Voice of the Judiciary
I sat down with Judge Rya Zobel on a sunny afternoon in August to talk to her about her first 35 years on the bench. The impetus for the interview was the fact that she had recently taken senior status. With her usual dynamism, however, the judge informed me that she has not reduced her caseload despite the change in status. So this was not a pre-retirement interview, but rather an opportunity to ask her to look back and share some of her thoughts about her court, the cases that have come before her, and (once a clerk, always a clerk) for her advice.
What was your path onto the bench?
Good luck. I became a law clerk right after law school and remained one for ten years because there were no law firm jobs for women at that time. Being a law clerk was a good job for me because I was able to spend time with my young children. I then went to Hill & Barlow, and later to Goodwin Proctor, where I became the first woman partner. There were four vacancies on the court in 1978, and it was clear that one of the slots would go to a woman. Someone sent me an application for the court, and I filled it out. I happened to be in the right place at the right time.
It was exciting to be the first woman on this court, albeit less so to be the only one for fifteen years. I had experienced a similar first when elected to partnership at Goodwin Proctor, and later when I became the Director of the Federal Judicial Center. I came to realize how important my firsts were to the women in this profession and, for that matter, to the men.
What are the significant changes you have seen since you went on the bench? Has the nature of the cases changed? How about the lawyering?
The nature of the cases being filed has changed over time. When I was a law clerk, the criminal side of the docket had a large number of Dyer Act cases [interstate auto theft], which we don’t see anymore. We also don’t see the bookie cases that we used to see. The nature of the sex offense cases has also changed. We used to have Mann Act cases; now we are flooded with child pornography cases. We used to have only a few drug cases; now we have piles of them – and they have huge sentencing consequences. We also have a lot of felon-in-possession cases, which come from state or local law enforcement authorities because of the long federal sentences. We don’t see many antitrust cases anymore. But we see a fair number of qui tam actions, often against pharmaceutical companies.
E-discovery is a huge change. There are millions of email communications to be dealt with. Nothing is ever deleted, and so the volume of material is huge. I think lawyers are panicked about overlooking an email that could turn out to be the smoking gun. As a result, discovery requires an awful lot of lawyer time and expense on the part of the client. There are also many disputes about how to sample the emails, the protocols to be used, and whose emails are to be searched. In some areas of the law, such as patent litigation, computers have changed not just discovery, but the substantive law. I have a case now, for example, where the lawyers rely on a theory that the amount of lost advertising is the measure of damages. One of the questions is how to define discovery in order to probe that theory.
Do you feel your court has changed and, if so, how?
The court is changing now after having been stable for many years. Within the last year, Judge Wolf, Judge Tauro, and I have gone senior; and before us, Judge Ponsor took senior status. So we’ve had four vacancies – and the new judges are younger, and come from a range of backgrounds. They already are making their own mark. For example, Denise Casper arranged a session for the existing judges to answer questions for the new judges – something we had never done before.
Also, I was the only woman on the court and now there are four. I never felt discriminated against by my colleagues, and I feel that all my colleagues have always respected my views. But having more women colleagues is certainly a wonderful change.
You’ve taken senior status around the same time as Judge Tauro, and the two of you shared a lobby back in the old courthouse in Post Office Square. I remember that you always chatted with each other as you went on or off the bench. It all felt very cozy and collegial. What are some of your recollections of Judge Tauro?
We had a very good relationship and I greatly admired how he ran his courtroom, and his smarts. When I first arrived at the court, Joe wanted to be helpful, which took the form of offering me advice. He was very experienced and I was very inexperienced, and so I wasn’t in the least offended . . . and there were times I actually took his advice [said with a smile].
I also admired Joe’s superb political instincts, by which I mean his ability to figure out how to solve problems involving personality issues as they arose in the courtroom. That skill can also be seen in what Joe did for our court. Joe is by nature a leader, and he made the court what it is today. When he became Chief, he was inclusive and really brought the court together. He strengthened the judges’ monthly meetings and instituted the liaison judge system in which each of us is assigned a particular area of responsibility. I, for example, am the court reporter liaison judge; other judges are responsible for the Bankruptcy Court, education, the jury, the U.S. Attorney’s Office, the Rules, the Criminal Justice Act, and immigration and naturalization. Joe started this system, and it has been incredibly effective for the organization.
