From the Bench: Reflections on Judicial Regrets

First, I regret how hard I have been on lawyers, and that I wasn’t hard enough on them—perhaps an example of Orwellian “doublethink,” I admit. I graduated from the Drake University Law School in 1975 and started a small Des Moines law firm with my two best friends in the basement of a long since demolished building that housed the local legal aid society. During several years of unimaginable growth, my practice took me all over the country filing and defending civil rights, constitutional, and employment discrimination cases. I routinely faced highly skilled, industrious, well-prepared, and extremely professional lawyers, especially those from Iowa. I felt fortunate and humbled to have such worthy opponents—many of whom became my role models, mentors, and friends.

The practice was more of a profession then. The measure of a lawyer’s success and professional standing was the quality of representation of clients, not the lawyer’s gross billings. Lawyers stood tall by extending a helping hand to new lawyers, especially those (like me) who started their own firm right out of law school. I recall early in my career being overwhelmed by a very significant case. I was in desperate need of a continuance that I didn’t get. My distinguished Des Moines, Iowa, adversary, a renowned trial lawyer and a leader of the Iowa bar, offered to go with me to change the judge’s mind. With his help, I received my much-needed reprieve. My adversary never expected or asked for anything in return. It is hard to imagine a similar scenario today from members of the current “litigation industry.”

In another, even earlier case in my career, I was up against a large Davenport, Iowa, powerhouse law firm and a highly skilled trial lawyer, named partner, and leader of their trial team. The case was a federal class action alleging wide-ranging constitutional claims concerning jailhouse conditions. It was protracted and hard fought. I was a young whippersnapper, but opposing counsel always treated me with the utmost courtesy and professionalism—as if we had been law school classmates and friends. When I was about to do something stupid in the case, he would gently suggest, “Well, Mark, you could do it that way, but have you thought about this alternative approach. . . .” He was my adversary but my mentor too. His suggestions taught me that taking the high road is often a win-win for all counsel and the parties in the case. I regret that adversaries seldom do that today.

When I was elevated to the district court in 1994, I was surprised by the lack of preparation, the poor quality of the advocacy, and the diminishing collegiality of lawyers (especially from out of state). I often wonder whether my expectations and standards are too high. I have always expected a very high level of preparedness for all hearings, motion practice, briefings, trials, and sentencings. I expected very zealous advocacy infused with a high level of professionalism. In light of our legal traditions of professionalism and civility and our roles as officers of the court, the quality of our advocacy should be of supreme importance. This, in my mind, sets the legal profession apart from other professions and from businesses.

I was recently speaking at an out-of-state continuing legal education program on the theme of empowering younger lawyers, when a lawyer close to my vintage extolled the practice of law as nothing but a business. He proudly proclaimed that the sooner the young lawyers in the room recognized this, the faster their incomes would rise! Is he right? If so, how sad. If federal and state trial judges don’t set high standards for our profession, who will? The “litigation industry”?

I wanted to be a lawyer in grade school. I remember wandering into the Ramsey County Courthouse in downtown St. Paul one summer day and watching part of a burglary trial. I was critical of the defense lawyers’ cross-examination of two key witnesses and kept saying to myself, “Why don’t you ask this and ask that?” I guess it’s no wonder that, over 50 years later, I still ask similar questions.

Representing a Client

I have encountered far too many lawyers who lack the passion for the privilege of representing a client—lawyers who fail to internalize the extraordinary effort it takes to advocate to the best of one’s ability. On the criminal side, far too many lawyers are what former Chief Justice Burger called “walking violations of the Sixth Amendment right to effective assistance of counsel.” On two occasions, I actually said that on the record to an attorney in the presence of the client. I have thought it too many times to recount. I regret stating it on the record—even though it was true.

