April 01, 2012

Judicial Mediation: Two Judges' Philosophies

Two federal judges outline the philosophies on which they ground their judicial settlement efforts.

Steven J. Miller

Download a printable PDF of this article (membership required).

Some judges press hard for settlement; some don’t even try. In a roundtable discussion with Associate Editor Steven J. Miller, Judge Dan Aaron Polster of the Northern District of Ohio and Magistrate Judge Jeremiah J. McCarthy of the Western District of New York set forth the philosophies on which their judicial settlement efforts, at times even aggressive judicial settlement efforts, are grounded.


SJM: Each of you has a distinct judicial philosophy; what is it and where did it come from?


JUDGE POLSTER: My parents raised me to work hard and treat people with respect—two things I can control. I found that if I do that, people will forgive almost any mistake I could make, and I’ve made a lot of them.


JUDGE McCARTHY: Mine starts with this: Justice delayed is justice denied. One promise I made to myself was to work hard to turn things around quickly because among my great frustrations in practice was the time that passed waiting for a court decision. I understand better now why that is: It’s harder than I expected.

The challenge isn’t so much to decide, but rather, then, to express myself in a way that tells the litigants how I got to that result and tells a reviewing district judge or appellate panel what my thought process was. I see that, in many cases, particularly with good lawyers on both sides, there are lots of nuances to the issues that I’ve just got to wrestle with.


JUDGE POLSTER: What I learned when I took this job is that delay generally benefits one side or the other, so that—as time passes and I haven’t made a decision—I may be creating an unfairness or injustice. I never would say that a bad decision is better than no decision, but I probably would say that a mediocre decision is better than no decision, because if I really make a serious mistake, the court of appeals will reverse it.

With most interim decisions, the case will go forward, and it probably won’t change the outcome. So I agree—it is important for a trial judge to try to make decisions expeditiously.


SJM: Within that context, both of you believe that settlement is an appropriate topic for the judge to press aggressively, right from the start of a case, both with the lawyers and directly with the parties. Why?


JUDGE POLSTER: It’s a complex subject. One reason decision-making is difficult is that it often hinges on the facts. Because we all see things from our own perspective, each side is always confident of those facts. We remember what we think we’ve seen, and we selectively remember what we said and what people said to us.

It doesn’t take long in this job to recognize that judges typically face two widely divergent views and recollections of what exactly happened.

Of course, that’s what a jury does; it sorts out the facts. But a jury trial is a crude instrument. Generally, all a jury can do is decide who is going to get some money, split it up, or move it from one side to the other.

Most disputes require something more sophisticated or nuanced than that to resolve. Most federal court cases arise out of an existing relationship—an employment relationship or perhaps a business relationship—in which something has gone wrong. What the parties need is either a business resolution or a business divorce; to reframe their relationship so it will work again or to terminate their relationship in a fair way.

A jury can’t do that. A jury can’t reconfigure a relationship, nor can it structure a separation. Only the parties themselves can do it.

Most of the people in the disputes that we get are here because they actually want their problem resolved. They may say, “I want to win this fight,” but when it comes right down to it, they don’t want to be in a fight that goes on for years and years. They’ve got a problem; it needs a resolution.

Fortunately, we’ve evolved as a society so we don’t go out and strap on our six-shooters, take 10 paces and fire away. We’ve got a way, according to rules and precedents, to resolve disputes.

I get my greatest satisfaction when I help people get out of court quickly and go back to their lives. I’ve never met a client who said, “I want to be written up in F.3d or the Supreme Court Reporter.” The lawyers may want that, but the clients certainly don’t. The clients want to get out of here.

I know that people have radically different views about this. My view is not the only view, and it’s certainly not the view of all judges. I respect judges who say it just isn’t our role, but this works for me, and I think it’s a good role for me to play.


JUDGE McCARTHY: I agree with Dan that the court and the parties’ counsel should be working toward settling every case, if it’s at all possible to do so, even though there are some that just aren’t going to settle.

We have to be sensitive to the different dynamics of each case and that each case has its own optimal time for settlement. In some cases, we need to wait for the initial emotions to shake out and for people to get a taste not only of the time commitment, but also of the financial commitment that’s involved in litigation.

In my experience, both in practice and now on the bench, I see parties who are adamant at the outset, see it as a matter of justice and principle, and say they’ll never bend. Then, six months or a year later, they have a completely different viewpoint, and they’re looking for a way to bring the process to resolution.

