Hon. Milton L. Schwartz (page 7)
Miller: Let's start today. If it's okay with you, Dick, I'll ask the first question. Why don't you tell us how your life changed, your personal, everyday, attitudes and life changed when you became a federal judge, if they did.
Judge: It changed dramatically and drastically. I had not had any judicial experience at all, either the kind, the volunteer kind where you would sit in some of the departments to help them out and that sort of thing, so I didn't have anything that constituted background in judicial work. And I knew that I was almost 60 years old when I was appointed and that I was therefore expected to be an expert. When you're that old, you're older than anyone that ever comes into your courtroom as a lawyer, they assume that you are much better trained and experienced than they are, and they look to you for these things, and most of the things that I was presented with while on the court I had no experience whatsoever with, or even come close to it. And I thought very seriously about packing up and going back to where I came from. It was very difficult. It took a long time.
But there are ridiculous things. I think that at the McDonough firm we were kind of a gregarious practice. We'd rush around and the minute we'd get a new case we'd run into one of the other lawyer's offices and say, "What do you think about this?" And, "It looks like it's going to take a great deal of time. Can you help me with it? I think it should take two people because it's going to be a number of things." None of that happens here. There is nobody to run around and talk to. And I learned that if I needed help, my colleagues were always very pleased to say to come in and what can they do to help you. But when I, if I really needed help, it would tell me at least an hour to explain what the problem was, and no other judge had an extra hour to sit and listen to me explain my problem. And if was something that I could explain in 3 or 4 minutes I didn't need to consult them - I could do it myself. And that was difficult for me. And then, also, it was very lonesome. Nobody calls you on the phone. I saw how the superior court worked and you wander into the judge's office and wait for him and ask if the clerk if he's available, and they'd say "He will be in a few minutes, so why don't you wait and you can talk to him." You can't talk to anybody in federal court. You have to have a conference, and you have to give notice to the other side, and the judge's won't listen to you come in alone, even if it's nothing improper and it has nothing to do with the merits of the case that's before him or her. And so there's nobody to come and visit and you've just got your two law clerks and your secretary and the court reporter and the courtroom clerk. That's all you can have to talk to. And it does get very lonesome. Lonely. And you don't have this great collegiality of being able to trade thoughts and ideas back and forth. We struggle to have one meeting - one meeting a quarter, really, with the whole court. And we don't get very much accomplished because it's at noon, and everybody is in a hurry, and you do the best you can with it. And that's what was tough for me, and I don't think I ever have gotten used to it.
Miller: Did it affect your other - the other parts of your life. The isolation, the new struggle.
Judge: Yeah, it did, because I'm a third generation Sacramentan and I grew up with, for a while, with the lawyers that were here, I mean in practice. And I'd see them in court and we'd sit on committees together, and all of a sudden it had a reverse effect. Your friends did not want to ask normal courtesies or favors from you, even if a stranger lawyer would not even hesitate to come in and say, you know, I simply can't get to court on that third day of trial because I've got something terrible that's happening. Is there any possibility that we could skip that day, or whatever. Your friends would never do that, and they would always assume you would figure they were taking advantage of a personal relationship to get a favor. And that would be kind of sad, because I'd get all these hamburgers that would come in and they'd say, "How about taking a day or two off here, because - ahhhhh," and it worked in reverse. And that bothered me. It also bothered me that when I saw really good lawyering and well done work that I couldn't automatically award the decision to the good lawyer who did a good job and saved me lots of time and effort. The only way you can pay him is have him win his case, and a good part of the time I'd have to rule the other way, but you'd have to dig it all out yourself. And that seemed to be a rotten system. That you rewarded the bad lawyer by doing his work for him, and then almost hearing him rush out and say to the client - "I was able to straighten him out. I mean, he was off the track there, but I got him straightened out so that we're going to get a decision in our favor." That sort of thing. So there were a lot of unpleasant things that were hard for me to handle, but because I was much older than anyone else I know when he went on the court, I was ready to go on the court. A number of my friends and colleagues did not like it and kept thinking I'm giving up a lot of money and a lot of possibilities, and maybe I made a mistake. I never felt I made a mistake, because I was tired by the time I was 60. I was tired of fighting with unpleasant, rude lawyers who would never automatically accord any courtesy at all. Their belief was that if you just say no and are hard- nosed and make them struggle you will get what you want, because they'll fold pretty soon. They won't like this kind of treatment. And so they'll probably settle on my terms, or whatever crazy theory they have. All of which was a terrible mistake because I've never, ever, in all these years found a lawyer that I could intimidate and beat up on. All it does it make him madder at you and then it becomes a personal thing. He's going to vindicate because you have insulted him by insulting his client. And so it never worked, and the few dirty tricks that - I guess the statute of limitations has run on whatever ones there are that I indulged in - I got paid back in spades by my opponent. I was never able to get away with anything that was worthwhile. Quite the opposite. They were able to get even with me, and there came a time when I needed a courtesy from an opposing attorney and, in effect, he or she would say no. And it made the work a lot harder. So, it took me a long, long time to figure out how I was going to survive in this area that was for me, at first, very, very difficult.
Miller: You know you, you've described basically a growing, I guess what we've started referring to in the system as incivility between and among lawyers. In your 22 years on the bench has that stayed the same, has it gotten worse, what do you think about the civility issue?
