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.

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

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