Former Employee of Two Federal Judges: Ask Me (Almost) Anything - Page 7

[ARCHIVED THREAD] - Former Employee of Two Federal Judges: Ask Me (Almost) Anything (Page 7 of 7)

Posted: 12/22/2015 9:16:08 PM EDT

[#1]

You mentioned "sitting by designation."

I often wondered how that worked: do judges ask for the opportunity or are they asked?

ETA:

Also, are case assignments random or do some judges get sent certain types of cases

(I'm thinking of that scumbag Weinstein and the gun cases like Beretta NYC).

Posted: 12/22/2015 10:06:36 PM EDT

[#2]

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Quoted:
You mentioned "sitting by designation."
I often wondered how that worked: do judges ask for the opportunity or are they asked?

ETA:

Also, are case assignments random or do some judges get sent certain types of cases
(I'm thinking of that scumbag Weinstein and the gun cases like Beretta NYC).

View Quote

I suppose some district judges might ask, but the far more usual course is that they are invited. It's kind of like when your boss is hosting a party, and there is no open invitation to the whole company. You could ask to join in the fun, but unless you know the boss pretty well, that might come off awkwardly.

By statute, the chief judge of a circuit court of appeals may designate any district judge within the circuit to temporarily serve on the court. An out-of-circuit district or circuit judge may temporarily serve on a different court of appeals upon designation by the Chief Justice of the United States. Circuit judges can also be designated to sit on district courts. Finally, retired Supreme Court justices can be designated to sit on any court of appeals or district court. 28 U.S.C. ss. 291, 292, & 294.

Some circuits have a tradition of designating newly appointed district judges, so these newbie district judges can experience the appellate process and gain an understanding of how their orders will be reviewed. Furthermore, some circuits have a stronger culture of designation than others.

Typically, only district judges who enjoy a good reputation and relationship with their court of appeals will receive repeat designations.

Re: case assignments: cases are always randomly assigned by the clerk's office. Judges do have recusal lists, and senior judges can opt out of certain types of cases, but no judge can volunteer for certain categories, e.g. "send all the gun cases to me!" Random case-assignment systems are necessary to ensure fairness. A little while back, there were some concerns with the way cases were getting assigned in the Ninth Circuit, but they have straightened out that problem in the clerk's office.

Posted: 12/22/2015 10:22:08 PM EDT

[#3]

Mike, computer is dying so cannot go through everything..if this was asked and answered, let me know....

My question is regards to the gay marriage ruling. Did either feel there was an over-reach? Did the scotus legislate from the bench?

THANKS

Posted: 12/22/2015 10:49:31 PM EDT

[#4]

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Mike, computer is dying so cannot go through everything..if this was asked and answered, let me know....

My question is regards to the gay marriage ruling. Did either feel there was an over-reach? Did the scotus legislate from the bench?

THANKS

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My circuit judge was probably not happy at all when Anthony Kennedy's wonderful little piece of nonsensical philosophizing came down. My district judge probably laughed it off and rolled his eyes.

I suspect that both thought it was a naked power-grab, because that is exactly what it was.

One other thing on Obergefell: Notice that the majority found it necessary to overrule Baker v. Nelson (1970's SCOTUS case dismissing a same-sex marriage petition for "want of a substantial federal question"---i.e., an argument so ridiculous that the Court could summarily reject it on the merits). This means that, by the majority's own admission, until 2015, binding precedent of the Supreme Court held that there was no federal constitutional right to SSM, and that claims to such a right were, in essence, ridiculous. This means that all the lower federal courts who sided with the SSM plaintiffs had defied binding precedent of the Supreme Court, and the Sixth Circuit got it right. And yet the majority went on to celebrate all the pro-SSM rulings (most of which were based on federal constitutional grounds) by putting them in the appendix to its opinion. The majority demonstrated their own lawlessness by celebrating the fact that lower courts had defied binding precedent of the Supreme Court.

Posted: 12/23/2015 6:57:41 PM EDT

[#5]

Did you ever give any consideration to becoming a career law clerk (or whatever it is they called it where you're at)? Well, I guess I'd also need to ask, were there even such things where you're at?

Posted: 12/23/2015 6:58:12 PM EDT

[#6]

Just figured I'd bump this and see whether there are any other questions. If things stay slow through the next few days, I assume staff will want to lock it. Until then, I'll be around for whatever further questions you guys have.

Posted: 12/23/2015 7:34:34 PM EDT

[#7]

Another one: I have a federal judge neighbor and I once asked him how he knows when someone is lying.