Miller: Yes. Judge: Well, you automatically think what's happened to the civility that we grew up with. And it's terrible. I think that's an oversimplification. First of all there are lots more lawyers. There were always lawyers that you couldn't get anything out of cooperatively, and you just said "I'm just in for a real nasty battle and it's too bad but that's the way it is." But there were relatively very few. There were 200 lawyers in Sacramento County when I was admitted to practice. Now I think the County Bar Association alone is well over 3,000, and you don't know anybody now really. And in those days you knew everybody. And within a couple of months of being admitted to the Bar I think I knew every single lawyer that was practicing in our courts. I didn't know all of the State lawyers but there weren't all that many around then anyway. And you got to know everybody and you knew the few that you could not trust and were just always a problem. Most would have a secretary when you called, and you said to the Secretary "I just got this complaint, my client is the defendant X, and I can't get a responsive pleading out. Can you give me - I'll need 5 days at least and maybe 10." And the Secretary would almost always say "You've got it. Just write us a note for the protection of both of us and say 'memorializing my telephone conversation with you of such and such a date and you've been kind enough on behalf of your employer to extend my time to file a responsive pleading.'" There were a few that would not do that, but you didn't encounter them all that often and when you did you knew you were going to have that kind of a problem so you prepared for it. But nowadays there are so many lawyers, and they don't even know each other, let alone know me or vice versa. And so there didn't seem to be any of that. And some of the lawyers would still have their staff people automatically extend time, or some of those minor things that turned out to be important courtesies because if the answer was no, then you ran all the way over to the courthouse and waited for a department that would see you and sign this thing, and you'd waste maybe 3 or 4 hours looking for a judge. There's certainly a lot more of that now, and it's more of a practice than it is the reverse. But the circumstances are so much different. And people knew each other. The cases were so much simpler. I once tried to figure out how much, if I was a good mathematician which I am not, to first make an allowance for inflation and equalize, and then say here's the exact same case, virtually identical, and I figure that it would cost me $500 to take this case all the way through to trial court judgment, allowing a few days for trial, and I believed that I've found that exactly the same case, after first allowing for the inflation factor to make it even, would cost me 5 times as much money in dollars as it would when I started practicing law. Because there was no discovery. You filed your lawsuit and the defendant filed an answer, almost never a demurrer, it didn't seem to accomplish anything, and then you each took the deposition of the opposing party. You couldn't just run around taking depositions anyway, like you can now, but you could take the deposition of the opposing party, and we'd each do that, and we usually did it on the same day. And then you put the file away and waited for the case to be set for trial. And there wasn't much to do. It was cloak and dagger stuff all the way. And most of it was the fun part where you had hidden things all over the place that was never, ever smoked out because there was never really any discovery. And it wasn't until the Federal Rules really were adopted and all that sort of thing. And that was quite a it later, as I recall. That was in the late 60's that it started. And it was all just so different that it's hard for me to say that it's less civility. Lawyers don't use, or try to use, obscene, even swear words in the courtroom. You just never even thought of doing that. And then when I first got started it was a big thing to just slide 'em in and see what the Judge would do. And then if' you'd get away with a small one, which was a crazy thing to do, then they'd drop a real bomb on you, because they figured they could, and they'd tested you, and the test was such a small one that it wasn't going to be that big a deal. And the problem was that they would raise them for the first time in closing argument. I don't know why these funny things happen, but you'd get a very respectable argument from a lawyer, and his voice would rise, and he'd be emotional, and all of a sudden he'd get a "damn" or a "hell" out and you know at first even that was shocking to you in the courtroom, particularly a stodgy federal courtroom. And I remember thinking I'm not going to stop him. It's such a minor infraction and everyone uses these words and they're not considered shocking. And to stop him in the middle of a very important closing argument for something like that, and all those thoughts, and so I thought I'll let it go. And the few times I did let it go something awful came out. And I don't know why they did it. And why did they do it, because I can't imagine why it would help them any, and particularly when it's a jury trial because you're going to offend some of the jurors just by using bad language. And I never could understand why they did it. Maybe it was just to show that they could do it and get away with it.
Nichols: Judge, one of the things that has intrigued me is the difference in the conduct of attorneys between themselves as opposed to their conduct in a courtroom before a judge. Where you would have an attorney who you are dealing with on the other side would just do all kinds of horrible things but when he comes into a courtroom he's sweetness and light. Do you see that kind of a dichotomy from the bench? Or is this something that we see but you don't simply because of your situation?
Judge: You certainly know it's coming because they don't hide it that well. I mean you can see things right off the bat darting back and forth. They cover them - I hate it when they do this - they'll say "I would like very much to accommodate my opponent. We have a very good relationship, we're working well together, we're getting a lot of discovery that we would ordinarily have to demand and we're getting it." And they tell you what a wonderful - they volunteer this wonderful relationship which is at least half the time an outright lie. They don't even speak to each other if they can avoid it. But that's part of the schtick they use to show the court that they are working very hard in trying to accommodate each other. And I usually feel I can spot it right while - the first time they're in the courtroom and they're saying these lovely, lovely things to each other and about each other, I'd rather have a kind that are out and out ugly. I mean, you know what to expect and you just say "Stop it, you're not going to do that in my courtroom because it just impacts my time and I get mad, and all that." There are all kinds of things they do. They don't do it any more, I don't think. But it's - it was the treatment of women lawyers whom most men litigators resented. This was invading the man's domain. And sometimes it would just infuriate them. The stories were legion when I started practicing law about, "My God, he's hired a woman. I guess they'll put her in the backroom. They certainly wouldn't let her talk to clients, for God's sake, and the last thing they'd want to do is let her go to court. And so, it seems kind of strange, but maybe she's very good in some areas and has some expertise, but I'll bet they keep her pretty well hidden." And all that kinds of stuff. And as they figured you might rap 'em for dong this, they developed ways that were just beyond belief. One of them would be if you had four lawyers on one side representing different parties and one or two lawyers representing the plaintiffs, and one of the lawyers would get up and say "I think we've worked out something together, and I invite counsel to correct me if they think I'm wrong, but I know I talked to Mr. So and So and he has agreed, and I talked to Mr. So and So and that worked signed, and then just this morning I talked to Mary and she -" Just flagrantly they would address her for no reason by her first name. And, God, I used to - that I had fun with because I could attack them wildly in the presence of the jury. It wasn't one of those things where you had to clear the courtroom and then say "Don't do this again." You could do it right then, and that had a salutary effect. And then I would say, "Until you're told otherwise, you're to think about how the opposing counsel wants to be addressed. And if it's Ms., that's the way you address her until you're told otherwise." In fact that's exactly the way you do it - that's the way you always start out. And if one of them I prefer you call me Miss or Mrs., then you do that. There's no reason to refuse to address somebody by a different denomination than they want. A lot of male lawyers would search to find a way you wanted to be addressed and then purposely address you some other way. But . . .
Miller: You know a new phenomenon that kind of surprises me - I don't go to State court much, I see it more there, but I've actually had it happen to me a couple of times in federal courtrooms, is where the other lawyer disagrees with what I'm saying and instead of respectfully disagrees with what I'm saying, says "She's lying to you, Judge." I mean it just is breathtaking to me. In federal court it's my experience that you know the Judges. You know, you're around enough that you know the Judges, and they correct that immediately. "You're not going to talk that way. She's here all the time. I've not experienced her lying. Do you want to start that again." In State court it can get really unbelievable. I don't know if you've had that experience, but it - you can't stop it so it gets worse every time you open your mouth. "There she goes again, she's lying to you again." Whoa.
Nichols: I have had that experience often enough so that I am not inclined to attribute it to gender. I'm inclined to attribute it to equal opportunity jerkism.
Miller: Oh, I agree. But it's hard to know what to do. You know, I finally did in one case just tell the Judge in a state court proceeding, I am not going to continue to argue on behalf of my client under these circumstances because we're not getting anywhere. It's focusing on me, and that's not where the focus ought to be. I'm leaving. And he finally got a grip and said, "Well, I agree. There's really no need for this kind of personal attack." But, have you had that experience, of that breaking out in your courtroom?
