Voice of the Judiciary
As the most newly-minted judge in the Federal District of Massachusetts, I have been asked to reflect on my experience through the selection process while it is still relatively fresh in my mind. At least in this district, in my round (and as I learned at baby judge school, there is a wide variety between districts), the two Massachusetts senators formed a selection committee, headed by Judge Nancy Gertner (ret). The committee solicited applications. The application itself was long and detailed. It collected a lot of information which I am sure was helpful to the committee, but also required me to dig up long forgotten personal information (like addresses, phone numbers and jobs) going back to when I was 18 years old. Harder than it sounds. This likely served the dual purpose of providing information, but also sorting out who was truly committed to the process. The names of the approximately 12 committee members and the application itself were publicly available.
The front end of the process moved very quickly. Once the application deadline had passed (late January, 2014), I was asked to interview with the committee (approximately February). The interview questions were as wide ranging and diverse as the interests of the committee members and included topics such as temperament, role of a judge, reasons for wanting to be a judge, substantive legal questions, experience with various sorts of cases, views on discovery and professional and personal background. The next step was an interview with the two senators (approximately March). In my case, they interviewed me together, but I am not sure that is always the case. At some point thereafter (approximately April), I was notified that my name was being forwarded to the White House. This was the single most exciting moment of the process and one that I will always remember. I was in the lobby of a hotel, on vacation with my family, when my cell phone rang. I didn’t recognize the number and let it go to voice mail. It turned out to be Senator Warren herself, asking that I return the call. Needless to say, I returned the call very promptly. I have kept that voice mail – truly one of those calls you don’t really ever expect and certainly don’t forget.
After that, my primary contact with the process was through the Justice Department Office of Legal Policy rather than the Senators. My application, resume, background and professional qualifications were vetted by the FBI – which I know only because of the number of calls I got from people who had been contacted. There was an interview in the Old Executive Office Building that included White House Counsel staff and people from the Department of Justice, among others (but not the President). During this same time frame, I was also vetted by the ABA which traditionally has been given the opportunity to review candidates prior to their nomination and to share with the White House its opinion of an applicant’s qualifications. The vetting process is an odd thing to experience, in part because it can be awkward to interact with people that you realize are likely being interviewed about you. It’s also disquieting to know that you are being judged by committees of people whom you have never met and who don’t know you. At various points, I had the chance to respond generally to things that were said about me and my qualifications. On the one hand, some people are very generous in their assessment of others. That being said, there were also comments that seemed unfounded, but that were, in some instances, hard to defend against. It was also humbling and somewhat surprising to realize that strong endorsements could come from unexpected constituencies, but that the opposite was also true.
In approximately May, I was informed by the Office of the Legal Policy that the President was going to nominate me. Surprisingly, this moment was much less climactic than learning that my name was going to be forwarded to the President – largely because it was the culmination of a process that I knew was going on, rather than a surprise call. I was formally nominated on July 31, 2014. On September 17, I had my confirmation hearing which involved the Senate Judiciary Committee questioning a panel that consisted of me and 3 other nominees from other districts (3 Article III judges and 1 Article II judge). The hearing was not attended by all of the committee members and was shorter than I anticipated. The questioning was done by one Senator from each party. The Senators who attended and the ones that did not then had the opportunity to follow up the hearing with written questions. These were quite substantive and covered topics such as the death penalty, my view of precedent, appropriate judicial temperament, gay marriage, equal protection and the reach of the Commerce Clause.
On November 20, I was voted out of committee (which I learned from the Senate Judiciary website). This meant that my nomination could proceed to the Senate floor for a vote. I was given very little information about when the floor vote might happen, if at all. In my case, the votes for the group of judicial and other presidential nominees in which I was included took place on December 16, 2014, right before the Senate recessed for the year, and in literally the last series of votes before the recess. This was fortuitous given the less hospitable make-up of the new Senate for presidential nominees; I was aware that it was at least possible that my nomination might never be brought forward for a vote if it did not occur before the recess. I did not know the vote was going to happen beforehand, but I did know it was likely the last night of the session. I was able to watch the vote only because I had the television set turned on to CSPAN. Hearing my name called for a Senate vote was one of the other very big thrills of the process.
