature I have reviewed, I estimate that I have somewhere between a 60 to 85 percent chance of being around to haunt you in the spring of 2019.

4. Dr. Armitage, a world leading expert, and Dr. Green, my treating oncologist in Lincoln, both agree that I should start a chemo protocol developed here in Nebraska for people over 60. I will receive treatment here in Lincoln.

5. I will go through six cycles of treatment. Each treatment cycle lasts 28 days. I receive chemo drugs on the 1st and 8th days by infusion into my port. On days 1-14, I also take chemo medications by mouth. Days 15-28 are for rest and no chemo is administered. Radiation is not usually required.

6. I will start the protocol as soon as the final pathology report on my lung is received by Dr. Green confirming that I have a fungal infection and not cancer in the lung. That is, I should start chemo in a week or so.

7. Dr. Green advises that I should not plan on conducting trials during the first cycle–that is, for about a month after I start chemo, I should not plan on conducting trials because I could be very sick. If the first cycle goes well, I may be able to handle trials thereafter, particularly during the last 2 weeks of each cycle. But my functionality as a trial judge (always suspect in the minds of many) is yet to be determined.

8. Judge Zwart is managing my trial calendar with the foregoing in mind. If trials become necessary during the first month, I will ask LSC to reassign cases. After the first month of treatment, I should know better how I will be able to handle trials. As for sentencings and other short matters, Kris [my judicial assistant] and I will manage those that have been previously set with the idea that I should be able to be on the bench for short periods of time. For new sentencing matters, I ask Judge Zwart to schedule them in accordance with the above and pursuant to our oral discussions.

  • On March 26, 2014, I advised my colleagues that I had started my treatment. I described in some detail what the treatment was like.
  • Soon after March 26, 2014, the Chief Judge, the other active district judges, the Clerk and her deputy conferred or corresponded with me and the following was done: (1) my career law clerks*** were instructed in writing to contact the Chief Judge if they felt I could not perform my duties competently and they were to do so without consulting me; (2) the Chief Judge, the Clerk and her deputy were provided in writing with permission to consult my physician without notifying me and to secure any and all information they desired at any time and that such permission was considered by me to be irrevocable; (3) the Chief Judge, the Clerk and her deputy were given in writing the user name and password necessary to access my electronic medical records and they were given irrevocable permission to do so without notifying me; (4) General Order 2014-02 “IN RE: JUDGE KOPF’S CANCER DIAGNOSIS AND TREATMENT” was entered generally advising the bar and the public of my condition and how the court would deal with my illness including the fact that the court was taking steps to monitor my condition; and (5) at my request, a non-jury civil trial scheduled for early April was reassigned to Judge Gerrard who graciously offered to take it.
  • Following completion of the active part of the first cycle, my doctor wrote a report that included this statement about my ability to work:”Fully active, able to carry on all predisease activities without restrictions.”  I provided the Chief Judge, the Clerk and her deputy with a copy of that report.
  • On April 30, 2014, I advised the Chief Judge, the Clerk and her deputy, the two other active district judges and Magistrate Judge Zwart that my doctor had advised that I was doing very well, but that my fatigue, while fully expected, was likely to increase with each cycle. Tentative plans were instituted on both a short term basis and a longer term basis to deal with the possibility that I might be unable to try one or more cases due to the increased fatigue level. That is where we stand today.

Kopf is old and sick, what should the court do? Now you know what we did. Other courts and other judges might find better ways. I don’t hold out our approach as a model. I do, however, suggest that we in the District of Nebraska take these problems seriously, and deal with them responsibly.  And that is a small part of what goes on behind-the-scenes.

RGK

*As Chief Judge, and otherwise, I have also dealt with two magistrate judges who had serious illnesses  But, those situations pose different problems, and are not the focus of this post. The focus here is on district judges who exercise Article III power and who enjoy Article III protections. Those powers and protections cover Article III judges who have taken senior status but continue to work (as is their right). However, is up to the Chief Judge of the local court to determine the extent to which the senior judge will be given a caseload. See 28 U.S.C, § 294.

**A stage III is assigned when the disease is found in lymph nodes above and below the mid-line of the body but not in the bone marrow.

*** Jim is 62. Jan is right around 50. Jan has been with me over 20 years and Jim has been with me more than a decade. I would literally trust either one with my life. They are brilliant and experienced lawyers who take their responsibilities seriously and I have no doubt that they would contact the Chief Judge if that became necessary. They are just the best.

Behind-the-scenes–Orange is the new black

Remember my earlier post about “Freddie?”  Click on the link and read it before proceeding further.

Anyway, Freddie has taken easily to his new assignment in western Nebraska supervising the hombres that prowl those parts.  Yesterday, I received the following photo array from a well placed source deep within the bowels of the US Probation/Pretrial Services community within the District of Nebraska. Let me say, simply, Freddie’s commitment to do whatever it takes makes me proud to be an American. This is precisely how the west was won, albeit without the panache!

Photo credit: Booking photo taken at the Dawson County Jail and Courthouse Lexington, NE (2014). (United States Probation Officer Fred S., aka "Ferd"/"Dingo," while working undercover in his lonely and dangerous western Nebraska territory.)

Photo credit: Booking photo taken at the Dawson County Jail and Courthouse Lexington, NE (2014). (United States Probation Officer Fred S., aka “Ferd”/”Dingo,” while working undercover in his lonely and dangerous western Nebraska territory.)

 

 RGK

Behind-the-scenes

When I asked folks to “flog” this blog, one of the commentators (anonymouse,
May 2, 2014 at 9:17 am) suggested that I provide more behind-the-scenes accounts of what really goes in the federal trial courts. Believing that a picture is worth a thousand words, and keeping in mind my post on the wearing apparel of female lawyers, consider the following that I received last year (well before my apparel post) as part of a contest for the best Halloween costume.

 

Photo credit:  United States Probation Office for the District of Nebraska (Halloween, 2013).

Costume, model and photo credit: United States Probation Office for the District of Nebraska (Halloween, 2013). While I had nothing to do with this model or any awareness that my likeness would be used in the contest, the bra superimposed on the model by US Probation in 2013 is mine. How I came to wear that bra in open court in our Special Proceedings Courtroom long before my wearing apparel post or the 2013 Halloween contest is a behind-the-scenes story for another day (maybe).

 

Yes, the United States District Court for the District of Nebraska has an annual Halloween contest. What’s more, Chief Judge Bill Riley of the United States Court of Appeals for the Eighth Circuit (whose office is in Omaha) is a very engaged participant as well. I think he might even have thought up the idea!

Who knew?

RGK

 

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