So if we push too hard at the wrong time, it’s simply not going to work, and we just have to be sensitive to what that time is. But I do agree that, as judges, we ought to be trying to steer counsel and parties in the direction of settlement from the get-go.

Also, in settlement discussions, there’s flexibility in terms of a remedy that simply doesn’t exist if the case goes to trial, where the jury essentially is deciding about money. We can do some different things in fashioning a remedy in settlement.

Another thing: In mediation, we don’t have to bite everything off at once. We can, when we need to, take just one step at a time.

So I try to keep an open mind that mediation is not just about reaching the once-and-for-all settlement and instead might, for example, be about crafting a methodology for settlement. I had a case that was assigned to a district judge and that was sent to me for a settlement conference. It involved interpretation of the language in an insurance policy, with both sides saying it’s unambiguous in their favor, which they often do.

I saw that they weren’t going to agree on a dollar figure to resolve it and came up with this instead: They could use me for kind of a mini-trial, with a hidden high-low agreement between them that I wouldn’t know about, that would hinge on my decision.

If I ruled in favor of the plaintiff, then, subject to their high-low, it would get not everything it was looking for in the lawsuit, but instead an amount they had negotiated and agreed upon, which was unknown to me. If, on the other hand, I ruled in favor of the defendant, the figure would be at the other end of their range.

That would give them both some real protection, because they would know in advance that it wasn’t going to stray outside their negotiated ranges. On the other hand, it would still leave something up in the air for me to decide.

As it turns out, they ended up settling the case on their own, but defining a settlement methodology is something I continue to look at in settlement mediations.


JUDGE POLSTER: Jerry said a couple of profound things: First, the timing is critical. You can’t do it too early. In fact, you can’t do it too early or too late. And each case is unique. We’ve got to get involved and understand the rhythm and the dynamics of that case to figure out when to schedule the mediation. That’s one huge advantage of the trial judge doing it, because we’ve got the case and can stay in touch with the case and time it right.

Second, there are some cases that take a long time to settle. I had one that took six or eight months. I didn’t work on it every day, but the parties and counsel were in court with me multiple times over that period. There’s only so much you can do in one sitting. Sometimes, the parties have to go out and do some investigating—some fact-finding. Sometimes, I have to try out different things. A problem that was several years in the making may not always be solved in one day.

The trial judge still has the case—the case isn’t going away; it’s still on the court’s docket—so we’ve got to manage it, deal with it, move it forward. The trial judge is in the best position to stay on top of it, and the parties know that the judge isn’t going anywhere.


SJM: So is it your fundamental concept that all cases really ought to settle?


JUDGE McCARTHY: Given the inherent uncertainties of litigation, ideally that’s what should happen. But I don’t mean to suggest that settlement should be forced upon parties who really don’t want to settle. While I think they should be encouraged to settle, there are some cases that have to go the distance and they should. We as judges have to be sensitive to that fact.

I know, when I was a private practitioner, I looked forward to a judge working to settle a case, but I wanted to be sure that the judge would not hold it against me if the case did not settle. If, in the end, my client or I wanted to take our chances, then we should have the right to do that.

But, as a practical matter, those cases should be the exception rather than the rule.


JUDGE POLSTER: Our system would break down if most cases went to trial. We don’t have the capacity to try most disputes, and everyone knows that. So, you want to get to the point that the cases that can and should be settled are settled as expeditiously as possible, in part because that frees you up to try the cases that need to be tried.

I wouldn’t say that every case should be settled. There are some cases that shouldn’t be settled or can’t be settled. But the only way you can find that out is to make a good-faith effort to do it.

So if you do have a trial, it’s because the parties see the facts in such a diametrically different way, or the case is on the cutting edge of the law, or it’s a matter of real societal importance for the public to have a trial, although those are pretty rare.


SJM: While each of you says that you don’t press counsel and the parties to accept you as the mediator, both of you do press the subjects of settlement and mediation right from the start, don’t you?


JUDGE POLSTER: Yes, I do. Everyone knows that well over 90 percent of the cases are going to settle eventually. That’s just what happens. We all know from experience that some cases, if the parties don’t really work at settlement early, are virtually impossible to settle down the road.

Also, there often are opportunities for settlement—practical opportunities for either reconfiguring a relationship or working out an amicable parting of the ways—that diminish or evaporate with the passage of time.

I learned that the hard way by sometimes missing opportunities that I should have seen. That’s why I raise settlement right from the start.