Once a nomination is voted on by the Senate, the President has to sign your commission which generally takes no more than a couple of days. At that point you are IN! I took a few weeks to wind up my practice. I was officially sworn in January 2015 (almost exactly a year after I submitted my application) and then had a more public ceremonial swearing in July – oddly enough a year to the day from my nomination.
Although that largely sums up my active participation in my nomination and confirmation, I am sure there were many machinations behind the scenes – not about me exactly, but more about the challenges of getting a large group of pending nominations (not just judicial) through the Senate as quickly and efficiently as possible. I appreciated and was repeatedly impressed throughout the process with how generously and selflessly various people worked to make sure that my nomination and confirmation continued to move forward, and I remain grateful for their encouragement and support.
Now that I am on the bench, I continue to feel very honored and lucky to have this job. I spend a lot of time thinking about how to do it right – in terms of correctly applying law to facts, but also in making sure that I treat litigants and their lawyers with respect and in trying to ensure that people, win or lose, feel like they were heard and their views fairly considered. A few other random thoughts:
I think about I Love Lucy, even if fleetingly, almost every day. This job is so much like the bon bons on the conveyor belt episode. The paper just keeps coming. For those of you (like my law clerk) too young to understand what I just said – find the episode. It’s a classic.
As a judge, I have repeatedly offered young associates in court the opportunity to make a brief argument on a motion once the lead attorneys have finished their presentations. Not once has anyone taken me up on this offer. I suspect that is because the young attorneys are wary of partner or client response. I will keep making the offer and hope that litigants will see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary. Just as I would like to see more young lawyers with speaking roles, I have also been struck by the relative paucity of female litigators and would similarly like to see more women in court.
I am aware that the women on the bench, particularly the few of us with younger children, are, to some extent, role models for other women and that we may have a unique perspective on some of the challenges facing women in the legal profession. I have been experimenting with a 10-4 trial day instead of the more usual 9-1, thinking that this might benefit parents who do school drop off, as well as resulting in fewer trial days for the jurors. I am also finding that as a judge, rather than a partner in a law firm with client and practice development responsibilities, I have much better control of my schedule (except for those times when I have no control over it at all). As a result, I am more likely to make it home for dinner with my family. That being said, the volume of work is huge and unrelenting and I almost always work for several more hour later in the evening.
Finally, for those who have asked, yes, some people treat me differently. Most people treat me the same, which I appreciate. That being said, the job has required me to give significant thought to personal relationships. All of the other judges have been incredibly welcoming and generous with their time and advice, but there is the adjustment of thinking of them as peers and the resulting reordering of my prior relationships with many of them. Similarly, many legal conflicts are easily identified and resolved, but determinations about the appearance of unfairness based on personal and past professional interactions can be much more nuanced. I believe that a judge should remain a part of the legal community, but there are challenges in maintaining those connections without compromising confidence in the fairness of the process. I pay a great deal of attention to this obligation, and am becoming more comfortable with the balancing as time goes on.
Judge Burroughs was sworn in as a United States District Court Judge for the District of Massachusetts in January 2015. Prior to joining the bench, she was a partner in the Boston law firm of Nutter McClennen & Fish. Before entering private practice, she served for sixteen years as an Assistant United States Attorney in Boston and Philadelphia.
By Judge Judith Gail Dein
Voice of the Judiciary
If you have had any cases in federal court, you have probably been asked at various times by the trial judge if your case is ripe for ADR (alternative dispute resolution), and if not now, when. The Alternative Dispute Resolution Act of 1998 requires that each United States District Court authorize the use of ADR in all civil actions. 28 U.S.C. §§ 651 et seq. In the District of Massachusetts, that means that you will have the option of going to mediation before someone who has contemporaneous experience both as a trial judge and as a mediator. In my mind, this is the best of all worlds (and, as they say, this article expresses only the opinion of its author!). I have had the honor of serving in these dual capacities since shortly after my appointment as a Federal Magistrate Judge in August 2000. While the roles are very different, it has been my experience that what I have learned in one capacity carries over, and makes me even more productive, in the other.
