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Tales from the Bench: Insights from the 2023 Annual Judicial Panel

Sam Bock

What’s changed in the last 10 years?

2014 was the first year in which people spent more of their online time on their phones than on their desktops.

The iPhone 6, dubbed the “biggest enhancement in iPhone history,” was unveiled in 2014, featuring the brand-new iCloud drive, a whopping 8-megapixel camera, and a “stunning” 4.7-inch screen.

And, if you can believe it, initial planning for our very first Relativity Fest Judicial Panel kicked off just as sponsored posts were even becoming a thing on Instagram.

That first panel took place in October 2014, featuring U.S. District Judge Nora Barry Fischer (W.D. Pa.); U.S. Magistrate Judge Andrew Peck (S.D.N.Y.); U.S. District Judge Xavier Rodriguez (W.D. Tex.); and U.S. Magistrate Judge David Waxse (D. Kan.), with David Horrigan (then of 451 Research) serving as moderator.

In 2023, we celebrated our tenth annual Judicial Panel at Relativity Fest. This year’s panel included:

  • Toni E. Clarke, president of the National Association of Women Judges (NAWJ), and retired Maryland Circuit Court Judge
  • U.S. District Judge Nora Barry Fischer (W.D. Pa.)
  • U.S. Magistrate Judge William Matthewman (S.D. Fla.)
  • Judge Victoria McCloud, PhD., Master of the Senior Courts, Kings Bench Division (England and Wales, United Kingdom)
  • Retired U.S. Magistrate Judge Andrew Peck (S.D.N.Y.), now senior counsel at DLA Piper
  • U.S. District Judge Xavier Rodriguez (W.D. Tex.).

Of course, David Horrigan, now of Relativity, once again reprised his role as moderator.

For the session’s 10th birthday, David and the judges took a look back at earlier commentary and discussed how things have—or haven’t—changed over the years. Keep reading for some of the insights they shared with Fest attendees.

Advancing Cooperation?

David opened the panel with a word of remembrance for the Honorable David J. Waxse, retired United States Magistrate Judge for the District of Kansas, who died earlier this year and had been a panelist for many years of Fest sessions. Judge Waxse was a strong advocate for cooperation in e-discovery, so it made sense to open this year’s panel on just that topic—with a recording of Judge Waxse’s advice to get the discussion started.

In the recording, Judge Waxse said: “Lawyers tell me they’ve tried to cooperate, and stock answer is ‘I’m willing, but that asshole…’—so I’ve developed a method of increasing it. I tell them to go back and discuss, and to help, I ask them to videotape the conference and send me either the agreement or the video [if no agreement can be reached]. And I’ve yet to watch the videos. As they say, ‘Lawyers are like particles in physics: they change when observed.’”

However, Judge Peck noted with a laugh that he shared that methodology with local colleagues, who encountered much less successful results.

David’s overall question for the group was whether they’d seen any progress made in the last 10 years on the subject of cooperation among lawyers. Their impressions, generally, were that not much has changed.

In another recorded comment from a previous panel, Judge Rodriguez said, “I appreciate the fact that it’s hard to be a lawyer right now. … So I don’t harp on lawyers too much for this, but generally they will learn along the way that it will be to the benefit of their clients to cooperate.”

But, he said on stage in 2023, “I guess 10 years hasn’t been enough time.”

Judge Fischer noted, anecdotally, that lawyers’ demeanors seem to differ in jurisdictions and across different types of cases.

“It’s very striking to me that whenever I have a criminal case, with one exception, both sides get to work, are efficient, expedient, and the like, because of what the stakes are,” she said. “To that end, unfortunately, it’s not always that way on the civil side where money is involved rather than sending somebody to jail or some other penalty restrictive on someone’s freedom.”