JUDGE McCARTHY: When I was in private practice, one of my sensitivities about a judge getting actively involved in the settlement process was a concern for whether he or she could put aside what was said in mediation when it came time to decide the case. Now, on the bench, I haven’t forgotten that concern. I think we all try to be sensitive to that concern, which the parties may well have.

In my own mind, I’m confident that I can do that, but that doesn’t mean that I realistically expect everybody to share my confidence in me. It’s critically important that, if the parties do not want the trial judge to handle mediation because that judge is going to be deciding the substantive issues, then the judge should refer it to somebody else.


JUDGE POLSTER: The real genesis of my getting involved in settlements comes from my wife. She’s a very good civil litigator. I could see the staggering number of hours and dollars being spent on commercial litigation. Frequently, she said to me, “If the judge had just spent an hour or two with us, this case would have been resolved.”

So when I was fortunate enough to get this job, I determined to see what I could do. And, lo and behold, I discovered that people listen to us. I know it’s not because we are smarter or know more than the lawyers in the case, but there is something about wearing the robe that creates an aura of credibility.

Once I started doing it, I saw that a judge can have a very positive effect. It’s a profound experience for people, whether they are corporate officers or blue-collar employees, to sit in a room talking with a federal judge one-on-one and to know that the judge is spending all this time just on their case. It’s their day in court, in some ways even better than a formal court proceeding. By contrast, in trial, litigants typically sit next to their lawyers and get to speak only if spoken to.

That’s the way it works. If you happen to be a witness, then your speaking opportunity is from the stand, but you still don’t get to really talk to anyone. Testimony is a stilted Q and A, and you probably feel like you never really got to say what was on your mind.

In a mediation, the party—the client—is the active participant. He gets the opportunity to have a judge really listen to him. People laugh; they cry; they exhibit the full range of human emotions. They can say, “The judge heard me and listened to me.”

For some, that’s really what they wanted. Then, maybe, they can move forward.

So it can be transformative, and I never would have intuited it until I saw it happen in front of me. That’s when I concluded that a judge can be a very, very effective mediator.


SJM: Sounds like a rabbinic model of judging.


JUDGE POLSTER: Very often, I feel like I am acting as a rabbi, a minister, a priest, a therapist, whatever.

And I’ve got to be careful to say, “Look, I’m not giving you legal advice or telling you whether to accept or reject any offer.” I just try to encourage the clients to think about what they’re trying to accomplish, to understand that a knock-down, drag-out federal lawsuit takes a big emotional toll on people.

Litigation is a full-contact sport. The lawyers know how to take a hit, slip a hit, duck, or whatever. The clients don’t; they get nailed. And it’s not like TV where it’s wrapped up in a half-hour or an hour.

The phrase “Don’t make a federal case of it”—you know why? It goes on and on. I think I had only one civil trial my first 10 years that didn’t end up in an appeal, and that’s only because the losing party went into bankruptcy and couldn’t appeal.

In our circuit, you’ve got to figure an appeal adds 12 to 24 months, and if I get reversed, everyone has to do it over.

During all that time, the clients are drawn back to something—the origin of their dispute—that’s extremely unpleasant in their lives. Instead of focusing on the present and the future, they’re yanked backward.

Life is pretty short, so I get people to think about that. No one has to settle. If they say to me, “Judge, we want to play this out,” that’s OK by me—they won’t have to wait long for a trial.


JUDGE McCARTHY: I get requests from attorneys saying they have a difficult client and need some help in getting them to see what’s at stake and what the risks are. One side contacts me for a settlement conference but doesn’t want it to become known that they had requested it. I’m open to that. I’ll set a status conference on my own motion, so to speak, so that nobody appears to be operating out of weakness.

It’s very helpful to remind people that there are limits to what the legal system can offer them. Juries basically can do one thing—award money. And that may go some way toward making the other party whole or feel vindicated, but that’s often not all they’re looking for. So we have to emphasize to them that there’s not going to be a perfect solution even if the case goes the distance, and it’s better to get a certain result now that they can live with.

A perfect settlement is one in which both sides are somewhat unhappy. That means they either haven’t gotten everything they sought or they’ve given more than they wanted to, but that’s what makes settlements. There has to be shared pain, real compromise on both sides.

The appellate process takes a long time. It’s far preferable, I think, to get a result you can take home now.


