Recently I went into the Eighth Circuit on an appeal of a case involving probably $50,000,000 in damages that should be payable to the United States. It was an interesting case, with many highly technical aspects that neither district courts nor courts of appeal see very often. And yet, in spite of this, this was the very first time I had been in front of a judge in this four year old case.

Supreme Court law (Matthews v. Eldridge if you care to look it up) holds that due process consists of two elements: notice and the right to be heard. Under current federal law, it really consists of only one right: the right to notice. Because in federal courts, you do not have a right to be heard any longer.

Walk into any state district or circuit court and you’ll find lawyers and judges working together to resolve cases. Lawyers and judges have case management conferences, and they often have informal conferences where the judge may urge parties to work together to settle a case. Judges in state court do not earn any more money by virtue of trying cases, but they know they only have so much time. So the limit their workload by working aggressively with lawyers to move cases. There is often no civil servant that works as hard as circuit court or trial judge.

Yet, these judges, in moving these cases, always give the parties a chance to argue the matter before they decide. On a motion to dismiss or a motion for summary judgment, the parties will usually have ample opportunity to present their views of the case to the judge and to advocate for their clients. The judge may well decide against them (judges do that half the time). But at least they had their case and their arguments heard.

It used to be that way in the federal court before e-filing and before the dawn of increasingly more complex litigation. Instead of working to simplify cases, lawyers in federal court now work to complicate them because they know that a confused mind “always says no.” In a case involving $6,000,000 stolen from the government several years ago, the plaintiff survived numerous motions to dismiss and a motion for summary judgment, only to lose on the even of trial to an untimely motion to dismiss. And during that time there had been zero hearings in front of the trial judge. Judges simply do not set them, or grant them when requested.

Maybe it’s easier to decide cases when you don’t have advocates trying to change your mind. Maybe it’s a function of an increased federal workload. And maybe, just maybe, it’s judicial laziness. Maybe it’s judges just tossing out cases right and left and leaving early for the day. And in federal court, each trial judge has two “clerks” – lawyers in their own right whose job it is to research and help write opinions. These clerks often do the bulk of the deciding that is done, and the judge signs the opinions. No wonder judges may not want to grant motions for hearings: imagine if it became clear that your clerk had done all the work and you knew next to nothing about the case.

Now, that’s not to say the all federal judges are this way. I ran into a federal judge this week who was studious, careful, and who really wanted the parties input into a complex procedural matter. He considered it carefully, and he asked good questions.

Several years ago I had a much smaller case that dealt with federal court jurisdiction. The opposing lawyer was a gentleman, a really good fellow who was representing a client and who did an excellent job briefing. I had done the same excellent job, and one of us had to win, while the other had to lose. When it came time for oral argument the female federal judge called us and held the hearing over the telephone. Now, if there was ever a case that could have been decided on the briefing, this was that case. But oral argument was useful to the judge, and she said so. It left me feeling that my argument had been heard. I lost that argument, but in the end the case settled because she had heard the motion and ruled it.   But these judges who hold hearings have become the Sasquatches of the federal courts, because most judges now simply do not allow the parties to come into court and argue, and refuse to hold telephone hearings.

Sooner or later this will change. It will change either when someone blows the whistle on the judges that don’t do their jobs, or it will change when the Supreme Court realizes that the errors it is correcting could have been caught at the district court level if someone had simply been interested enough to look at the record.

To clients it is impossible to explain that a man or woman they have never heard, never seen, and who hasn’t even had the courage to look them in their eyes, has just dismissed their case. Don’t get me wrong: the judge may be absolutely correct to take the action he is taking in dismissing the case. Not all cases are meritorious. But for some faceless, nameless disembodied decider to somehow be the final arbiter in a dispute seems foreign – and somehow anti-American – to most clients.

I look forward to the day when federal court judges are held to the same standards that state court trial judges are held. I look forward to having a rule that says that every summary judgment motion and every motion to dismiss will only be decided after oral argument on the motions.

But that day is not today.

Today, Lady Justice is not only blind. She’s deaf as well.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s