Judge Clarke shared a similar sentiment, and advised lawyers in the crowd on what’s at stake if they aren’t on their best behavior: “If lawyers think judges don’t talk about which lawyers are misbehaving and breaking rules, they’re mistaken. I found a lot of lawyers were no longer respecting the process, and that’s one of the things that went into my decision to take senior status. That isn’t about me, but about what lawyers took an oath to do—and they weren’t doing it.”

The topic of discussion then turned toward video conferencing, as David asked whether the lingering post-pandemic option of conducting proceedings via platforms like Zoom has helped or hampered the cause of cooperation.

Judge Matthewman, who was involved in a notorious case Ludwin v. Proman, No. 20-81755 (S.D. Fla. Oct. 13, 2021)—in which a deponent behaved entirely improperly during a video-conference proceeding, had plenty to say on this subject.

“I think video conferencing is good for cooperation. It’s gotten better. Most of my civil hearings, especially in discovery disputes, I set for remote proceedings. If lawyers cooperate, I continue to let them appear that way. But as soon as they don’t, I tell them, ‘That’s it, every hearing from this point forward will be in the courthouse,’” he told Fest attendees, joking about scheduling those hearings on Fridays at 5:00 p.m.

As the Ludwin case has closed since our last Judicial Panel (it was mentioned at our 2022 session, but Judge Matthewman could not comment on it because the case was ongoing at that time), he was able to tell us a bit about the experience of overseeing an example of poor conduct via video conferencing.

“After I saw the motion [citing the deponent’s misbehavior] I thought, ‘this can’t be.’ So I asked for the video, and my law clerk watched it first and said, ‘Judge, you have to watch this.’ And I did, and oh my goodness.”

He advised legal practitioners in the audience to heed the lesson: “If you’re going to do [legal proceedings] remotely, do it professionally, and make sure everyone knows it can be used against them in court.”

Judge Fischer here called out “a relatively new ABA formal opinion on the issue of depositions, particularly remote, and attorney behavior.” Here’s coverage on the opinion, for those interested in reviewing it.

From the perspective of UK’s courtrooms, Judge McCloud explained that their adverse cost rule system—in which losing parties in a proceeding are generally liable to pay the prevailing party’s costs, as well as their own—means that cooperation is largely viewed as non-negotiable.

“There’s a lot of encouragement for cooperation, because someone is going to lose—and this disincentive poor behavior,” she explained.

Evolving Rules and Observations on Conduct and Discovery

Even in the few years since video conferencing became commonplace for many courts, Judge Peck noted that conduct has evolved: “When we first started video taping depositions, it had a salutatory effect. But now that people are more comfortable with video, it’s lost some of its behavior-curing effect.”

Many of our panelists this year, including Judge Clarke’s comment on the context around her decision to take senior status, reiterated a similar sense that there’s a frustrating lack of respect for the process among today’s legal practitioners.

Judge Matthewman has taken a straightforward approach to setting expectations among parties in his courtroom.

“Arrive on time, and look good,” he cited as his most direct advice. He continued: “Some judges are getting fed up. At the early scheduling conference, I go through with lawyers what we expect—no zinger emails, no fly-by conferral that’s actually no conferral at all, no scorched earth, no fighting, bring us legitimate disputes but not silly ones because we will do soft-shifting and sanctions. If judges get in early enough to explain to lawyers what we expect of them, the expectations are met more often than not.”

Of course, these rules are common sense—or at least they should be. But how have recent history’s changes on the official Federal Rules of Civil Procedure, as well as the UK’s Civil Procedure Rules, altered the cases our judges have seen before them?

In the UK, Judge McCloud said, “I think changes have had an effect in our court in terms of Rule 1, which we amended to explain what dealing with a case justly means. It includes abiding by rules and orders of the court, and that also means cooperating, because that’s one of our requirements. We’ve become stricter if we see a lack of cooperation.”

Additionally, she continued, “We also had a rule around planning the amount of money to be spent on a case. There’s a cost-shifting system, and a budgeting system where judges make decisions about upper limits of what a losing party might pay at different stages of a case—so they know what they’re in for. Parties have to discuss budgets before a hearing in which a judge will consider those numbers. I have seen that engaging in alternative dispute resolution over those numbers leads to a lot of material being agreed on.”