JUDGE POLSTER: Once, I started to mediate a case, and what evolved was the parties’ agreement that they would submit it to me for a binding, one-day bench trial. No appeal. It didn’t start out that way, and that approach wasn’t even in my mind, but that’s how it developed; and so I said, OK, if that’s what you want and you both agree to it, I’ll do it.


JUDGE McCARTHY: Think of the time you saved.


JUDGE POLSTER: It was the equivalent of binding arbitration with no appeal but done in a federal courtroom.

I’ve had situations where we were scheduled for a bench trial and I told everyone that if they all would consent to the jurisdiction of the magistrate judge if we are unable to settle the case, I’ll dig in and try to help them settle it.

I even settled one very difficult case, where it was going to be a bench trial, and I said at the outset: I will not discuss in any way, shape, or form the merits of this case. There are some preliminary concepts on the table for a business solution, and what I’m going to do is help you talk about that potential solution, talk about a restructuring or reconfiguring of the business deal.

So while the legal issue was whether one or more covenants had been breached, I said that I would not discuss that in any manner, because if there’s a trial, I’m going to have to decide that. You have decided to try to reconfigure the business arrangement, and that’s the only subject we’re going to discuss. Let’s see if we can get it done.


SJM: Your comments suggest that you see parties walk away with a real degree of satisfaction, out of both a process and an outcome that you’ve worked hard to achieve.


JUDGE McCARTHY: Yes, I think “satisfaction” would be the best word—some level of satisfaction. They feel that their concerns were at least recognized by the court; maybe not totally agreed with, but at least recognized. That goes a long way toward creating satisfaction.


JUDGE POLSTER: There’s a portion of the Bible that we read in synagogue—the Hebrew name for it is Shoftim, which means Judges or Magistrates. It starts out, “Justice, justice, shall you pursue.”

Many people have asked, why is the word “justice” said twice? Why doesn’t it just say, “Justice shall you pursue”?

There are a lot of commentaries about it, but when I thought about it, I came up with this interpretation: There are two important aspects of justice. There’s the substantive aspect, and there’s the procedural aspect.

A decision or result needs to be substantively just according to the facts and the law, but it also has to be done in a manner that looks, feels, and appears just, or else it won’t be accepted. So, you need them both. One without the other won’t do it. And a good, effective mediation can achieve both.

We can achieve substantive justice because the parties each obtain a significant measure of what’s really important to them, and we can achieve procedural justice because it can be done in a fair and civil manner, with each party feeling it has been heard.

There is a difference between an interest and a position. A “position” is what the lawyers say in the pleadings. An “interest” is what people really want and need.

If we can find a way where it’s not a zero-sum game and each side is able to get a significant measure of what it really needs, then they both walk out, not happy, but satisfied, and they can move forward. If the mediation is done well, they feel good about the process.


JUDGE McCARTHY: As the judge, I owe it to the parties to have done my homework before we start that session. There’s a lot of work that goes into a successful mediation, not only on the judge’s part but also by the parties and their counsel.


JUDGE POLSTER: You’re right, and a tough mediation is a gut-wrenching experience. Let me touch on a couple more things.

An effective mediator should never try to drive a wedge between the party and its counsel. It’s a prescription for disaster. The client hired that lawyer. That’s the client’s right—the client’s decision. Whether it’s the right lawyer, the wrong lawyer, the best lawyer, is irrelevant. That’s the lawyer the client has.

What I try to do is reinforce what I believe the lawyer is telling the client. What I have found is that clients often don’t listen to their lawyers, particularly business people paying $300–$1,000 an hour.

Why? Because they think they know more about their business than anyone else. So I remind those men and women that while they do know more about their business than anyone else, they’re not in their business today; they’re in the business of litigation, and that’s why they’ve hired their lawyer and should listen to their lawyer.


JUDGE McCARTHY: There are times when I have a strong opinion about how the case is likely to come out, if it goes the distance. Nonetheless, one has to be flexible, take off our judge’s hat, not be judgmental in the process, because people are looking for some type of vindication, and if we can convey to them that we understand their position—maybe we don’t agree with it, but we understand it—and we’re willing to listen to them, then that can go a long way.


JUDGE POLSTER: One tries to do that with empathetic listening, asking some probing questions to help elicit facts and elicit—from the client, the party—what they really want and really need.

I’m always looking for things other than money that are in play or can be put in play, because then I’ve got an opportunity for creative solutions. I try to find something that’s more valuable to Side A than to Side B and vice versa.