I have often complained on the record about lawyers who fail to raise valid and obvious issues at sentencing. On far too many occasions, this has forced me to have to raise them sua sponte, to ensure defendants do not suffer from sub-constitutional representation and avoid otherwise inevitable post-conviction proceedings. Some lawyers are serial offenders. On reflection, my carping about their inadequacies seldom changes their behavior. I regret my carping, only because it accomplished virtually nothing. But I regret more that lawyers lack the pride in their representation not to have done the very best for every client. Until the day I die, I will never, ever understand this. There are great privileges in life, like raising a child, helping a friend, or being with a loved one at the time of that loved one’s final illness and passing. But next to these, mustering every ounce of effort to fully represent a client is a very high calling. Whether it was a Fortune 500 company, an inmate, or an unemployed individual, I always felt it was a sacred honor to represent each client. I regret that more lawyers see this as a business than a calling.

While it has not done as much good as I had hoped, years ago, I taped a quote to my bench that only I can see: “Be kind. For everyone you meet is fighting a hard battle.”—Plato. I recently had a tearful farewell in chambers with a lawyer who had practiced before me for years. The last few years, he was disorganized, his arguments were often disjointed, and he changed topics in mid-sentence like a Johnny Carson monologue. He missed hearings and was unreliable. As a result, I often gave him a hard time in court. I regret that. He recently told me in chambers, after his last hearing with me, that he was retiring from the practice because he was recently diagnosed by a neuropsychiatrist with a severe cognitive brain impairment. Plato was right—I was wrong.

Discovery Regrets

In civil cases, I remain deeply troubled by the incredibly overbroad discovery requests and obstructionist responses I observe. Plaintiffs’ counsel often ask for so much irrelevant information that they would have no idea what to do with it if they received it. Their requests for production of documents and interrogatories are almost always accompanied by a list of definitions that exceeds the length of the Magna Carta, the Declaration of Independence, the U.S. Constitution, and the Gettysburg Address combined. Their overbroad discovery requests are inevitably met by every equally silly and impermissible boilerplate objection known to humankind. Then the defendants add “without waiving the foregoing objections we . . .” and produce only a dribble of the requested information. Counsel for both sides are guilty of obstructionist conduct in discovery. Such lawyers are almost always members of the “litigation industry.” They are not real trial lawyers. Then there are the depositions and the objections frequently made by Energizer Bunny perpetual objecting machines—“litigators”—masquerading as real trial lawyers.

Of course, all these types of discovery abuses are the mark of “litigators”—water cooler Clarence Darrows, paper-pushing paper tigers who seldom, if ever, try cases. The “litigation industry” has mushroomed, while real trial lawyers are now on the endangered species list. I regret that the quality of trial advocacy has steadily declined and the likelihood that it will ever return diminishes along with vanishing plaintiffs and civil jury trials in federal court.

I regret that we, as judges, have done virtually nothing significant to attempt to reverse these trends—and neither have the various rules committees. Oh, they have nibbled around the edges of true reform, but most rule changes have had the consequences of escalating, rather than decreasing, the costs of litigation. I predict the current proposal for “proportionality,” inserted into Federal Rule of Civil Procedure 26(b)(1), will be the crowning example of the law of unintended consequences. As the costs of massive and mostly unnecessary discovery and motion practice have skyrocketed—including the obligatory Twombly and massive summary judgment motions—we have priced most litigants out of their precious Seventh Amendment federal jury trial right. I wish we would return to a system that is closer to trial by ambush than trial by avalanche—far less discovery and many more trials. This brings to mind an adage: “Litigators are always prepared but never ready for trial. Trial lawyers are never prepared but always ready for trial.”

Despite my reputation for being tough on the bench, especially for ill-prepared lawyers, I am not big on sanctions—having imposed them less than five times in civil cases. I regret too much carping from the bench. But I equally regret not issuing many more orders to show cause and not imposing significantly greater, but dispassionate, sanctions.

Finally, my other most important regret involves sentencing. I have written many opinions criticizing and disagreeing with the U.S. Sentencing Guidelines, castigating Congress and prosecutors, and railing against the unfairness of federal sentencing. Still, I have been a cog in the federal mass-incarceration machine. I have sent more than 4,000 individuals to federal prison—a large percentage for lengthy and irrational mandatory minimum sentences required by Congress. I hope there is an arc to this national tragedy of mass incarceration and that we are perched on a cresting point that will bend the moral arc toward greater fairness and justice in sentencing.