Judge: I think I have - I think the one real plus of my job is that I - if you're older than anyone else in your courtroom you've got an enormous advantage. I couldn't believe the advantage that I had and I've said a lot of times I would be perfectly happy to trade whatever expertise or ability that I have for more seasoning. It's just age. And for some reason or other they somehow know that there is nothing new. There are certain things that I swear to you every lawyer that has been late or missed a court hearing almost has a script that circulates around, I swear, and they all have it and they all think it's brand new and they made it up. And it's exactly the same. It goes something like this: "I accept fully responsibility for this and I apologize. The fact is that my Secretary . . ." and now, of course, it's been upgraded to my law clerk or my calendar clerk - usually they don't have anybody. They have an answering machine that says Mr. So and So is in court, and that may be at midnight. But they always say "And she had a terrible time, but I know that I am responsible. But I want to tell the court that I have never once missed a hearing before in my life, in the 25 years that I have practiced law." Now it doesn't matter if they've only practiced for 2 years or for 50 years, it's always 25. Always 25. And they say the same words. And you know you think, "God, there is nothing new."
Miller: I was going to ask you, and this brings it to my mind, I was going to make a note so I wouldn't forget it. You used to have, as I recall, now this may be apocryphal, but I think I saw it. You used to have a card file that you kept when someone nailed you in your courtroom, and when they came in and said "I've never done anything like this before, I apologize," you could pull that card out and say "How about on September 5, 1987?"
Judge: And that was purely because I would sputter in rage and I would say "You've done this to me a number of times and I'm finished. We're not going to go this route again, and you're going to be sanctioned. That's all there is to it." And they would say, "When did I ever do this before?" And I could never remember. All I knew was they did it. I don't know when and I couldn't give the particulars of what it was that they did. So I started writing down, when I got made, just an alphabetical list of lawyers so that I could pull them out when I had to.
Miller: Well I saw you do it once and it's effective. And I'll tell you, I imagine you don't have to do it anymore. I mean I've told everybody in the world. "Don't screw with him. He writes your name down, Kid. He'll get you next time."
Judge: That is true. And I did that. That wasn't to be cute. That was self defense.
Miller: That's fascinating. I've never seen anyone else do that. Has anyone else done it as far as you know? I think it's wonderful, myself. I mean it protects lawyers who don't do bad things to you.
Miller: It really does. Don't you think, Dick, it serves a number of purposes.
Nichols: And it also creates a wonderful record when you get taken upstairs to the Ninth Circuit and they're looking for any way to be nice and gentle and "the trial judge did not make an appropriate record."
Miller: Oh, yes he did. So that just came up by happenstance, basically. Do you still have that? Your card file?
Judge: I'm sure I do but I never have any reason to use it.
Miller: That's what I figured.
Judge: I don't get that many repeats oddly enough.
Nichols: But the word is out.
Miller: I definitely put it out. Especially with young people. I remember telling one about your concerns with misspellings and bad grammar and I'd read his pleading and he'd misspelled a central word to this thing like 12 times. Every time it was in there it was misspelled. I said, "It's going to upset Judge Schwartz." He said, "Oh, he'll never notice." I said, "It's going to upset Judge Schwartz. I think you need to amend your complaint and fix that." "I don't want to waste my amendment." I said, "Believe me, you won't be wasting it. You're going to upset Judge Schwartz. Fix that." Well, he didn't do it. And I had the great joy of sitting in the courtroom and watching you just dismember the poor kid. But he'll never do that again. He will never, ever do that again. He will never just fluff it off. He'll be more careful. And I think that's important, quite frankly.
Nichols: Well, I do too. And my view is that part of being a Judge is forcing the people who appear in front of you to do it right. And I see, frankly, that's why I like practicing in federal court. Because there are rules, the Judges enforce the rules, and you know where you stand. You go over to State court and you have no idea what's going to happen. And it's extremely frustrating.
Judge: Oh, it is. And certainly if you do follow the rules - The reason I get mad at very sloppy pleadings is that they are indicative of something much worse. And that is you're not reading your own pleadings. You are too busy. A busy, busy lawyer who thinks, "Well, it doesn't matter because the Judge will find these things and correct them for me. That's what he's paid for. But I'm not getting any money, really, out of this case, and I haven't got time to read." And you know I usually will say it's an insult. The reason I get angry is you expect me to listen to every single thing you say where I think there is any credence and be absolutely fair and yet you don't give me the same return courtesy of giving me your best product in your pleading. Because those pleadings help me enormously figure out what your case is. And that's why I get angry. And if you're not going to practice carefully you're going to be in deep trouble the entire time you're here. You might as well get out of my court because it'll be miserable for you.
Miller: Now I seem to remember that it was you who called together for the first time a small group of lawyers for a brown bag lunch to try to reactivate the Federal Bar Association and create some dialogue between the bench and the bar. Do you remember that?
Miller: You don't?
Judge: I remember going to meetings that involved the Federal Bar Association and being invited there, but I don't remember that I was a moving force in anything.
Miller: Well, I remember it because I came to that very first meeting in the Judge's lunchroom at the old Federal Courthouse.
Judge: Oh, my.
Miller: I don't remember if you did, Dick. I remember Norm Hile. I remember it was the first time I ever met Ken Mennemeier who came with him, and there were a couple of other lawyers. And we didn't have a Federal Bar Association at that time. It was all federal agency lawyers, but it wasn't the practicing court bar. And you, even though you don't remember it, were the driving force in transforming it and creating what we now have. And you were also here when we started the Eastern District Meetings. Do you find those things valuable from the bench perspective? These sorts of forced involvements with the Bar.
Judge: Yeah. Except it's always the good lawyers that don't need the prodding and those kinds of things that come and we've had people like [text omitted] who treated the lawyers generically as the ones that he saw who were always messing up in his court and who didn't know how to get to the courthouse and didn't know anything. And he just for some terrible reason assumed that he should gear his comments to those people. Whereas we always got not only the cream of the crop but we got people who did things for the Court. There is a terrible thing about federalism, and that is that you somehow think that lawyers would be delighted to be put on these committees and ask if they would like to draft all kinds of terrible things and expect that -
Miller: That's what we're here for.
Judge: Yep. And those are the ones then that the [text omitted] would chew out when he was speaking in one of these things when lawyers and judges were together, like they were all bad. Like they were nothing but screw- ups that were causing all of these problems and we almost never got those people. They never came to our meetings. And I never could understand why he didn't understand that.
