Nebraska federal Judge John Gerrard picked as a “rising star judge” for law clerks

downloadMy colleague John Gerrard was selected as one of 7 “rising star judges” law students should want to clerk for. See Megan Larsen, 7 Rising Star Judges You Want To Clerk For, Above the Law (April 2, 2014). I second the selection.

John is whip smart, a good writer, and a very nice guy with a great sense of humor. In his earlier judicial gig, he was the youngest person appointed to the Nebraska Supreme Court.

The fact that he begins his day requiring his law clerks to catch and then sacrifice small animals below an altar displaying his photo should not deter kids from applying to John. You get used to it.

RGK

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.

The Bad Matt strikes again

Some of you may remember the Bad Matt from my stay in Sioux City, Iowa. Although generally a horrible person, he is a brilliant law clerk for a very distinguished Iowa senior district judge. I posted about his fatal attraction to Pabst Blue Ribbon, and provided a photo of the stash the Good Matt and I discovered in the Bad Matt’s office. Yesterday, via UPS, I received from Bad Matt a spongy Pabst Blue Ribbon hat. Bad Matt’s note indicated that when I went bald from the chemo, I should wear the hat to protect my noggin.

I was shocked. The Bad Matt had played cruel jokes on me when I was a stranger in that strange land we know as Sioux City, Iowa. It never occurred to me that a truly demented Pabst devotee could have a soft spot.

Thank you, Bad Matt. (What goes around comes around.)

RGK

In my chambers near my conference table sits my bust of Lincoln (given to me by Chris Cook, a really good lawyer and even better artist) now wearing my new Pabst Blue Ribbon hat given to me by the bad Matt. Don't be distracted by the "dear leader" bobblehead. The law clerks pray to that one.

In my chambers near my conference table sits my bust of Lincoln (given to me by Chris Cook, a really good lawyer and even better artist) now wearing my new Pabst Blue Ribbon hat given to me by the bad Matt. Don’t be distracted by the “dear leader” bobblehead. The law clerks pray to that one.

No Rookies: the inestimable value of career law clerks

Attribution:  beckstei's photostream.  Creative Commons License.  http://creativecommons.org/licenses/by/2.0/deed.ent

In the narrow corridors behind the courtrooms lurk the law clerks (lawyers) for the federal trial judge.  If the judge is lucky, very lucky, the judge has been able to hire career law clerks–highly educated and experienced men and women who will remain with the judge through most of his or her time on the bench.  This post is a tribute to those career law clerks.

First things first.  For a very funny, extremely well-written and wonderfully researched law review article about law clerks, please read Parker B. Potter’s Law Clerks Gone Wild.  Written by a career law clerk for a federal trial judge, Mr. Potter shows us how to write legal stuff that is both entertaining and insightful.  Mr. Potter concludes his tour de force this way:

Commentators have had plenty to say about the deleterious effects  of the rise of the clerkigentsia.  But, based on my research, the really  scary law clerks are entirely fictional. Law-clerk conduct that threatens  the basic integrity of the American legal system is all but absent from the  pages of the Federal Reporter and the Federal Supplement, and can be found only on the fiction shelf, . . . . That might be a small comfort, but it’s nothing to sneeze at in a day and age when integrity can sometimes seem in short supply in both the public and private sectors.

Parker B. Potter, Jr., Law Clerks Gone Wild, 34 Seattle U. L. Rev. 173, 232 (2010).

Second, long ago, I was a law clerk.  For almost two years, I served a judge on the United States Court of Appeals for the Eighth Circuit.  Fresh out of law school, I was young and dumb.  From my clerkship, I learned that young lawyers are not worth very much to the judge until just about the time the clerk leaves to go out into the world.

Third, when I became a federal trial judge, I decided to hire only career clerks to fill the two clerkship positions that each federal trial judge is allotted.  Fortunately, I got two very good ones.  Jan and Jim, my career clerks, possess more than 50 years of legal experience.  Both did extremely well in law school.  One was editor-in- chief of her law review.  Both clerked on our state supreme court.  One spent time as an assistant state attorney general, and the other became a partner and litigator in a highly respected firm.

Fourth, I decided on career law clerks because of how I viewed my primary task as a trial judge.  I have always believed that my primary job as a trial judge was to make decisions as fast I could do so.  Since that has always been my orientation, I knew that I wanted law clerks who could help me accomplish that task with a minimum of hand holding and training.   I needed seasoned lawyers to rely upon.  I did not and do not have time to deal with the young and the dumb (as I was some 40 plus years ago).

For those who say that judges have an obligation to train fledgling lawyers and hiring recent law graduates as short term clerks meshes with that training obligation, I say nuts.   Our job, at least at the trial level, is to be judges and not something else.

For those who say career law clerks have too much power, I say nuts (times two).   A judge can have valued career law clerks without ceding to those clerks the judge’s authority as a judge.  In no other business or profession would we make an argument that the decision maker ought to be helped by the inexperienced because the decision maker is too foolish or weak to make his or her own decisions if served by an experienced adviser.  Bluntly put, such an argument is rubbish.

Fifth, in 2007, driven by budgetary concerns, the Judicial Conference of the United States limited federal trial judges to one career law clerk plus one “term” clerk.  (Thankfully, Jan and Jim are grandfathered.)  Moreover, any new “term” clerk is limited to not more than four years of service.  I understand the budgetary concerns that drove that decision.  Respectfully, however,  I believe the decision was short sighted and remains so today.

It would have been far better to have allocated a sum certain to each judge with the allowance that the judge could use the money to hire his or her staff on such terms as the judge thought best so long as the judge did not break the budget.  Instead, newer judges will be forced to get along with rookies, and that is a real shame.  Perhaps the Judicial Conference will reconsider, but I am not hopeful given the sequester and related drama that is now unfolding at the center of the universe that we know as Washington, D.C.*

In summary, I could not get along without the skills and hard work of Jan and Jim, my career law clerks.  They make a middling judge like me better.

*The judiciary’s budget is a very small part — substantially less than one percent — of the entire federal budget.  In the scheme of things, we are not even a rounding error.  Yet Congress seems to have no concern about gutting the third branch of government by using the budgetary process to drain the life blood of the judiciary–our personnel.   It is a damn shame that the politicians have so little regard for a coequal branch of government.  But even more frightening, if this sequester and debt-ceiling nonsense continues, Congress will get exactly what it has paid for–a third-rate judiciary for a third-rate country.  That fear is not an exaggeration.

RGK

Photo credit:  beckstei’s photostream. Creative Commons License, http://creativecommons.org/licenses/by/2.0/deed.en

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