Looking more closely at the topic of how accrued legal costs affects justice outcomes, Judge McCloud chimed in to note that, “cost shifting is a controversial topic. My personal opinion: for a majority of cases for serious injury, you can take out insurance to cover adverse costs if you lose. But there are cases that aren’t covered, and we don’t have legal aid anymore, so people caught in that trap at great risk. You can get protective cost orders, but if you can’t recover your legal costs, that may be an access to justice issue.”

From the American perspective, most of the judges think the new rules haven’t had as impactful a change on issues of proportionality and cooperation as they’d hoped.

Judge Rodriguez said: “It doesn’t matter how you show up to court if you’re not prepared. All these amendments required lawyers to be prepared, so when you came to court, you and the judge could have a dialogue about necessity and proportionality and avoiding disputes. That goal of the rules has not been achieved.”

Perhaps, as Judge Peck observed, “Lawyers tend to remember the rules they learned in Civil Procedure 101 in law school, as opposed to the rules there are now.”

Representation in the Bar and on the Bench

Always generous with their thoughts on how to build a more welcoming community in the practice of law, the judges also discussed inclusion and diversity: how it’s improved over time, and the work left to be done.

Judge Rodriguez, in another recording from a previous panel, kicked off this topic by saying: “For Blacks and Hispanics, there’s been a decline in high school graduation rates from when I graduated. So the pipeline has a problem, and when you take that to college and those costs being what they are, you have the further challenge of financially affording a 4-year institution—and then one step further with law school. So the pipeline is not bringing in the numbers we’d like to see. Talking about systemic discrimination in that context, it’s not limited to the legal profession, and we have some serious problems to solve there.”

This year’s panel overwhelmingly agreed that the pipeline remains problematic.

“At the National Association of Women Judges, we want to encourage people of color and women to think seriously about the practice of law, what they should look at in terms of moving through the system, and what to think about if you want to be a judge,” Judge Clarke told the audience. “Every state is different in how judges take the bench—whether it’s by election, appointment by the governor, or even appointment by legislature. We conducted a gender bias report, sending people into courtrooms to observe what was happening—how judges were treated by lawyers, and so forth.”

In the end, she said, “we learned that in particular if the process is to have appointments, these commissions sending names to the governor were not diverse. So you were not getting diverse candidates. So we made a concerted effort to go into courtrooms in our jurisdictions and others, to talk to people creating these commissions and tell them they needed to be diverse—because until they are, you won’t get diverse candidates. Changes were made, happily … but it’s still an issue.”

Judge Clarke said she has also participated in programs that pair up law students, women attorneys, and women judges to talk about the bench, the practice of law, and what to expect on their career trajectory.

Judge Fischer recalled returning to work after six weeks of unpaid leave following the birth of her first child, “to the surprise of my partners. Fast forward to today, and on my bench, 50 percent or more of the attorneys I see are female; unfortunately, it’s been little slower on people of color. It’s taken a long time for a court started in the early 1800s to get that far.”

Cheers to Another 10 Years

All of our esteemed panelists, past and present, have brought a wealth of wisdom to Relativity Fest over the last 10 years. David shared his reflections on this tradition here on The Relativity Blog before this year’s conference. As both an attendee and as a writer who has been privileged to cover most of these panels, I can’t overstate how much I’ve learned and what a joy it’s been to see the judges at ease and ready to help educate the lawyers and other legal professionals in our audience year after year.

If you didn’t get a chance to see this year’s session, a recording is available for on-demand viewing. (Want to go back even further? Coverage from a few of my favorites is available here, here, and here.)

And believe me when I say you won’t want to miss another one, so you might as well start planning to be in Chicago next fall.

Watch the 2023 Judicial Panel On Demand

Sam Bock is a member of the marketing team at Relativity, and serves as editor of The Relativity Blog.