He narrowed his eyes and said emphatically "I know."

I didn't press it, but maybe you could go into a little more detail.

Posted: 12/23/2015 7:45:57 PM EDT

[#8]

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Did you ever give any consideration to becoming a career law clerk (or whatever it is they called it where you're at)? Well, I guess I'd also need to ask, were there even such things where you're at?

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Not really. In general, career clerkships are just that: a career. In contrast, term clerkships give young attorneys experience and a credential to propel them into higher-level attorney positions, whether in government or the private sector. For folks who have long-term aspirations like private practice, teaching law, serving in government, or becoming a judge, it is important to get some time as an advocate in the courtroom, rather than remaining behind the scenes in a judge's chambers. Don't get me wrong, career clerks have an awesome gig, but they typically are not for those with different long-term plans.

Younger judges generally like having term clerks because it maximizes the influence they can have on the profession, and it helps them grow a network of young lawyers who will do cool things in law. Older judges, who often elect senior status and carry lighter caseloads, tend to gravitate toward employing a career clerk. If a judge's focus on mentoring young lawyers has waned and he/she won't be in the office every day, it makes sense to have a career clerk there with more experience and institutional knowledge. Even then, most older federal judges don't opt for 100% career clerks; they typically will have one career clerk and two or three term clerks.

Posted: 12/23/2015 7:58:42 PM EDT

[#9]

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Another one: I have a federal judge neighbor and I once asked him how he knows when someone is lying.
He narrowed his eyes and said emphatically "I know."
I didn't press it, but maybe you could go into a little more detail.

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Judges are good at smelling bullshit because they smell it almost every day.

Posted: 12/24/2015 3:07:53 PM EDT

[#10]

What's the most unusual thing you've dealt with as a clerk?

Posted: 12/26/2015 12:06:42 AM EDT

[#11]

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What's the most unusual thing you've dealt with as a clerk?

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A fraud case that turned into an attempted murder of a witness. People do stupid things when they're awaiting trial.

Posted: 12/26/2015 12:32:00 AM EDT

[#12]

Do you ever enjoy legal drama shows like Law and Order or The Good Wife, or is it too fake to enjoy?

Posted: 12/26/2015 11:11:10 AM EDT

[#13]

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Do you ever enjoy legal drama shows like Law and Order or The Good Wife, or is it too fake to enjoy?

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I'm not a big TV watcher, but I don't have any aversion to watching legal dramas. I try not to let a few inaccuracies keep me from enjoying a good storyline.

Posted: 12/26/2015 4:47:10 PM EDT

[#14]

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Federal judges employ law clerks to assist them in the performance of their judicial duties. Think about it. Every powerful person has a lot of stuff to do. A CEO, a legislator, a university president, etc. They need to delegate tasks to competent people to make their work efficient and to enable them to handle such a large amount of work. Judges are no different. They handle hundreds, sometimes thousands of cases per year. No one person can possibly do all of the work needed to dispose of all pending matters.

My job was to perform whatever duties were assigned. I occasionally got them coffee. I also helped them analyze cases, research and talk through difficult legal issues, and draft their orders and opinions. I also got to learn a huge amount from them.

I chose to do a trial and an appellate clerkship so I could get insight into both processes (they are quite different). I was also motivated to clerk by the interesting nature of the work and the career opportunities that clerking opens up.

I got paid by the U.S. Courts by direct deposit every other Friday, but if you are a taxpayer, then I guess it would be a more complete answer to say that I got paid by you. So thanks!

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Quoted:

what was your job? i don't understand why judges have employees.. did you get them coffee and file their papers?
why two? explain what you did and why you did it. and who paid you? they give you cash on Fridays?

Federal judges employ law clerks to assist them in the performance of their judicial duties. Think about it. Every powerful person has a lot of stuff to do. A CEO, a legislator, a university president, etc. They need to delegate tasks to competent people to make their work efficient and to enable them to handle such a large amount of work. Judges are no different. They handle hundreds, sometimes thousands of cases per year. No one person can possibly do all of the work needed to dispose of all pending matters.

My job was to perform whatever duties were assigned. I occasionally got them coffee. I also helped them analyze cases, research and talk through difficult legal issues, and draft their orders and opinions. I also got to learn a huge amount from them.

I chose to do a trial and an appellate clerkship so I could get insight into both processes (they are quite different). I was also motivated to clerk by the interesting nature of the work and the career opportunities that clerking opens up.