The only way to learn these things is by asking a lot of questions, then sitting back and listening. A good mediator creates new options, so I try, in a sense, to broaden the parameters of the dispute, ultimately to try to solve it.

I could count on one hand the cases in which the parties’ bottom lines overlapped coming in. The reason is obvious. If the parties’ bottom lines overlap and they’ve got intelligent lawyers, they would have figured that out, and they wouldn’t need me or Jerry or anyone else.

That’s when the real mediation begins: when both sides get to their bottom line on the zero-sum part of it—which often is money—and they don’t overlap. A good mediator can get both sides into that no-man’s land, where no one is comfortable and they’re both doing things they weren’t prepared to do. That’s when it gets difficult; that’s when it gets interesting.

A good mediator can do that, and it seems to me has to be able to do that, or else you’re not going to settle the tough cases. That’s where I think the judicial officer, if he or she is skilled and sensitive, can be the most effective mediator.

But a judge can’t cross the line. I never want to give anyone the sense that if he or she doesn’t make this move or that move, or in the end doesn’t settle the case, that it’s going to affect the disposition of the proceedings in any way, shape, or form.

If the case settles, fine. If it doesn’t, then at least everyone gave it a good effort. It would be improper to create the impression that rulings on summary judgment, admissibility of evidence, or anything else might be in any way affected by what someone says, or does, or doesn’t do, in a mediation.

If a judge doesn’t think he or she can do that, then the judge absolutely should not mediate his or her own assigned cases.


JUDGE McCARTHY: I agree. You must be certain in your own mind that, in deciding the case, you can put the entire settlement process aside. If you can’t, then just don’t do it. Of course, the parties also have to share that confidence. If they don’t, then it should be somebody else who conducts the mediation.


JUDGE POLSTER: Obviously, you shouldn’t get involved in mediation if you don’t believe you can be fair in the case if mediation isn’t successful and it goes to trial. But, if something should happen in the mediation, or after it, that causes you to conclude that you’re not sure you can be fair, then you just recuse yourself. We always have that ability.

Say something happens in the mediation—somebody has been deceptive or dishonest—and we feel we just can’t put that out of our mind. I believe that happened to me once, where I concluded that if we didn’t settle, it might affect how I dealt with the case. I was prepared to recuse myself if it didn’t settle.


SJM: We trial lawyers have to think about how to counsel our clients differently in preparation for an appearance before a judge who—as you both do—thinks that settlement mediations are part of the judicial job description, from preparing a client to appear before a judge who runs a rocket-docket to trial or before a judge who thinks that the parties own the case and therefore never would presume to intercede.


JUDGE POLSTER: You certainly have to prepare your client so that if the judge asks your client a question, the answer has got to be the same as if it were under oath in the courtroom.


SJM: You don’t hesitate to ask questions of clients directly?


JUDGE POLSTER: Not at all. The clients know the facts. I’m not asking for legal conclusions or strategic arguments. I'm asking them to tell me what happened.


SJM: And what do you do when the lawyer starts to answer, instead?


JUDGE POLSTER: I usually say, “I would like to hear from your client.” And then I do the same thing with the other side. I usually say something like “I assume, sir or ma’am, that you’ll say the same thing under oath, when you’re deposed.” I’ve yet to have someone look me in the eye and say, “No, Judge, I won’t.”

Often, that can cut through six months of discovery very quickly.


SJM: What’s wrong with six months of discovery?


JUDGE POLSTER: Maybe nothing.

The question I ask each side is, “What do you need to know to be in a position to fairly evaluate your case and the other side’s case?” We figure out what it is and a fair time to do it in. Sometimes, it could be 30 days; sometimes, it could be six months.

I’ve had lawyers candidly tell me, “Our client needs to feel some pain. He needs to see some bills.” And these are not lawyers who are just trying to run up the meter.

Also, the clients may need to see, through discovery, that the other side has a plausible, compelling version and an effective, articulate advocate; that both sides are armed with facts and evidence.


SJM: Have you ever regretted that you’ve entered into the world of trying to settle a specific case?


JUDGE POLSTER: Oh, yes. I’ve gotten into things that I wish I hadn’t gotten into, and I couldn’t get out.

Sometimes, I’ve gotten into fee issues between a lawyer and a client. Those were worked through with great difficulty. A few other times, I’ve been in some awkward situations and just had to figure out how to get out of them or deal with them.