Mediations in the District of Massachusetts presently are conducted by all the Magistrate Judges as well as by Edward Harrington, a Senior District Judge who added mediations to his docket in 2009. Magistrate Judges also have an active role in civil cases filed in Federal Court. Many times we are referred specific pre-trial matters from the District Judge presiding over a case. In addition, we have our own dockets of civil cases over which we preside. With the consent of the parties, Magistrate Judges have the authority pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 to conduct all pre-trial proceedings as well as jury and jury-waived trials in any civil case in Federal Court. This means that we each try a number of civil cases, both jury and jury-waived, each year, ranging from one-day slip and fall cases to multi-week securities litigation, and everything in-between.
When I was appointed to the bench, the ADR program was run by District Judge David A. Mazzone, with the assistance of a panel of volunteer lawyers. Over time, Magistrate Judges were added to the roster of mediators and, with Judge Mazzone’s untimely death in October 2004, the volunteer panel was discontinued and the Magistrate Judges took the lead in conducting mediations. When a case is scheduled for mediation, it is assigned either randomly or in accordance with the parties’ request, if possible. The one caveat is that, except in extraordinary cases, we will not mediate any case in which we are the presiding judge or in which we may be referred pre-trial matters.
There is a real distinction between my role in cases in which I am serving as the mediator, and cases in which I am serving as the presiding judge. As a mediator, I view my role as helping the parties reach a resolution that meets their needs as best as possible. It is my responsibility to help the parties identify the real (sometimes as opposed to the “legal”) issues in dispute, and to help them define what they need to settle a case. It is also my role to help them understand the litigation process, their various alternatives about how best to proceed, and the consequences of certain decisions. I work as a negotiator, talking to each side separately, helping each side to understand that there usually are (at least) two sides to every story, and striving to identify a compromise that everyone can live with to his or her benefit.
So where do the “merits” of a dispute fit into a mediation? And what do the parties mean by the merits? If the parties mean what is “just,” that always fits into a mediation — it is the goal of the mediation to reach a resolution that is as fair as possible to all involved under the circumstances presented. If the parties mean who will prevail at trial, while depending on the case that certainly may be a significant factor in a settlement, it is one that I am loath to predict. As a mediator, I only have the very limited information that is provided to me by counsel and the parties, a snapshot that does not begin to address all the information or law that would be available at trial. Nor do I have any sense of the witnesses, and how the information would be introduced at trial. What I do have is the certainty that if you asked any trial lawyer if they have ever won a case they shouldn’t have won, they will proudly say yes. Of course that makes the inverse true, have they ever lost a case they shouldn’t have lost . . . .
So why does being a trial judge help me be an effective mediator? Obviously, as a trial judge, I do have some very practical experience with the litigation process which I can share with the parties. I also have encountered many of the substantive areas of the law that come before me as a mediator. More importantly, however, I think that as a trial judge I have experience in hearing how things actually sound in a courtroom. A trial is very different than a summary judgment argument, and I can help explore with the parties how their theory of the case may resonate with the fact finder and what they really think they can accomplish in a trial. Finally, and perhaps even most importantly, I bring to the parties in a mediation the assurance that their concerns are being heard and considered by a judicial officer. The setting may not be as formal as a trial, but their side of the story is being considered as seriously.
And why does being a mediator help me be an effective trial judge? On a very basic level, it reminds me continuously what our judicial system is all about. Obviously while presiding over a case the information I have is limited by the rules of evidence, and the dispute, appropriately, is defined by the parameters of the law. I rule on numerous motions as they come before me, and I hear the evidence as presented at trial. Having spent hours talking with the litigants and counsel in mediations, however, I am constantly aware of the people behind the disputes, and why the cases, and my rulings, are so significant. I know why the litigants have sought the assistance of the judicial system in resolving their disputes. Hopefully I will never forget that my role, in any capacity, is to help insure that justice is done.
Judith Gail Dein had over 20 years of civil litigation experience before being appointed as a Magistrate Judge on July 31, 2000. She is a 1976 graduate of Union College, Schenectady, New York, and received her J.D. from Boston College Law School in 1979. In 2011 she received a Community Peacemaker Award from the Community Dispute Settlement Center of Cambridge in recognition of the court’s Mediation Advocates Panel, which provides pro bono representation to pro se civil litigants in mediations.