Miller: He didn't like us very much. He was always very nice to you when you weren't in the courtroom, but in the courtroom he didn't like any of us very much. I just thought he was an unhappy judge.
Nichols: It was not just in the courtroom. If you dealt with him at a social level he was very pleasant. But I remember when we would, when we were drafting the local rules, we would meet in one of the Judge's Chambers up here, in an informal session, and you know we were - Ann Schwing and I were at many of those and we were trying to do a service for the Court, and Judge Price had the view that Sacramento was treating Fresno as a step-child and ignoring its concerns. And so he was angry with the Sacramento Judges for that reason and Ann and I were from Sacramento, and so by extension he was angry with us. And he would just excoriate us.
Judge: He was a year behind me in law school. In Bruce Allen's class, and Henry Teichert's class. And we had a big class of lawyers. And he was certainly well liked in those days. And then I didn't have any contact with him until he was appointed about the same time as I was. And we went through our training period back in Washington at the same time. And Barbara, my wife, is much more perceptive and quicker than I am. And I was saying one day "I cannot understand Dean Price because when we are in a social situation and are having dinner and this sort of thing, he is courtly and nice. But when he gets up on the bench he just transforms into somebody else. He's just kind of a wild man. And that's foreign to me because usually you see fierce people who are fierce whether they in court or out of court. They may be nicer generally, but they are the same person, and he isn't." And she said, "You're busy thinking about what male members of the bench do, and that's think about their own problems and what they do, and the wives just kind of sit there and look around and smile and nod, which," she said, "I'm getting sick of. And so," she said, "I have to do something to occupy my mind and I watch relationships. And he is - it comes out in the social relationship the way he treats his wife. He's just -"
Miller: That's true. I remember seeing that.
Judge: "And he really is not thoughtful of anything about her. He may say words that are nice, but they really aren't, and he really doesn't give a hoot about her and she is a slave. And she's willing to be a slave, so why should I worry about it. It takes two to play that game. But," she said, "he's just terrible to her. And he masks it, but I know what he's like, I can tell by just watching him." And I'd never thought of that and then I started watching him, and by God, he does. He gave her short shrift and dismissed anything that he didn't think was worthy of -
Miller: It is interesting, isn't it. And somehow nobody saw this before they put him on the bench. And you wonder how you miss it when you -
Schwartz: Judge Halbert is the first one who called my attention to it. Because he and I, for a long time, were the only two that ate lunch in the old Judge's Room downstairs, and then MacBride joined us for a while, but the thought was if we had a date or someplace to go for lunch with somebody we go, but most of the time we don't, so we just drop down to the lunchroom. And one day I was there with Halbert, most of the time just the two of us, and he said, "I'm just - I am really upset about what I've heard. And do you, have you heard these kinds of things?" And, he said "I was so overjoyed when Dean Price was named to the Court, and I had always thought so highly of him and he did a lot of work in my court, which was the Superior Court down there, down in the Valley," and he said, "I've been hearing things all the time now that are very, very uncomplimentary, and by people that I have reason to believe are thoughtful and sensible and accurate. Have you heard those things?" And I said, "Oh, yes, I sure have." And he said, "Did it surprise you?" And I said, "Enormously. I was running around, my mouth is always too big anyway, but I was running around saying that I believed that Dean Price would be the star of our Eastern District Court. He was bright. He had a good reputation as a lawyer and he's going to be something else. And he said, I felt the same way. I couldn't have been happier. But I've been hearing perfectly terrible things and I don't know what, I can't make head or tails out of it," and so forth. But that's exactly what happened. In fact I got so upset . . .
And I was brand new on the Court, and the lawyer that had been insulted by him just burst into chambers. And people just didn't do that in those days. And he was with the U.S. Attorney's Office, and he was a wonderful lawyer. And he just walked around and around chambers, he was just beside himself. He said, "I've certainly had judges that were unhappy with arguments that I made, that disagree with them. I've done all those kinds of things, but I've never done anything in a courtroom that would call for being personally castigated for my behavior, or anything. He was just terrible, and I don't know what to do." And he was out of control, literally. And so then I went and talked to Karlton, because he was senior to me by a few months. There were only the three of us then, Karlton and I and Wilkins. And so he said, "Of course, I'm afraid that Wilkins will say "You know, you've got a lawyer, you weren't there, and the lawyer is unhappy with the decision he got that he thinks was wrong, and lawyers do that - they get angry and upset.' And he said, "I doubt that Wilkins will even pay any attention to you, but if it's of any help, I've been through one of these things too." Because I thought I was going to get a terrible rebuff from Karlton, but I had to have somebody on my side. And Karlton said, "I've had the same kind of experience where lawyers have just, that I knew were outstanding, just came in and couldn't tolerate anything like this." And so, he said "Let's both go in and see Judge Wilkins together and see if we can talk him into believing this and not just dismissing it out of hand." And we did, and Wilkins said, "Interesting you say that, I've gotten the same reports from a number of - a couple of lawyers whose integrity is beyond anything. I mean you know it's right or they would never be saying things like this." And so, he said, "That's enough. I will call Price in and I will talk to him." And so he did, and he told us afterwards, "I feel very good about this. I'm just telling you this because you probably would want to know. You'd want to know what the Bar thinks about you. But you're your own boss, and I can't tell you what to do or what not to do." And, he said, "Price said ' I want to hear. It's very important to me.' And so," he said, "I told him the remarks that had been repeated by reliable people, and many of them. And," he said, "Price said 'I'm shocked. I really am shocked. And I'm very appreciative for what you've told me and I want to tell you that I'm going to take care of these things and take care of them promptly.'" Never changed a thing. Not one thing was changed after all of this wonderful talk.
Miller: I know he sat in the chamber where I worked as a clerk when he first came on the Court. And, uh, you know Judge Wilkins had told us to give him as much help as we could in understanding what he role was, and he was just wonderful. And then I had cases with him where he would be rude. But I did a settlement with him one time and he blew my settlement. I mean he really - it was horrible. I mean he blew my client - I made the settlement. But he wanted the bottom line, and I said to him, "You know, I'm not real happy to tell you that right at the beginning. Why don't we just start here and move through it." And he said, "Well, I don't have enough time for that. I just need to know after I talk to them whether I'm getting close," and blah, blah, blah. So I said, okay, it's confidential. So I gave him the number. And the other guy comes in, and we're all in the same room, we've only been there 15 minutes. He asks him what his position in. The guys tells him. And he said, "Well, Mrs. Miller's got this much money from the Board and that's all she's going to get. And I think that's a reasonable settlement and I think you ought to take it." So I have to call my Board after the thing starts and I have to tell them that the thing went for top dollar. I mean there's no way to back off of it. And I talked to Judge Wilkins about it, and I said "Man, I don't know what to do about it but that was just horrible." And he said, "You need to just make an appointment with him." And he wouldn't make an appointment with me, so Judge Wilkins made the appointment and he told me to go down there and sit there and talk to him about and I did, and he apologized and said he hadn't realized he'd done it but I heard a couple of three weeks later he did the same thing to someone else, so . . . I mean it's a horrible experience. I lost that client. It was a really important client to me. They were so angry. He was interesting.
