New Jersey Law Journal: Reflections From the Bench

This article provides some insights and background information for those who appear in federal court. The following reflects my own experience as a judge. I have not caucused with my former colleagues although I am confident that their views would greatly enhance the thoughts offered here.

Having recently stepped down as a United States District judge, I have been frequently asked about my time on the bench. The inquiries run the gamut: How did you like being a judge? Do the judges get along? What was the work like? What was persuasive? What was unconvincing? Did you wear your robes at home? I was never actually asked the last question (for the record—only on special occasions), and I could not provide an adequate answer to some of the others in a single article. But briefly, the work was fulfilling and demanding. The judges meet regularly, get along very well, and support each other. And as to the attorneys who appeared before me, I respected and admired excellent advocates.

This article provides some insights and background information for those who appear in federal court. The following reflects my own experience as a judge. I have not caucused with my former colleagues although I am confident that their views would greatly enhance the thoughts offered here.

1. Limited Jurisdiction Versus Broad Knowledge

Federal courts are courts of limited subject-matter jurisdiction, as any first-year civ pro student can tell you. If the Constitution does not authorize it and Congress has not legislated it, a federal court cannot hear it. That said, there are a quite a few matters that a federal district court can entertain—securities, qui tams, environmental, anti-trust, civil rights, health care, class actions, RICO, patents, copyrights, trademark, product liability, and employment—to name but a few. And that is before addressing the criminal and appellate docket. (Yes, certain appeals are taken to the district court.) And that is before wading into thorny procedural issues or matters that have special pleading rules (the PSLRA comes to mind).

The point is that there is no job that can prepare you for the breadth of subjects that you encounter and rule on as a federal judge. At best, prior experience can aid a new judge in a particular area of the law, except for the bankruptcy bench whose members were regular practitioners in the field. This wide array of topics is one of the reasons that being a federal judge is so rewarding. However, it is also the reason that it takes time to become comfortable in the job. My ability to address my docket efficiently changed dramatically over time.

2. Know Your Judge

Judges take their responsibility to each case seriously. Yet, we are human, and there are certain topics that pique our interest. Some of my former colleagues are terrific at multi-district litigation. Others are masters at qualified immunity in a Section 1983 analysis. And still others love patent cases. So, before appearing before a judge, find out what areas he or she has handled extensively. Then you will know whether you can get right to the heart of the matter when you do appear before that judge.

My own personal preference was to take the bench, state the caption, take appearances, review the materials that I had read, note the issue or issues to be addressed, and then indicate the areas about which I had questions. I would follow with specific inquiries. At the end of argument, I permitted counsel to address any other issues that he or she felt were necessary. My hope in this approach was to convey to counsel that I was prepared and ready to wade into the details. Another goal was to help counsel. I felt that if I did not give counsel the benefit of my preliminary views and questions, counsel would be left with no other choice but to recapitulate her entire brief.

3. Writing—Think Hemingway, Not Faulkner

Federal judges do a lot of reading—the pleadings, motions to dismiss, motions for judgment on the pleadings, motions for summary judgment, in limine motions, and so on. I greatly appreciated (and enjoyed) good writing. However, whenever I finished one brief, I had a stack of additional ones waiting. So, I honestly never got to the end of a brief and said to myself, “Wow, I wish that there were another 10 pages!” I did not have the time. At best, I would close the brief and put a handwritten note on the front that it was excellent.

Good legal writing is clear, concise and persuasive. To paraphrase an adage—I apologize for writing you a long letter, but I did not have time to write a short one. That is why I refer to Hemingway. He mastered economical prose. That is also why I counsel to avoid Faulkner (“Absalom, Absalom!” was a terrific sleep aid during college). Faulkner is an American icon, but his fictional county (Yoknapatawpha for those keeping score) is longer than some of Hemingway’s stories. More importantly, a judge who has a docket of hundreds of cases does not have time to decipher and interpret the legal version of “The Sound and the Fury.”

4. Oral Argument—Why?

Oral argument can be very helpful if it is necessary. When I first started as an attorney, I wanted to try cases—any cases—to get the experience. Now, upon return to private practice, I still want to try matters but only if I think that there is a good chance at victory (however that is defined in the contours of a case). In other words, I am not looking for the practice. For experienced attorneys, I felt the same way about oral argument as a judge. New attorneys were a different animal—I wanted to let them argue so they got comfortable on their feet. And if they made a mistake, I did not hold it against them.

When I first started on the bench, we were down judges, my civil docket exceeded 500 cases, and I was learning the job (see above). Then, I preferred written decisions for a few reasons. First, they were easier to manage; I knew when I could get an opinion out and then turn to the next one. Second, if I was granting the motion, the written decision provided clear guidance as to the reasons why. For example, an opinion could delineate the specific shortcomings that needed to be addressed when granting leave to replead. Third, and critically, I knew that by the next time I saw another motion in that particular case, I would have ruled on hundreds of motions in other matters. My prior opinion let me know exactly what to look for when the new round of motions came through.

Once my docket became more manageable, I started approaching oral argument like I now approach trials—I did not want to do it for the sake of doing it. In federal court, most counsel are experienced. Therefore, when I read their briefs, I was looking for a reason to hold oral argument. I wanted to have oral argument to clarify issues about which I had real questions. Subpar briefing signaled to me that the attorneys were not as vested in the case as they should be. (Every year, I received a few briefs that cited the old Conley notice pleading standard.) Similarly, briefs that raised a plethora of issues read like a law school issue-spotting exam essay. Cases may have problems, but 30 of them is unlikely. Those briefs signaled to me that the attorneys were not disciplined enough to separate the peas from the steak and were looking to the court to sort it out. At the same time, when I received good briefs and the issues were focused, I was much more likely to grant oral argument if the briefs justified such argument. If you are experienced counsel, and you want oral argument, my advice is to convince the judge that such argument will aid in the resolution of the motion.

In sum, federal judges take their roles seriously. Understanding where a judge stands in his or her career, the judge’s particular legal interests and background, and the benefits of good briefing will permit you to be a more effective advocate for your client.

Reprinted with permission from the October 6, 2023 issue of the New Jersey Law Journal. © 2023. ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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