I got paid by the U.S. Courts by direct deposit every other Friday, but if you are a taxpayer, then I guess it would be a more complete answer to say that I got paid by you. So thanks!

i would have never thought that was a process for lawyers to go through. very interesting. do all lawyers clerk?

Posted: 12/26/2015 5:02:29 PM EDT

[#15]

What are the federal judges' attitudes regarding pro se plaintiffs in civil cases?

The state judges always seem like they go out of their way to accommodate pro se plaintiffs. One local judge told me that the state appeals courts love to overturn civil judgements, after a pro se plaintiff's case has been dismissed. Especially when there's a big company involved against a little guy.

Posted: 12/26/2015 5:06:44 PM EDT

[#16]

How were those 2254's and 2255's eh?

I'm also an attorney.

Posted: 12/26/2015 10:57:51 PM EDT

[#17]

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i would have never thought that was a process for lawyers to go through. very interesting. do all lawyers clerk?

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Quoted:

Quoted:
what was your job? i don't understand why judges have employees.. did you get them coffee and file their papers?

why two? explain what you did and why you did it. and who paid you? they give you cash on Fridays?

Federal judges employ law clerks to assist them in the performance of their judicial duties. Think about it. Every powerful person has a lot of stuff to do. A CEO, a legislator, a university president, etc. They need to delegate tasks to competent people to make their work efficient and to enable them to handle such a large amount of work. Judges are no different. They handle hundreds, sometimes thousands of cases per year. No one person can possibly do all of the work needed to dispose of all pending matters.

My job was to perform whatever duties were assigned. I occasionally got them coffee. I also helped them analyze cases, research and talk through difficult legal issues, and draft their orders and opinions. I also got to learn a huge amount from them.

I chose to do a trial and an appellate clerkship so I could get insight into both processes (they are quite different). I was also motivated to clerk by the interesting nature of the work and the career opportunities that clerking opens up.

I got paid by the U.S. Courts by direct deposit every other Friday, but if you are a taxpayer, then I guess it would be a more complete answer to say that I got paid by you. So thanks!

i would have never thought that was a process for lawyers to go through. very interesting. do all lawyers clerk?

Very few do, and one reason is that the opportunities are limited. Federal judges typically have two to three (trial) or four (appellate / SCOTUS). State appellate judges and justices usually have two to three. That represents just a small fraction of entry level positions in the legal job market.

Posted: 12/26/2015 11:09:11 PM EDT

[#18]

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What are the federal judges' attitudes regarding pro se plaintiffs in civil cases?
The state judges always seem like they go out of their way to accommodate pro se plaintiffs. One local judge told me that the state appeals courts love to overturn civil judgements, after a pro se plaintiff's case has been dismissed. Especially when there's a big company involved against a little guy.

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All the federal judges whom I've met are big on giving people their day in court, regardless of whether they have an attorney. No one likes to throw out a case on the pleadings (unless it is clear that the plaintiff has no legal claims), especially for an unrepresented litigant.

The caselaw says that pro se pleadings will be liberally construed. Basically, if a pro se pleading can be read to make legal sense, then it will.

Posted: 12/26/2015 11:13:53 PM EDT

[#19]

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How were those 2254's and 2255's eh?

I'm also an attorney.

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They were not the first thing in the pile that I reached for, that's for sure! They also make good intern projects. ;-)

Posted: 12/26/2015 11:50:14 PM EDT

[#20]

I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

Posted: 12/26/2015 11:51:27 PM EDT

[#21]

Mr. Smith-

Thank you for the very illuminating thread. It's always cool to get a better picture of what happens behind the scenes.
I have been involved in one Federal court trial-a civil trial. The judge seemed pretty reasonable throughout the trial for what it's worth and seemed pleased with the verdict as being reasonable also (I agreed, I voted for that verdict each time)

So I guess the judge was just as reasonable as I am.

Posted: 12/27/2015 3:31:52 PM EDT

[#22]

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I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

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Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

Posted: 12/28/2015 8:43:01 PM EDT

[#23]

Bump to see if there are any other questions.

Posted: 12/28/2015 10:50:10 PM EDT

[#24]

Well, if this thread sees no more activity in the next 24 hrs, I'll go ahead and let the mods know it's time to lock it. In the meantime, I'll keep checking my PM inbox.

Posted: 12/29/2015 10:59:05 AM EDT

[#25]

Super cool thread.

I think most of us aren't educated well enough to know what to ask.

