The Northern District of Texas Bench Bar Conference met last week at the Four Seasons Resort and Club in Las Colinas. About 300 lawyers and judges signed up to attend. A spot-check of unclaimed name tags suggested that most of them made it.
Judicial panels fielded such arcane topics as mediation by judges, the limits of courtroom advocacy and the mediocrity of legal writing on both sides of the bench. There were quite a few moments of candor and/or wisdom. Below you’ll find a few of them.
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U.S. District Judge Brantley Starr, an NDTX newcomer, surprised more than a few advocates when he suggested that he might keep a closer eye on requests to seal documents and testimony that pass through his court. He thinks such protections have been abused by litigants and overindulged by the courts.
“There is a problem; the problem is the First Amendment,” he said. “These are public records.”
He professed no problem with legitimate concerns for privacy, trade secrets or other proprietary information; but he said he intends to review requests to assure that there is an actual need for secrecy.
“If they’re just emails that you want under seal because you don’t want to air your dirty laundry, I’m going to look very closely at that,” Judge Starr said.
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Pondering the need for better legal writing, U.S. District Judge Ed Kinkeade described a personal, if temporary, literary upgrade he managed to apply to his own court product.
“I had a law clerk who had won a Pulitzer Prize,” Kinkeade confided. “Amazingly, I would later meet people who would remark about how well I was writing.”
“It was actually just good hiring.”
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One panel interrupted itself to honor long-serving chief of the bankruptcy court, Judge Barbara Houser. Houser, who is retiring after two decades on the bench, will be honored April 30 with the unveiling of her formal portrait at the federal courthouse.
Even after retiring Judge Houser says she will continue her volunteer involvement as lead mediator in the issues surrounding the insolvency of the Commonwealth of Puerto Rico. Houser has been heavily involved in those debt negotiations for the past two years. “Obviously, I’m not very good at it,” she quipped, playfully suggesting she might do better to refer the Puerto Rico case to Jeff Kaplan, a former federal magistrate who now works extensively as a mediator.
“Or,” countered Kaplan, “you could start charging by the hour.”
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As is often the case at such conferences, virtually every judge spoke at some point about the continuing need for civility among lawyers. Judge after judge expressed their exasperation with frivolous motions, rude language and passive aggressive behavior in the conduct of cases before them.
In addition to poor writing, Judge Kinkeade said he holds little use for lawyers who use court processes to carry out client grudges or pad the hourly-billing process with repetitive, pointless motions.
“I get that it brings in an extra $50,000,” said Kinkeade. “But I can’t tell you how much time judges spend on useless motions.”
Sometimes, even a passion for justice can be misapplied; what’s acceptable before a jury can be unacceptable in other settings.
For instance Judge James Ho, recently appointed to the U.S. Fifth Circuit, said he finds it off-putting when lawyers mistakenly approach an appellate oral argument with the same emotional verve as they would a jury argument: “It is, and should be, considered an intellectual exercise.”
His colleague, Fifth Circuit Judge Catharina Haynes confided that seemingly hostile questions from the bench during oral argument can be misinterpreted. Often, she said, a seemingly hostile question may come from a sympathetic judge seeking help to overcome challenges from other judges. Her advice: “Treat any question from any judge as a softball.”
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Term overheard: “Smishing” or “SMShing”
The fraudulent use of texts (SMS) pretending to be from legitimate sources sent in an effort to try to provoke the exposure of passwords, bank accounts or other sensitive personal or corporate information.
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Judge Barbara Lynn, chief judge of the Northern District, said she has begun, in earnest, an effort to educate the public on the role of the judiciary. In an age of dwindling journalism resources and misguided popular culture, even some of our most educated citizens are ignorant or misguided about the actual duties of judges, she said. To try to stem that tide of false impressions, she’s begun accepting virtually any invitation to speak, even if it costs her a Sunday afternoon.
Asked why she didn’t focus her efforts on public school curricula where civic education has traditionally taken place, she had a quick response. “That’s beyond my reach. There’s too much politics, too many school districts to fight that battle. We’ve got to educate the people who are already out of school, and that’s a job for all of us.”
To that point she said she considered the room full of Bench Bar attendees as potential volunteers. When it was suggested that she could use the threat of a federal jury summons to generate volunteers, Judge Lynn promised not to resort to that kind of extreme.
“I do, however, have some nasty criminal appointments that might be coming your way,” she deadpanned.
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Judge Lynn also told the group she was seeking ways to create an historical society dedicated to the preservation of the history of the Northern District of Texas. Although judges cannot ethically be involved in fund-raising for such projects, she said she hoped some in the room might find the idea intriguing enough to help.
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Discussing the importance of preparation in briefs filed before his court, Judge Ho revealed a few tips from his own stellar career as an appellate advocate. While it is important to maintain an objective approach to the language of briefs and oral arguments, Judge Ho said he regularly availed himself of any opportunity to advocate an important point.
“I’ve even crafted the table of contents with an eye to advocacy,” Ho said.
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Term overheard: “Comfort Letter”
A letter issued by prosecutors assuring a lawyer’s client that the government doesn’t intend to pursue and prosecute violations uncovered by regulators. Don’t count on getting one, seemed to be the advice from Northern District AUSA Andrew Wirmani, who prosecuted the Forest Park Medical Center fraud and kickback cases.
“I’d find it difficult to write a letter like that without knowing everything about the case,” said Wirmani. This came as no surprise to Paul Coggins, a former US Attorney. Now a high-dollar, white collar defense attorney at Locke Lord, Coggins described the process of following regulatory punishment with criminal prosecution as “bayonetting the wounded.”
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Brantley Starr served twice for justices on the Texas Supreme Court. He said the finality of the work there, as the state’s highest court, often caused him anxiety: fear that his work would somehow result in an abject injustice.
“When I became a federal district judge I was relieved that there would be two levels of appeal above me,” Judge Starr said. “Then I learned that 89% of the cases heard at the district court level are never appealed. And those anxiety muscles fired up again.”
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Judge Carolyn Ann Krause of the U.S. Court of Appeals for the Third Circuit described the issue of wellness as critical in the profession:
- Suicide is the third-leading cause of death among lawyers. It is tenth in the general population.
- The #1 “unhappiest” job in America, as reported by Forbes, is that of “associate attorney.”
- 20% of licensed lawyers believe they have a problem with drinking. 50% report having had a serious episode of depression at some point during their career.
She maintained that a decline in the sense of autonomy that frustrates young lawyers is further influenced by such outside forces as the decline in jury trials: “How can you describe to a client the risks of going to trial if you’ve never had a jury trial?”
“It is not hard to see why the billable hour is regarded as the most autonomy-crushing mechanism imaginable,” Judge Krause said.
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When several newly minted federal judges were asked what past advice they found useful over the years, Judge Wesley Hendrix had the most…intriguing response.
He echoed advice he understood to be routinely dispensed to San Diego-based sailors heading for shore leave: “Don’t add to the population. Don’t subtract from the population. Don’t go to jail. But if you do – establish dominance, early on.”