But very rarely have I felt it’s been a wasted effort if the case isn’t settled. In fact, I’ve been able to say to both sides, “You put in a lot of time, a lot of effort, and now we all can see that this case needs to be tried.”

We need enough trials to accomplish several objectives. The key one is that the common law advance and not atrophy. If I were getting briefs citing cases that were 50 years old, that would be a problem. That would mean that the law is stuck in the past.

Second, we’ve got to try enough cases so that the trial lawyers and the trial judges know how to do them, so we don’t get stale and rusty. Trial work is an art and a skill, best sustained and honed through practice, and that means through trials.


JUDGE McCARTHY: I like a judge to take an active role in settlement and to give real trial dates. I try to avoid, as a judge, giving somebody the impression that if the case doesn’t settle, I’m going to hold something against them.


JUDGE POLSTER: A judge who wants to be a mediator should set a firm trial date, because otherwise you’re really being unfair to at least one party. If you don’t have a firm trial date, the party that’s going to be hurt by delay feels pressure to settle.

It’s also not effective. It’s the pressure of confronting the crucible of the trial, of having feet held to the fire, of really having to put this case on in front of a jury and facing the consequences, that induces the kind of focused thinking that leads to a settlement.


SJM: This all sounds fine, but you both know from stories and perhaps from personal experiences that there are judicial officers in this country who are not thoughtful and principled about the pressure that they exert, both in fact and in perception, when they push for settlement or insist on personally mediating a case assigned to them to judge and manage.


JUDGE POLSTER: That’s true—I know it from personal experience. I have been in a situation when I thought a judge went over the line in pushing for a resolution. I have also had the experience of trying a case where the judge made it clear to the jury that he or she didn’t think much of my case and I didn’t have a chance in the world of winning that case. So I’ve resolved as a judge not to do that to anyone.

If a judge crosses that line, the least significant thing you have done is destroy the opportunity to settle that case. You also have diminished the rule of law and respect for the court, which is profound. That’s a lot more important than what happens in one case.

I would just say this: What judges do is transparent, at least to the parties. And lawyers talk to each other. If a judge who engages in mediation develops the reputation of being unfair, even in just one case, that probably will be the last time that judge is doing any mediating. You don’t have to agree to a mediation in front of a presiding judge. You just say no.


SJM: That’s true if the judge is kind enough to ask.


JUDGE POLSTER: If the judge orders you to mediate in front of him or her, I think you can very respectfully and forcefully say, “Judge, I’ll happily mediate this case, but I want to do it in another forum.” And you stick with it. The judge may not be happy, but that’s what you can do.


JUDGE McCARTHY: Just as in any situation in which you find yourself with what you perceive to be a difficult judge, maybe having nothing to do with settlement or mediation at all, if you have a perception that the judge isn’t giving you a fair shake, all you can do is respectfully make your record as best you can. That’s why we have appellate courts.


JUDGE POLSTER: I never would say to the judge, “Look, I think you’re unfair or you’re going to take it out on me.” You simply say, “Judge, we’re willing to mediate the case, but we want to do it this way.”


SJM: Your Honors, in major league sports, we want the games decided by the skill and performance of the players, not by the philosophy of the referee. A World Series shouldn’t be determined by any particular home-plate umpire’s definition of the strike zone. Why should major-league litigation be any different? Why should the random assignment of the judge make for such a variation in overall approach? Shouldn’t there be one place in America where, if you’ve got a dispute that hasn’t been resolved despite all the opportunities for it to be resolved, you can get a judge who simply will rule on motions; give reasonable, firm trial dates without pressuring for settlement; will convene a jury to make factual findings; and will objectively apply the law—all subject to an automatic right of appeal?


JUDGE POLSTER: Well, my answer to that, Steve, is that, at the end of the day, all of us who are trial judges or magistrate judges aspire to try a case in such a way that we almost disappear, so that the jury focuses on the attorneys and the witnesses. It’s hard doing that.

That was one of the biggest adjustments for me in going from a prosecutor to being a trial judge. When you’re a litigator, you’re the center; you’re on stage. What I found when I took the bench was that when I looked over at the jury, the jury wasn’t looking at the lawyers or the witnesses; they were looking at me, trying to pick up signals from me as to how I was reacting to the witnesses and the evidence. So I try hard not to reveal what I am thinking, so as not to affect the outcome.