Posted: 12/29/2015 11:12:28 AM EDT

[#26]

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Wow.

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The Constitution doesn't require federal judges to be lawyers or have legal training.

Wow.

And if memory serves me right Constitutional Law 101 isn't even a core curriculum requirement in obtaining a J.D. at Harvard Law school!

Posted: 12/29/2015 1:16:22 PM EDT

[#27]

Purchasing gardening supplies and brewing tea as probable cause for SWAT raid..

Thoughts?

ETA I'm kind of up in the air on responsibility here. This decision seems to rest on the fact that a warrant was granted, but was there really PC to grant one in the first place? Can the plaintiffs seek relief from the manufacturer of the field test kits?

Posted: 12/29/2015 3:49:49 PM EDT

[#28]

Quote History

Quoted:
Purchasing gardening supplies and brewing tea as probable cause for SWAT raid..

Thoughts?

ETA I'm kind of up in the air on responsibility here. This decision seems to rest on the fact that a warrant was granted, but was there really PC to grant one in the first place? Can the plaintiffs seek relief from the manufacturer of the field test kits?

View Quote

Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

Posted: 12/29/2015 4:08:12 PM EDT

[#29]

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Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

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Quoted:

Quoted:
Purchasing gardening supplies and brewing tea as probable cause for SWAT raid..

Thoughts?

ETA I'm kind of up in the air on responsibility here. This decision seems to rest on the fact that a warrant was granted, but was there really PC to grant one in the first place? Can the plaintiffs seek relief from the manufacturer of the field test kits?

Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

But, but, but, the judge should be fired!

I'm a 1983 plaintiff's attorney. I've been very impressed by federal judges. It's just so cool that a citizen can file a complaint and that a federal judge, appointed by the POTUS will dive all through it and explain why, or why not, they may be right or wrong. By contrast, most state judges suck. Then at the Circuit level, you get treated with such respect.

One the coolest federal judges I met, I walked into his chambers and he was listening to Lynard Skynard and spitting his dip into a spitoon. Hell yeah.

Posted: 12/29/2015 4:14:43 PM EDT

[#30]

Great thread. I'm a civil litigator practicing primarily in federal court and appreciate the insights you're offering. I clerked for a BK judge before deciding that I hate BK law, but had a great time during my clerkship.

So everyone understands, not every asshole who goes to law school gets to clerk for a fed circuit judge. It's nearly instant credibility to have even a federal district court clerkship on your resume and even more so for a fed circuit court clerkship.

Posted: 12/29/2015 4:16:18 PM EDT

[#31]

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Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

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Quoted:
I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

I had a federal District Court judge set aside the jury's defense verdict in a 1983 excessive force case (we were the plaintiff, so we lost). It was on video. Beating of an arrestee during processing at a holding facility. The jury saw the video, but apparently just didn't give a shit. My guy had tattoos on his knuckles and his neck, and I forgot to bring him a turtle neck shirt.

And he had told the officer to shove his badge up his ass, allegedly. Anyways, the judge said the officers were full of shit. So he set it aside and found a civil rights violation as a matter of law. It held up on appeal to the Circuit Court as well. Only one like it I've ever heard of - especially for a plaintiff.

Posted: 12/29/2015 4:19:10 PM EDT

[#32]

I frequently litigate very complex insurance disputes in fed ct and always wonder if the judges even understand the more complex aspects of the cases.

I also often wonder how much deference judges give their clerks input in deciding motions. Frankly, I've been before judges who clearly hadn't read all of the briefing even for MTD or MSJ hearings. Did you ever deal with a judge who did not read all of the briefing before hearings? How much do your judges rely on your bench memos vs. the parties' moving papers?

Posted: 12/29/2015 4:26:27 PM EDT

[#33]

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Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

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Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

Yeah, I get that. But buying "something" from a gardening store and a terrible field test just don't sound like convincing probable cause to me.

the order granting summary judgment looks correct.

Certainly understand that.

Posted: 12/29/2015 6:17:57 PM EDT

[#34]

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I frequently litigate very complex insurance disputes in fed ct and always wonder if the judges even understand the more complex aspects of the cases.

I also often wonder how much deference judges give their clerks input in deciding motions. Frankly, I've been before judges who clearly hadn't read all of the briefing even for MTD or MSJ hearings. Did you ever deal with a judge who did not read all of the briefing before hearings? How much do your judges rely on your bench memos vs. the parties' moving papers?