There's another difference between Judges and I don't know where you fall on it. And that is some of them are extremely concerned about what will happen to their decisions on appeal. They comment on it. I've not heard you do this, but probably - I don't know if you do this or not. Is there a high concern about reversal?
Judge: I don't know why there is or why there should be, unless you're one of those who feels he has to have virtually a perfect record because he wants to go up higher. But it's hard for me to believe that because you are immune from being immune, and you're not going to have to stand reelection and go through all of those things where - I am concerned because I don't want to try the case over again. Just pure self- preservation. I also don't like some of the Judges, I can't believe they would do this, I don't do it in my written decisions I don't say nasty things about the lawyers, because they don't have any defense. They can't fight back. And unless they did something that was really outrageous and you knew was in bad faith, I would never embarrass them because I don't know that I'm right. I don't have any great feeling that because I make a decision which sometimes I sit on for weeks and change my mind back and forth and back and forth and go crazy, but then I think I don't have this luxury to sit there and say this case is too tough to decide so I'm not going to decide it. It's just too tough. So I have to decide it, and I do the best I can. That doesn't mean that the losing lawyer is wrong. And I try never to say that. First of all, the Court of Appeals may reverse me and I have to eat my words. But secondly, you don't know whose right and whose wrong and you've been through cases where the trial judge has made a decision and thought it was a fairly easy one, the Court of Appeals unanimously reversed him, and the Supreme Court unanimously reversed the Court of Appeals. Took it right back. So it's the last person that hears it. And so you can't say that the lawyer is wrong, because I've been told that I'm wrong. And that's the thing that is so troublesome to me is when they beat up on the trial judge. And the one that is to me the worst offender in the whole world, and I don't care that he happens to be extremely liberal, he's rude and ugly and he's smart as hell but nobody can be that smart. Your head would burst if you were that smart, as smart as he thinks he is. And the worst case I ever had it took me weeks to decide. It was a beautifully done case. And the lawyers on both sides were very, very skillful. But the plaintiff's lawyer set the case up because he knew he could never prove if the other side had any inkling that that's what he was doing. And it was a religious discrimination case and it was awfully tough. And I couldn't decide it. And for me, I felt that it was the best opinion I'd ever written. And it certainly took me longer to write than anything I'd every written. And I knew it was an enormously close call, and I wasn't going to be the least bit unhappy if the Court of Appeals reversed it. But I wanted it - I knew it was going to be published and I knew there was going to be a lot of talk about it and as a matter of pride I wanted - I didn't want the Court of Appeals to say "We read the district court's decision and, frankly, we have no idea what he's talking about. And we can't tell, and we can't get a handle on it." That is a matter of pride. I want the Court of Appeals to say "Yeah, we can see exactly where he's going and how he got there, and it makes sense, but we disagree with the premise, and we think that the better view" - or whatever. That is fine. All I want to know is what I have to do and do it, but I don't want to be insulted in the process. And you can be insulted if you tell the successful lawyer, "I'm a very busy judge, draft a decision for me please." And then they just sign it and think "What do I care. It's not my problem, it's theirs." And so to avoid that kind of thing, I wanted the best decision I could make and, of course -- I think there is a municipal ordinance that requires that every decision I write is going to be assigned to Judge Reinhart for appeal. He gets every one of my cases.
Nichols: That's traditional. Judge Halbert used to have every one of his cases assigned either to Judge Hambley or Judge Ely.
Judge: [Text omitted.]
Nichols: Judge, one of the few remedies for that which you obviously attempted in that case, unsuccessfully, is to publish your own decision so that when, as and if you get reversed, at least the reader can see what you were thinking about. But it is observable to me that this District has a much, much lower publication level than any of the other Districts in California, and I'm wondering is that a conscious decision that the judges as a group have made? Or what is the reason for it?
Judge: I think every judge has a different take on that. I was so ignorant when I came over here that I thought that if I wrote an opinion and it was published in Federal Supp. that that was a determination - first of all I thought everything was published in Federal Supp. and that they sort of emphasized some sort of philosophy over it or whatever, because they're phony too. They phone you - I didn't know any of this stuff - they phoned me and said, "There has been a request made to us to publish this decision." And I said, "I wonder why? It's absolutely fact oriented from the day it was born until the end. There are no precedents that I believe will have any -- that would be helpful to anybody. Do you mind telling me why you think it's worthy of publication?" And he said, "Oh, as a courtesy to the Judge who has authored the opinion, we always call and ask." And I said, "What if I said no, it's a waste of paper and money and everything else because it has no value. What would you do?" And he said, "Well, then that would go to the top Board of Editors, blah, blah, blah." You know, double talk. And I said, "Well, you have the right to publish anything you want to publish and it's there. And even if you don't publish it some other service might pick it up on its own that doesn't even ask the judge for his thoughts. So do what you want to do. But if you'd ask me I can't imagine any value that it would possibly have to anybody. And I forget what - But then I learned kind of how this game is played, and so they - they will tell you that - I forget what words they use because it doesn't really mean anything. It means we would like to publish it because we will sell more books, so we would love to publish it but we're at last consulting you as a courtesy. They don't say, "We won't publish it if you say 'No.'" And I went down and I talked to Larry Karlton then, and I said, "What do you do about publishing?" And he said, "I publish for two reasons only. One if there is no - if there are a number of cases on point and they're all here in the Ninth Circuit and some of them in our court, and they all decide the same way on the same issue, on the same important issues, and I don't agree with that, if I'm going to come up with a different result, I think I owe a duty to my colleagues to let them know that it isn't all in one direction, there's at least one jackass that has published an opinion in this Court that disagrees with that. Because otherwise it's too easy for them to think, "All of the literature I can find is all the same way. And so I think that if you are different from a great majority of decisions, and there's nothing authoritative from the Ninth or from the Supreme Court, I think you owe a duty because we get a lot of help from District Judge's opinions. They're at least trying to be impartial. And you can't read lawyer's briefs to help you analyze their case, and I get a lot of help and I think I owe the bank some money. The other reason I do it is if I feel that there is nothing in the area that is of any value, then I think I owe a duty to contribute to the bank also and let people see what at least one District Judge thought about it and how he got there and then he can make up his own mind. Because otherwise, I'm not that interested in seeing my name in print which I know some judges would like to do and then at the end of the year you get a bound volume of all your own opinions that you published that year."