When you have a court where judges have individual caseloads and operate as chiefs of their own domain, it is important for each judge to recognize that the court is an institution and cannot work as a bunch of individual chiefs. It is a big task to bring the court together. Not every court succeeds, and some are riven with disagreement. My court does not have those problems — the discussions during our meetings may at times be difficult, but they are never contentious and decisions are often reached by consensus. Joe laid the foundation for this culture. He was the person who arranged, for example, for us all to go each other’s swearings-in and other ceremonies. And subsequent chiefs have followed his lead. He did the institution a huge favor, and I am most grateful to him for that.
What do you see as the big challenges for your new colleagues?
Many of the new judges need to learn about sentencing — not only about the Guidelines, but also about themselves and how to view sentencing. It takes time, and it takes experience. They need to learn how to run a courtroom — gently but firmly, with respect for everyone in the courtroom. They need to learn to be concise, and how to hold their own counsel.
What advice would you give a new judge?
None. To some extent, you just have to do it.
What advice would you give a young lawyer?
Guard your reputation. Once gone, it is very hard to resurrect it. Lawyers may not understand that judges remember the lawyers who appear before them, and that we talk about them among ourselves.
What are some of your most memorable moments on the bench?
I remember a moment in Polaroid v. Kodak, when Edwin Land [co-founder of Polaroid] was on the stand. The lawyer asked him a question involving the science at issue in the case. Land leaned back and said, “That’s not the right question. This is the question you want to ask.” His response was very revealing to me because I had been very concerned about getting the science right. And then I realized that I did not need to be a scientist or necessarily to get the science right. Instead, I needed only to accept the science as it was presented by the lawyers. My job was simply to decide the case, not the science. And this understanding has made patent cases easier for me ever since.
I also remember a pair of cases that demonstrated to me the limits of a judge’s power. The first case involved a school bus driver strike in Boston. On a Friday afternoon (which, for some reason, is the time requests for injunctions are often filed), I issued an injunction ordering the drivers to return to work. They refused to obey. On Monday morning, the city sought to have the order enforced, and I held the drivers in contempt. Ironically, the marshals brought a bunch of school buses to the courthouse in order to take the striking drivers to jail. As they were taken off, other drivers were protesting outside the courthouse. It was mess, and I spent the next week desperately trying to get the case back on track and to help reach a settlement. I came to realize that, although I had the power to issue the injunction, I should not have done so.
A few months later, there was a wildcat strike against Greyhound and the drivers were throwing stones at the buses. The company sought an injunction. Instead of issuing one, I spoke directly to the union representatives who were in the courtroom. I told them that, although I knew it would be difficult, they needed to keep their members from destroying property and that they needed to talk to Greyhound management. I also told them to call me if they had any problems. Greyhound management was furious that I didn’t issue an injunction. But I was correct; a week later the case settled.
These two cases taught me an important lesson about the limits of a judge’s power.
Would you encourage someone today to become a judge?
Yes. Why? Because I think, as Judge Wyzanski said, being a United States District Judge is the best job in the law. It is infinitely variable and you learn constantly. Where else are you taught the provenance of a painting in the Museum of Fine Arts, how the internet runs, how cameras are made, how a small city runs itself, or how a river is affected by something that happens upstream? It is remarkable how much a judge can learn — and it is all for free.
Judge Rya W. Zobel was appointed to the United States District Court for the District Court of Massachusetts by President Carter in 1979. She served as the Director of the Federal Judicial Center from 1995 – 1999.
Judge Gabrielle R. Wolohojian is an Associate Justice of the Massachusetts Appeals Court. After graduation from law school, she served as a law clerk to Judge Rya Zobel of the United States District Court for the District of Massachusetts.