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I'm sure every judge is different, but my district judge never had me do memos. If a hearing on a motion got scheduled, the judge prepared by reading the parties' filings, and nothing else. I drafted only orders, and the drafting always took place after any hearings held on the motion.

For my appellate clerkship, my judge skimmed the parties' briefs, then the clerks prepared bench memos, then the judge reviewed both the clerks' memos and the parties' briefs together.

Posted: 12/29/2015 7:37:35 PM EDT

[#35]

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Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

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Quoted:

Quoted:

Purchasing gardening supplies and brewing tea as probable cause for SWAT raid..

Thoughts?

ETA I'm kind of up in the air on responsibility here. This decision seems to rest on the fact that a warrant was granted, but was there really PC to grant one in the first place? Can the plaintiffs seek relief from the manufacturer of the field test kits?

Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

I can understand the police being in a position where they trusted the test kit because that's a reasonable assumption. Now that they know the kit is potentially very inaccurate, can they continue to use it exactly as before? Or now that they know the 70% false positive, are they going to have to do something else (maybe just switch to a different brand of kit, one that they don't know it's accuracy so they can again assume it is 'accurate enough')?

Posted: 12/29/2015 8:34:33 PM EDT

[#36]

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I can understand the police being in a position where they trusted the test kit because that's a reasonable assumption. Now that they know the kit is potentially very inaccurate, can they continue to use it exactly as before? Or now that they know the 70% false positive, are they going to have to do something else (maybe just switch to a different brand of kit, one that they don't know it's accuracy so they can again assume it is 'accurate enough')?

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Quoted:

Quoted:
Purchasing gardening supplies and brewing tea as probable cause for SWAT raid..

Thoughts?

ETA I'm kind of up in the air on responsibility here. This decision seems to rest on the fact that a warrant was granted, but was there really PC to grant one in the first place? Can the plaintiffs seek relief from the manufacturer of the field test kits?

Probable cause is a pretty low standard when you think about it. Basically, it means that officers need enough facts to generate a reasonable belief that a crime has been committed or that evidence of a crime is present. Not every time that LE has probable cause will the suspect end up being guilty.

According to the facts recounted in the opinion, it doesn't appear that the officers had a reason to think the field tests were inaccurate. I think a warrant was justified given the test results. And the warrant allowed searches for any marijuana, not just evidence of a large scale grow op. From my brief review, the order granting summary judgment looks correct.

Re: the kits manufacturer, the plaintiffs could sue and argue that the manufacturer should have known the kits are too inaccurate for law enforcement use. No idea whether they could produce evidence to support such a claim though.

I can understand the police being in a position where they trusted the test kit because that's a reasonable assumption. Now that they know the kit is potentially very inaccurate, can they continue to use it exactly as before? Or now that they know the 70% false positive, are they going to have to do something else (maybe just switch to a different brand of kit, one that they don't know it's accuracy so they can again assume it is 'accurate enough')?

If a plaintiff can produce evidence that LE knew the kits are utterly unreliable and failed to disclose that fact in the warrant application, he will have a much stronger case that--I think--should survive a summary judgment motion. The facts will matter though. Just how inaccurate are the kits? And how much did LE know about the problem at the time they applied for the warrant?

Posted: 12/29/2015 9:52:04 PM EDT

[#37]

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Super cool thread.

I think most of us aren't educated well enough to know what to ask.

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There's no need for educated questions. My main purpose in creating this thread was to educate nonlawyers about the federal court system. I'm happy to answer the "how do they take their coffee" / "what's underneath their robes" type questions, too.

Posted: 12/29/2015 10:40:30 PM EDT

[#38]

What do you do with people/attorneys who file multiple frivolous PFRs?

Posted: 12/30/2015 1:50:03 AM EDT

[#39]

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I had a federal District Court judge set aside the jury's defense verdict in a 1983 excessive force case (we were the plaintiff, so we lost). It was on video. Beating of an arrestee during processing at a holding facility. The jury saw the video, but apparently just didn't give a shit. My guy had tattoos on his knuckles and his neck, and I forgot to bring him a turtle neck shirt.

And he had told the officer to shove his badge up his ass, allegedly. Anyways, the judge said the officers were full of shit. So he set it aside and found a civil rights violation as a matter of law. It held up on appeal to the Circuit Court as well. Only one like it I've ever heard of - especially for a plaintiff.