Miller: Having worked for Judge Wilkins I never saw one of those.
Judge: So I decided I'd try to follow that. And I got my first one, which was an ERISA case, and the early ERISA cases were very tough, and it was hard to understand them, and the whole bit was very, very difficult. And the whole idea was whether those ideas were preempted or not by ERISA, or whether some of those issues could be handled separately, and that sort of thing. And I killed myself, and I ended up by finding that there were three issues that survived, and the others were preempted and ERISA took care of them and that's all you could do. And it was the only thing there on the subject, and I thought, I'm doing my duty. And the case was, of course, appealed, and it settled on appeal, so there was never any Ninth Circuit opinion that dealt with it. But then, not more than three or four months later a twin case came up from another court in the Ninth Circuit. Just - you couldn't distinguish - you couldn't get a magnifying glass powerful enough to distinguish the two cases. And in that one - the Ninth Circuit wrote a lengthy opinion and went the other way and found that all of those were preempted. And so, that was that. But my opinion still sits there in the damn books, with a Ninth Circuit opinion that will pick up and . . .
Nichols: But the way that the law has been evolving on that subject over the last year or two, by the Supreme Court, you may be right and the Ninth Circuit wrong.
Judge: Oh, sure. If I wait long enough. But, years after that, years after, lawyers who had an opposite position would find my decision - and I love the way they do it. They also find the same script. They say, "In a very interesting and, I think, very informative and worthwhile case that was published so and so and so, and I hear the name of this case - my case of course - like I hadn't noticed that it was my opinion. And I would say, "Stop. You and I are the only two people in the United States that believe that this is good law. And, so, it isn't good law any more, although I agree with you that when it was written I thought it was good law, and still do, but it isn't. And there's no point in citing that case to me. I have vanity, but not that much. I am not going to use that case, I'm going to tell you.
Nichols: Do they still do it?
Judge: Not any more. Within the last couple of years they've stopped. They've finally gotten tired and they've no longer been citing my case back to me. I thought why did I put myself in this awful position where I have to be confronted with this case over and over again. But it is silly that it comes out that way and it stays there in the reports. And anyway, lawyers are not - many of them are not - they just read the headnotes anyhow, real fast, and they think "Oh, I've got it," and they cite the case for a very authoritative decision.
Miller: Well, I'd like to ask, I guess, the concluding question. I think we're there? You agree? If you were going to sit down today with a young lawyer, or a middle aged lawyer who was thinking . . .
Judge: They're young, they're all young.
Miller: Who was thinking about going on the bench in the federal court system in the year 2001, and they had an opening, . . . what would you tell them he or she needs to think about before they make that decision?
Judge: Most of the answer has to be, in a sense negative, as those things that I wouldn't recommend, figuring that if I get rid of all those the rest may be fine. But it's hard for me, because most people that do ask are much younger, and mine was an easy decision because I was really tired at age 60 of getting pushed around and getting dumb clucked by rude, unpleasant lawyers and it was the same thing getting worse and worse as we went along and as you get more and more impatient. So I have never regretted, not for one minute, except for those first few days when I was panicked, I've never once thought to myself, "I kind of wish I hadn't done this. I wish I'd waited longer. Or whatever. So I have to try to figure how I would feel if I were in their position, because most of my contemporaries had either retired or had announced that they were going to retire if they, after they hit 60. And for me it was a wonderful thing because it was kind of a rebirth. It was quite a different thing than just moving from one legal job to another. The focus was different, and the great thing about it is that almost all of the time that you spend in this job is what theoretically you were trained to do. And all of the years that I practiced law it seemed to me that I was most of the time doing - worrying about personnel, worrying about money, worrying about what the firm was going to do, and whether we were going to move, and whether we should add people - all things that I didn't even pretend to be trained in. And that was the most wonderful benefit of everything. It was at least, at least, if I was a really astute lawyer, I would be doing everything that I'd been trained to do. And so that part was neat. The other thing was I didn't have to worry about personnel problems, and people not getting along, and what you do about that, and those kinds of things. The big bonuses, too, I think, are that you don't have real deadlines. The luxury is to say "Sorry, folks, but I wasn't able to do that." You don't say that. You say, "My calendar has been so crowded that I could not reach this case at this time, but I'm going to give you another date." And lawyers can't say that. And that's a huge bonus. The other thing that is a great bonus is that the law clerks and your secretary and the courtroom clerk only look to one person, and I can remember the days in law practice when the young lawyer would be struggling, a new associate, and have cases lined out for him or her, and a senior partner would come rushing into the office early one morning, grab the law clerk, and say, "Whatever you're doing, put it aside. I've got a real problem, and we've got to take care of it, and we've got to get it done today." And that's the great bonus for the young lawyer. And when they are law clerks, as you know, if you've got a decent, thoughtful judge who's been around for a long time and has practiced law and knows the vicissitudes of law practice, it's a great bonus if they can come in to your office and say, "You know, I was here until 2:00 this morning, and I'm not really satisfied with what I've been able to accomplish. I'm sure it's out there, and I hate to say this, but can you postpone the hearing?" That's so much fun because it doesn't make any real difference whether you postpone a law and motion hearing, it's still going to get to trial at the same time. It's not very nice if you do it the last day - you postpone it and disrupt the lawyer's calendar. But we always know early on and can tell them cancel your reservation here, or whatever, but we're not going to be able to hear this case. There aren't many young lawyers that have kind of a luxury either. And so those are nice things you can do for other people and still not prejudice the party's case or cases. So all of those kinds of things I am counting my blessings. When we first came on board Judge Karlton said to me, in his very gentle, non-profane language, said "You know, this job, in federal court, with the help that you get - the staff - and with the individual case method where you get it the day it was born and you stay with it forever - this job is as good [text omitted.]"