The case isn’t ours; the case belongs to the parties and the lawyers. We are there to ensure there’s a level playing field, to make correct legal rulings and give clear instructions, to make sure that what should be a three-day trial doesn’t take three weeks, and if things get heated up, we can get everyone calmed down and refocused.

But each of us is different. We have our own strengths, our own weaknesses, our own sense of how to do the job.

At the end of the day, if the case doesn’t settle, you’re absolutely right—what people are entitled to is a fair jury trial. Not a trial by a predisposed judge or by a judge-influenced jury. That’s what the Seventh Amendment guarantees.


JUDGE McCARTHY: I recall a particular jury trial, and I suspect every good judge has had this experience. Good lawyers on both sides. As Dan said, I’ve got the exhibit and I’m following along. The one lawyer is questioning one of the witnesses about one of the exhibits, and I’m thinking to myself: Come on, ask him about this; why aren’t you asking him about this? And I had to remind myself this lawyer knows this case a lot better than I do, and there’s probably a darn good reason why he’s not asking that question of the witness, because presumably he knows what the answer is going to be.

And, as I think Dan suggested, while this is a great job and we are blessed, I miss trying cases. I may not have tried all that many of them, but I very much enjoyed trying them when I did.

Now, I have to remember, I’m in a different role. I’m not the star.

As Chief Justice Roberts said during his confirmation hearings, we’re the referees, we call balls and strikes. That’s an ideal to which to aspire; but that is to what we should be aspiring.

One of my all-time favorite movies, especially all-time favorite legal movies, is The Verdict with Paul Newman. There’s a great scene in which the judge, who is played by Milo O’Shea, a fantastic actor, jumps in and questions the doctor, who is Newman’s witness. And he’s doing a good cross-examination.

Newman finally says, “Your honor, if you’re going to try my case for me, at least don’t lose it for me.”

I thought: That’s what we’ve got to be on guard for at all times.


JUDGE POLSTER: In a mediation, the stars are the clients, first, and the lawyers, second. The judge is a facilitator of a discussion, of an exchange, of a give-and-take, maybe asking some questions that hadn’t been asked before or hadn’t been asked in that way, eliciting information that maybe hadn’t been brought out.

I’m a facilitator. If I can facilitate a resolution that both sides are satisfied with, fine; but, at every turn, they’re the stars. It’s not my case. It’s theirs.

Obviously, in that setting, I’m not disappearing. The mediator is very active. But, at the end of the day, I’m not imposing my will or my judgment. It is completely voluntary, and the parties need to understand that from the outset.

And, if they’re able to come to a resolution that both sides feel is fair, they do. If they don’t, they don’t. It’s their case.

So it’s empowering to the parties. That’s one of the reasons I like doing it.


SJM: In the end, has anything ever really shaken your view that part of your job is to dig in and see if you can help the parties find an amicable resolution rather than just give them the opportunity for a trial resolution?


JUDGE McCARTHY: We all like trials, but it’s a real meaningful challenge to get a case settled. I feel a great deal of gratification when it does occur, because I think the parties achieve some real certainty that they otherwise wouldn’t have had, couldn’t have obtained, at least at this stage, in the trial court.

The other advantage, of course, is that at the end of fully litigated cases, there’s going to be a winner and a loser, somebody happy and somebody unhappy. I’ll admit I like to see it when both sides have at least some level of happiness with the outcome, in the mix of all their reactions and feelings.

So I really enjoy doing mediations, think it’s of real value and meaningful service to the parties, and look forward to continuing to do them. It’s as important to me as holding trials.

JUDGE POLSTER: I would have to say, fundamentally, no. Have there been times when I wish I hadn’t done it in this particular case? Yes. But that’s a different question.

If anything, the longer I have been on the bench, the more convinced I am that it’s the right thing for me to do. I would never say it’s the right thing for all judges to do, because you have to like to do it. You have to want to do it. You have to feel confident and comfortable doing it. It has to fit you and your temperament, and you have to do it in a way that you’re not trying to be anyone else.

So I never would say that a judge should do it or must do it. I just say it’s an option for a judicial officer if he or she wants to do it and wants to get the training and the experience to do it well.

I believe every court should make sure there is a judicial officer, either a judge or a magistrate judge, available for the parties who want and need a judicial officer to mediate their settlement negotiations. I have frequently mediated cases for my colleagues.

It’s all part of my job, as I see it.


Steven J. Miller

The author, an associate editor of Litigation, is with Miller Goler Faeges, Cleveland.