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Quoted:
I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

I had a federal District Court judge set aside the jury's defense verdict in a 1983 excessive force case (we were the plaintiff, so we lost). It was on video. Beating of an arrestee during processing at a holding facility. The jury saw the video, but apparently just didn't give a shit. My guy had tattoos on his knuckles and his neck, and I forgot to bring him a turtle neck shirt.

And he had told the officer to shove his badge up his ass, allegedly. Anyways, the judge said the officers were full of shit. So he set it aside and found a civil rights violation as a matter of law. It held up on appeal to the Circuit Court as well. Only one like it I've ever heard of - especially for a plaintiff.

I could tell you about another one in Ohio. The inmate was found guilty of assaulting the officer in state court and got added time for it (this was in a state prison, not a jail). The jury found the officers not guilty of excessive force. It was set aside and a new trial granted after the fact. This decision was handed down at the close of business on Christmas Eve. The defendants had left the courtroom thinking that it was finally over only to find out after New Year's Day that they had to do it all over again. The second time around the defendants were not permitted to use some of the evidence that they were in the first trial even though the very same judge had permitted it the first time, and they lost. That's why I brought the topic up to begin with. So my next question is that if a judge can just nullify the jury's verdict then why go through the charade of a jury trial?

Posted: 12/30/2015 2:06:54 AM EDT

[#40]

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Quoted:
Do you know what the difference is between God and an Article III judge?

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Had a conversation a while back with a local judge who's friend (also a local judge) became a federal judge. He said he noticed a distinct change in his friend's attitude toward him, didn't have time for him anymore etc..... Just a general "my shit don't stink now" attitude.

Posted: 12/30/2015 11:00:53 AM EDT

[#41]

How closely did you scrutinize briefs for "blue booking" errors?

A more serious question:
What was the worst case, if any, of an attorney misrepresenting case law in a brief? What was your judge's reaction?

When I was clerking with a small litigation firm while in law school I was astounded by what appeared to me to be negligent errors in opposing counsel's citations to state law cases that had been long overturned.

Posted: 12/30/2015 7:53:57 PM EDT

[#42]

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Quoted:
What do you do with people/attorneys who file multiple frivolous PFRs?

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I assume you mean petitions for review of immigration decisions in the court of appeals? I never did any work on those, but I assume the process was the same for how any other frivolous filings were handled. Typically, the staff attorney's office kept track of abusive or frivolous filings, and at some point, a panel would issue a warning that further abusive or frivolous filings would result in a monetary sanction, which would have to be paid before further filings would be permitted.

Posted: 12/30/2015 8:04:16 PM EDT

[#43]

Quote History

Quoted:

I could tell you about another one in Ohio. The inmate was found guilty of assaulting the officer in state court and got added time for it (this was in a state prison, not a jail). The jury found the officers not guilty of excessive force. It was set aside and a new trial granted after the fact. This decision was handed down at the close of business on Christmas Eve. The defendants had left the courtroom thinking that it was finally over only to find out after New Year's Day that they had to do it all over again. The second time around the defendants were not permitted to use some of the evidence that they were in the first trial even though the very same judge had permitted it the first time, and they lost. That's why I brought the topic up to begin with. So my next question is that if a judge can just nullify the jury's verdict then why go through the charade of a jury trial?

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Quoted:

Quoted:
I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

I had a federal District Court judge set aside the jury's defense verdict in a 1983 excessive force case (we were the plaintiff, so we lost). It was on video. Beating of an arrestee during processing at a holding facility. The jury saw the video, but apparently just didn't give a shit. My guy had tattoos on his knuckles and his neck, and I forgot to bring him a turtle neck shirt.

And he had told the officer to shove his badge up his ass, allegedly. Anyways, the judge said the officers were full of shit. So he set it aside and found a civil rights violation as a matter of law. It held up on appeal to the Circuit Court as well. Only one like it I've ever heard of - especially for a plaintiff.

I could tell you about another one in Ohio. The inmate was found guilty of assaulting the officer in state court and got added time for it (this was in a state prison, not a jail). The jury found the officers not guilty of excessive force. It was set aside and a new trial granted after the fact. This decision was handed down at the close of business on Christmas Eve. The defendants had left the courtroom thinking that it was finally over only to find out after New Year's Day that they had to do it all over again. The second time around the defendants were not permitted to use some of the evidence that they were in the first trial even though the very same judge had permitted it the first time, and they lost. That's why I brought the topic up to begin with. So my next question is that if a judge can just nullify the jury's verdict then why go through the charade of a jury trial?