Oddly enough he was talking seriously, to John Sapunor, and they talked about resigning from the Superior Court together and opening an office to practice together, which was interesting since Sapunor is as conservative politically as Karlton is in the other direction. And Sapunor told me once, because we were very close friends, he said "I'm just stunned, because I thought, oh, my God, we're going to have a wild eyed liberal on here who's going to turn all the criminals loose and, you know, do all these things," and he said, "we never had a disagreement on an issue involving the law because if you really are trying to find what the law is and do the best you can with the result, you should come out the same." And, he said, "Karlton and I agree me more and of all the judges I feel more akin to him and his thinking. And that really surprises me very much." And that is the way it is. If you do your job the best way you can you find there's a pride in finding what you think the law really is. So the short answer, if there is one, to your question is, I think it is a great job and I never once wished that I hadn't taken it. I don't know what I would do if I were 40 years old and I had a theory that every really fine lawyer that I knew that wanted to get on the bench, most of them said, "I'm not ready yet. There are other things that I need to do and that I want to do before someday I sure would like to be on it." And I thought what a shame it was that there were a number of those people who I thought were really outstanding lawyers that passed up their one chance. And I did the same thing, almost, except that I had a smarter, wiser wife, and I remember staying up all night when I had my one other chance to go on the court when I was like 43 or 44 years old. And she said, "I think what you've told me, although we've been here for 7 or 8 hours arguing, what you've told me is that you don't really want the job today, but you're afraid that if you don't take it you may never have another chance. And I wish that I was smart enough to tell you that you will have another chance, someday, and if you don't it may be that you shouldn't be on the court. But I don't think it's a legitimate reason, because you've already ticked off a number of things that you want to do and that feel it's important to do, that you ought to grab this one because it's here." And so that's when I said no to Pat Brown on that one, and I didn't think there was going to be ever another chance. And I certainly at age 60 did not think that I was going to get another opportunity, but it just sort of dropped. So I think, I think it is a mistake to grab it when you don't really - when that wouldn't be your choice right then. Because there were a lot of things I would have missed out doing that I think were very important during those last almost 20 years after that. I wouldn't have been on the City Board of Education, let alone the State Board of Education, which I thought both were enormously worthwhile. There were a lot of cases that I tried and handled that I never would have done. And so my experience - you always have to personalize it, but you can't pick the time that you want to go on the court. People like Gordon Fleury - I'm trying to remember the number of people that I thought made good judges and made good appointments, but they got tired of it and they got frustrated and they wanted to go back to a different kind of life where they didn't have to be as careful about this and about that. I didn't ever have those kinds of things to worry about because I'd really lived almost a full life in the practice, and I think it was probably time for me to make a move. But I still think it's a great job, and the best legal job that I know of, and I would be an enthusiastic supporter for anybody that asks.
There are so many platitudes that have to do with this that bother me. Like, I'm not so sure about Judge So-and-so who's been named as a judge, I don't think he has the temperament --- the judicial temperament. Which translated means nice, deliberative, kind, thoughtful, popular because of the way he behaves. To me most of that means "weak." If you don't generate anything more than that he's a really nice guy and he's honest, and that sort of thing, I think most of that translates out to weakness. And some of the best judges I've known were fierce. Fiercely competitive. And they'd say he doesn't have temperament. He has the temperament for the job he's got now which is to fight. That doesn't mean that if he's appointed to the court, it doesn't mean he's too dumb to focus on what his real job is now as opposed to the one that he's leaving. And there have been some great judges that I would have thought, he doesn't have the temperament. I just think that is such a weak analysis because, as I say, most of the lawyers that fit the category of fine temperament usually mean weakness or kinds of wimps - wimpish. And I think it means that whatever you do if the job that you're doing at that time is a great job, there's no reason to believe that you won't do a great job on the bench, if you did a great job as a lawyer, even though the focus may be quite different.
But Karlton, I think he's a really great judge and he was a wild man in practice. But he knew the difference, real fast.
Miller: So you've enjoyed it.
Judge: I sure have, and I would not have worked this long either and enjoyed it. That's the only real trouble is that nobody's going to come in and say, "Look, we've got to talk. You are losing it. Let's face it. You ought to start thinking about moving out, because it's time. I don't think anybody will ever tell us that, mainly because they think they owe you something because they're junior to you and they owe you something and they're not going to want to hurt your feelings, number one. And number two, maybe they're thinking that they're getting ready to maybe hang 'em out and they don't want to be pushed out, so if they push you out maybe somebody will push them out too.
Miller: Would you want to be told?
Judge: Oh, sure.
Miller: You would?
Judge: Oh. The older you get and all the problems, you know, memory - you can't remember anybody's name and all of those things. You worry, worry, worry all the time. Because that you know that nobody is going to tell you that. And I remember having to tell [text omitted] wife. Because I knew the [text omitted] better than any of the other judges, I got the job of calling her and telling her. And I came home that night after a meeting and Barbara was in bed reading, or something like that, and I said "I'm going to have to call [text omitted] and tell her, you know, that we don't want him to be embarrassed and we don't want you to be embarrassed." And she said, "You mean you've been arguing whether you should or shouldn't tell her." I said, "Yeah." And she said, "Well, that's a wonderful, macho kind of thing to do." She said, "I want everybody in your courthouse to be told that the first time they notice anything different, even if they think it's no worse that what you've always done, anytime they notice anything different they tell me first and give me a shot at finding out. But you can't hide these things, and it's certainly no kindness to save somebody."
Miller: That's so amazing. Maybe it's a male thing. You know, I think women do that kind of thing with a great deal of regularity. I mean take someone aside and say "You need to know." It isn't doing them a favor is it?
Judge: It sure isn't.
Miller: I remember when Judge Wilkins started to lose the ability to hear. You know, I wasn't working for him any more. And finally somebody called me and said, "Would you go tell him?" And I said, "You go tell him. You're right down the hall."
Judge: What - you've got a broken leg?
Miller: "Oh, I don't want to tell him." So, I said, "Jeez." Then I went and talked to Sue and then I sat and talked to him a while and realized he wasn't, it was bad, big time. But it's amazing that someone would leave him in that position. It's almost cruel. Everybody's talking about him and he doesn't know.
Judge: I went in during a recess, lawyers were called in when I was trying a case in front of Peter J. Shields when he was 99. And he was sort of almost transparent. Nice little man. And he said, "I want to ask you something very frankly." He said -- and these are the lawyers fighting like crazy on the case right in front of him at the time -
Miller: So you didn't get it on tape at the finish when the judge asked the lawyers . . .
Judge: Well, we just all at the same instant, absolutely not. We also didn't go on to say we both are being very clever about trying to jockey things around so that when there's a weak witness that we have to call, because we have no choice, we will call that witness in the afternoon because old Peter J, you know, would start to go down. I never could prove it, but he had a clerk who had been with him for years, and you could see the clerk look around all the time to see how he was doing. And then, after a while, Peter J. nodding and [coughing sound] - apparently there was some kind of a shocking thing, or a button, that he used to jar him awake.
Miller: There was a courtroom in Los Angeles that was famous for the clerk reaching back and pounding on the bench, as if the rest of us couldn't hear it.
Judge: Oh, really.
Miller: Yeah, just reaching back and big thumps and thuds to try and get the judge's attention. It was very funny. And we all sat there like nothing was happening. Clearly he was out like a light.
Judge: Golly, that would be awful. When I, I have a bad time at certain hours in the afternoon when it's just deadly.; And I've tried everything; I've tried eating no lunch at all. I've tried eating just juice. I've tried eating a big lunch. Everything. It's the same - you've got a circadian cycle and there are certain times of the day when you are going to be sleepy. And when I was at the law firm, they used to schedule all of my appointments with clients for the afternoon because I wouldn't fall asleep in the afternoon while interchanging. And then anything that had to do with reading, or reading briefs or anything, that was in the morning because, boy, in the afternoon you're gone. And here what I do, particularly if it's putting in tedious exhibits, long descriptions of them and then just all this stuff, particularly in long criminal cases where they have to put in all these things. And I would go through these things as if I were having low back trouble, and I would get up and stand behind the chair as if to rest my back, which translated meant the judge is falling asleep.
Nichols: Judge, let me go back on something that I did miss asking. You mentioned several times during these interviews about the assistance that you get from good briefing and good lawyering.
Judge: Oh, boy.
Nichols: And yet there is abroad generally a greater and greater movement for page limits and cutting down on briefing. Those two concepts seem countervailing to me and I'd like you to comment on that generally, and on your views specifically.
Judge: Well, first of all I'm the only one that I'm aware of that has page limits. And I did it once in a fit of pique. I had my law and motion on Friday, and the reason I did that was I figured that I could stay up all night Thursday, if I had to, to get prepared for law and motion if I'm in trial and otherwise occupied. And one day I had my law and motion calendar and I counted the pages of briefs for that day and it was 600, and I thought I'm one of the slowest readers and how could I ever get through 600 pages of briefs covering 4 or 5 cases. And so I put in my page limits. Which was 20, 20, 10. And then the only exception was if you were going to exceed that you have to get permission from my senior law clerk, because I don't want another 50 page brief telling me why you want to file a longer brief. And you do it by phone and you call the senior law clerk and she or he will tell you , "Yes, but no more than X." That was also one of the worst decisions I ever made. I've got to this day a lot of briefs that could have been very well and completely done in 5 pages. There isn't any more than that they can justify. Strange that the opening brief is always exactly 20 pages long. It's never 19 - it's always 20. And the answer is that the lawyer feels that if he [the judge] picks a 20 page limit that means that there's probably 20 pages that he thinks is worthwhile material. And so they just make it 20. The responding lawyer looks at the 20 page brief and says if I get anything less than this the judge will think that it is not a serious, worthwhile, opposition. So his or her brief is exactly 20 pages long. I do spot that some of them have smaller fonts to get more on the page. But they always do exactly 20 pages, and dang, if you could stop ready when you can say "well, they've covered this, now he's starting over again, so phooey," and you throw it away. But you can't do that. You've got to read the whole damn thing because they spread it out over the 20 pages and I think I've been dumb clucked far more times by briefs that could have been much shorter except for the fact that I'm the one that put 20 pages on it. And, I don't know whqat they do exactly, or how they do it, but I do know that they worry a lot about the pages. Because they don't know exactly what is important to the judge, or it might not look like it is significant, and all that. I just think it's a waste of effort with a good idea in mind that may have backfired. I haven't stopped it yet, because I'm sure as soon as I stop it I'll get one that is 200 pages long immediately. They'll just write and write and write and write and write. But, it is . . .
Nichols: Well, there is an intimidation factor at work. I know that I personally, on one appeal to the Ninth Circuit, just totally left out what I thought was a legitimate appealable issue because I couldn't cover the other issues to my satisfaction in the page limit that was available to me. And my view is that that's not a service to anybody.
Judge: You're right. My hope was and probably still is that if you feel that your brief is - there are so many issues and there is so much that needs to be covered that you really need more space, phone. My senior -
Nichols: But that's very hard to do. There is a real strong sense that when a Judge or a Court has a page limit, they mean it, and they're going to be really annoyed if you want to go past it. I mean even to the point of some of the Ninth Circuit Rules that govern fonts and require a word count. And, you know, that's a very strong statement of view that I think most attorneys would be a little hesitant to challenge.
Judge: Yeah, and I think that, I think you're right, and I think that my efforts are not really very good. I mean I think they've missed the mark. It's - if a law clerk profits at all, even if she's got a lousy judge, just learning what's going on in the back office, and how much time they can save if they figure that you can count on the judge to this or that and these are important things. You don't know, and God knows I didn't know, what they wanted and what was the more impressive. It's very hard. And so I think I'm going to be stopping this.
Miller: Well, before you do that, I'll disagree with Dick to a certain degree. How unusual. I've often apologized in a brief for it's length and said if I'd had more time I would have written shorter. Because I think it's harder to write a short brief.
Judge: And I usually say that. I usually say that it's been my experience that short brief is harder - a good short brief is harder to write than a good long brief.
Miller: Yeah. It's very difficult. I just redid a brief with a guy that I work with that was maybe 17 or 18 pages for a State court law and motion and I said, "My God, this guy is not going to read this." So, you know, developed a device of giving him a time line and then referring back to the time line and got it done in 8 pages instead of trying to incorporate it into prose. And so I sort of disagree. I think page limits are not a bad - we shouldn't have to do it because there are things than run longer. But I wouldn't hesitate to call. So, I think that as a lawyer it's a horrifying thing to get a brief from someone that is 50 or 60 pages long and it's indecipherable because it's just filled with wrongs. I mean if you don't have to go back and look at it for page limits, if nothing else, you tend to produce garbage. I can't even read it, and I'm just a lowly lawyer on the other side. I don't even know what they're talking about half the time. And so I, I disagree.
Nichols: Well, there are some judges that are so wedded to their time - to their page limits, that they wouldn't give you relief from their page limits in the Microsoft case.
Judge: Huh, yeah.
Miller: Well, look at the Supreme Court limits, though. Although I will agree with you that at that point you have sufficiently limited issues that you ought to be able to do it more quickly. You know, Judge Wilkins used to pick up your bench brief and he'd just heft it. And if it was more than the normal three pages, he'd say "This feels like it was written by a lawyer who didn't understand the case."
Miller: Do you want to take a break?
Judge: Yeah. Where are you going . . .
Miller: Should we end. We can end. I think we've done plenty. Let us thank you then, firmly, for the privilege of doing this with you. It's been a really marvelous experience.
Judge: Well, how nice of you.
Miller: I'm very glad I got to do it. And I thank you.
Nichols: I have enjoyed, particularly, the fact that I came in to this process expecting to rehear all our lunch stories.
Judge: War stories.
Nichols: And, you know, out of how many times we've met, maybe 15 minutes of
them were things that I heard before.
© 2002 United States District Court for the Eastern District of California Historical Society.