Aside from impropriety issues, a verdict can be set aside only when the law or evidence don't support it (i.e., no reasonable jury could have returned the verdict). A judge might let a case go to the jury, even though he thinks that one side failed to prove its case at trial, because he has faith that the jury will decide correctly, and a jury verdict will be much harder to overturn on appeal than a judgment as a matter of law or JNOV. During my trial clerkship, my judge had one issue in a criminal trial that was borderline, and the judge erred on the side of sending it to the jury for the reason I just gave. The verdict came out the right way, so my judge didn't have to confront the issue of whether to set the verdict aside. I think that's generally how things go. Juries usually get it right, so judges err on the side of submitting the case to the jury even when it appears that one side failed to prove its case during the trial.

I should emphasize that trials where a party fails to put forward sufficient evidence to send the case to the jury are very rare, at least in the federal system.

Posted: 12/30/2015 8:15:44 PM EDT

[#44]

Quote History

Quoted:
How closely did you scrutinize briefs for "blue booking" errors?

A more serious question:
What was the worst case, if any, of an attorney misrepresenting case law in a brief? What was your judge's reaction?

When I was clerking with a small litigation firm while in law school I was astounded by what appeared to me to be negligent errors in opposing counsel's citations to state law cases that had been long overturned.

View Quote

I, my fellow clerks, and my appellate judge noticed almost all bluebook errors (my trial judge didn't seem to notice or care). I personally think that the bluebook system is overrated, and that consistency, accuracy, and completeness of citation are more important than adherence to a system of arbitrary rules invented by law students. But bluebooking does convey attention to detail that enhances an attorney's credibility.

In my trial clerkship, an attorney selectively quoted a case in a filing to misrepresent what it actually held. My judge wasn't too happy, but there was no consequence (aside from losing). In my appellate clerkship, a party completely misunderstood why a constitutional provision was at issue in the case and cited some inapplicable caselaw. The party's counsel got called out for it in the opinion.

Posted: 1/3/2016 9:50:50 PM EDT

[#45]

Quote History

Quoted:

Aside from impropriety issues, a verdict can be set aside only when the law or evidence don't support it (i.e., no reasonable jury could have returned the verdict). A judge might let a case go to the jury, even though he thinks that one side failed to prove its case at trial, because he has faith that the jury will decide correctly, and a jury verdict will be much harder to overturn on appeal than a judgment as a matter of law or JNOV. During my trial clerkship, my judge had one issue in a criminal trial that was borderline, and the judge erred on the side of sending it to the jury for the reason I just gave. The verdict came out the right way, so my judge didn't have to confront the issue of whether to set the verdict aside. I think that's generally how things go. Juries usually get it right, so judges err on the side of submitting the case to the jury even when it appears that one side failed to prove its case during the trial.

I should emphasize that trials where a party fails to put forward sufficient evidence to send the case to the jury are very rare, at least in the federal system.

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Quote History

Quoted:

Quoted:
I've found this to be a very informative thread and have enjoyed reading it. I do have a question for you. Have you ever heard of a Federal Judge setting aside a jury's verdict? And if so, for what cause? Thanks for taking the time to share your insights with us.

Nobody did in our courthouse during my time in chambers. The only reasons to set aside a verdict would be if the law or evidence could not support the verdict (but in such a case, it should not have been submitted to the jury in the first place), or if there was some impropriety in the jury deliberations that came to light after the verdict.

I had a federal District Court judge set aside the jury's defense verdict in a 1983 excessive force case (we were the plaintiff, so we lost). It was on video. Beating of an arrestee during processing at a holding facility. The jury saw the video, but apparently just didn't give a shit. My guy had tattoos on his knuckles and his neck, and I forgot to bring him a turtle neck shirt.

And he had told the officer to shove his badge up his ass, allegedly. Anyways, the judge said the officers were full of shit. So he set it aside and found a civil rights violation as a matter of law. It held up on appeal to the Circuit Court as well. Only one like it I've ever heard of - especially for a plaintiff.

I could tell you about another one in Ohio. The inmate was found guilty of assaulting the officer in state court and got added time for it (this was in a state prison, not a jail). The jury found the officers not guilty of excessive force. It was set aside and a new trial granted after the fact. This decision was handed down at the close of business on Christmas Eve. The defendants had left the courtroom thinking that it was finally over only to find out after New Year's Day that they had to do it all over again. The second time around the defendants were not permitted to use some of the evidence that they were in the first trial even though the very same judge had permitted it the first time, and they lost. That's why I brought the topic up to begin with. So my next question is that if a judge can just nullify the jury's verdict then why go through the charade of a jury trial?

Aside from impropriety issues, a verdict can be set aside only when the law or evidence don't support it (i.e., no reasonable jury could have returned the verdict). A judge might let a case go to the jury, even though he thinks that one side failed to prove its case at trial, because he has faith that the jury will decide correctly, and a jury verdict will be much harder to overturn on appeal than a judgment as a matter of law or JNOV. During my trial clerkship, my judge had one issue in a criminal trial that was borderline, and the judge erred on the side of sending it to the jury for the reason I just gave. The verdict came out the right way, so my judge didn't have to confront the issue of whether to set the verdict aside. I think that's generally how things go. Juries usually get it right, so judges err on the side of submitting the case to the jury even when it appears that one side failed to prove its case during the trial.

I should emphasize that trials where a party fails to put forward sufficient evidence to send the case to the jury are very rare, at least in the federal system.

So basically the judge gets to say "Hey there's something that might be a problem here but I'm going to send it to the jury anyway because what the hell, if they don't find how I think they should I'll just overturn their verdict and start a new trial and waste shitloads more of the taxpayer's money." I have a fundamental problem with that. On many levels. Especially knowing some of the things that have gone on in the Southern District of Ohio. It's pretty much a liberal, authority hating court. If I'm not mistaken we've got 4 Obama appointees, a Clinton appointee, a Carter appointee, a Bush appointee and a Reagan appointee. Just a little lopsided, wouldn't you say? I know in the case I referenced earlier that the defendants were basically told by their attorney that it would be cheaper to just pay the inmate than to appeal the decision. Imagine that. And they got to pay the inmate's attorney fees as well.

Posted: 1/4/2016 11:29:29 PM EDT

[#46]

Quote History

Quoted:

So basically the judge gets to say "Hey there's something that might be a problem here but I'm going to send it to the jury anyway because what the hell, if they don't find how I think they should I'll just overturn their verdict and start a new trial and waste shitloads more of the taxpayer's money." I have a fundamental problem with that. On many levels. Especially knowing some of the things that have gone on in the Southern District of Ohio. It's pretty much a liberal, authority hating court. If I'm not mistaken we've got 4 Obama appointees, a Clinton appointee, a Carter appointee, a Bush appointee and a Reagan appointee. Just a little lopsided, wouldn't you say? I know in the case I referenced earlier that the defendants were basically told by their attorney that it would be cheaper to just pay the inmate than to appeal the decision. Imagine that. And they got to pay the inmate's attorney fees as well.

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Without commenting on the particular case you describe because I'm not familiar with it, I guess I'm not as bothered by the phenomenon as you are. In a civil case, by the time a trial begins, the defendant has had a chance to move for dismissal, and both parties have had a chance to move for judgment on the pleadings and summary judgment. If the case doesn't get resolved at these stages, that means that both parties have discovered enough evidence to go before a jury. A denial of cross motions for summary judgment is an express judicial finding to that effect. If a party moves for judgment as a matter of law during the trial, and if the question is close, it makes sense to err on the side of sending it to the jury, subject to revisiting a renewed motion later (as FRCP 50 allows). We already know that the parties discovered enough evidence to support their case; the question is merely whether they introduced enough of that evidence during the trial---something that any minimally competent attorney should be able to do. The judge can't really take forever to consider the motion; jurors and the parties are all sacrificing their time and resources to put the trial on, and a judge shouldn't hold things up for days or weeks while considering an uncomplicated (but perhaps close-call) motion. With the impetus to decide quickly and the huge amount of resources already expended during the pre-trial motions and discovery stages, any doubt should tip in favor of going to the jury. A motion for judgment as a matter of law comes, at the earliest, after the plaintiff has put on his case in chief. At that point, the vast majority of litigational resources have already been expended. Not too much more is wasted by denying the motion and continuing with the rest of the trial. But an erroneously granted motion for judgment as a matter of law, on the other hand, would be a huge waste of resources.

Posted: 1/7/2016 10:55:17 PM EDT

[#47]

Alright guys, this has been fun, but it looks like it's time to lock it. I hope that you have enjoyed the discussion as much as I have, and that maybe you learned something new about the federal court system. If nothing else, you've learned that some of your fellow arfcommers work for "the man." You never know when someone might be reading or replying to your posts from inside a government building, maybe even a federal courthouse.

- MS, over and out.