I recently had the opportunity and the honor of having a talk with Hennepin County Chief Judge Peter A. Cahill in his chambers. Judge Cahill is not well known perhaps to the Hennepin County civil bar since he tends to preside over criminal matters. Nevertheless as the court’s chief judge and also an experienced trial lawyer of 23 years before joining the bench, Judge Cahill has valuable insights for Minnesota Litigator readers.
ML: What do you want to say to Minnesota civil litigators?
Chief Judge Cahill: I do not have a civil block. I never had a civil block. I did enough civil litigation in my time in private practice to be dangerous. So mostly what I have to talk about is what I deal with behind the scenes as Chief Judge — administrative management of the court.
We have 18 different civil judges on the Hennepin County bench and you’d get 18 different perspectives, I think, if you asked them if they have anything to say. It’s worth talking to some of them.
My focus has been on e-court transformation. With civil lawyers, I think they are getting used to it. At least in civil, it will be required state-wide probably be next June and so people who have not gotten on board in other counties will have to.
With the state court e-filing system going statewide soon, civil litigators MUST recognize the importance of protecting the confidentiality of private data in all court filings.
The major concern are restricted identifiers: social security numbers, financial information (bank account numbers, credit card statements)…Lawyers must scour through all papers filed with courts to make sure there is not a social security number or something in there. Judges are not imposing sanctions YET but I think it is coming.
ML: Are you aware of the widespread frustration about the lack of easy public access to court filings?
Chief Judge Cahill: Yes, that is something that Jeff Shorba and I heard a great deal about when the Minnesota State Bar Association had its Nine Days in June this year. That was the most common question, which we knew already. We had a few answers. First, “remember the court file is not your file.” When you get a filing from a court, you should download an electronic document and keep it in your own files and filing system. That said, we understand there is a need for access. But we have to go through a lot of quality assurance.
We have 1.8 million cases filed in the state every year.
We need to work things through the e-court policy committee and the rules committee. All of this takes time.
The challenge, I think, is not the technology, it’s the policy.
We realize, though, that there should be remote access to court files, even to confidential filings, if you are a party to a case.
But there are many questions. Do we want to charge for it? Not to make money, maybe, but to discourage the “casual snooper”? Do you want your neighbor looking at your divorce file, all the allegations that are in it, just sitting at home, in their pajamas, for free? That’s a policy decision for the rules committee to decide. With paper files we had “practical obscurity.”
Is there a time-line for remote access to state court filings?
Chief Judge Cahill: We don’t have one in place because we want to see how the rules committee reacts to the e-court principles that say we want to have remote access. I think at least a year. It’s a big project. Committees meet. More drafts. More word-smithing. Then it goes for public comment.
ML: In the mean time, in my opinion, the $10 per copy fee for hard copies of court filings is onerous.
Chief Judge Cahill: I think that’s statutory. In fact, though, I recently spoke with victim advocacy groups who complained about the cost and who said they have taken to photographing the screens of the public computer terminals in the courthouse surreptitiously to avoid having to pay the $10 fee. I actually see no problem with that solution at all. “Don’t be surreptitious,” I told them. Go ahead and do it. You’re not taking my court’s staff time. You’re not using our paper.
But the better answer is to give people remote access. Or maybe people can bring in a thumb-drive and download and we can configure that. But we have to worry about data harvesters or bulk downloaders. We have to come up with a system that works.
ML: I remember vaguely that a while ago now-retired Hennepin County Judge Lloyd Zimmerman expressed serious concern about courthouse safety. I wonder if you have any thoughts about the issue of courtroom safety?
Chief Judge Cahill: We had already commissioned a study from the National Center for State Courts when Judge Zimmerman raised his concerns. They came in and did a security audit. They found some glitches, most of which or all of which I am not going to talk about. But they identified some weaknesses, which we either are addressing or have addressed.
Our focus now is to get all court processes behind weapons screening. Places where you think might not be a problem, often can be. And I want the jury assembly area behind weapons screening if only because it will speed up the process of calling up a jury. As it is now, we have delays as the jury panel is picked and called up and they have to go through screening one-by-one at that point. It takes about 40 minutes.
ML:There was a recent criminal defendant who fled the Hennepin county courthouse. Was that a security breach or a deficiency in court security?
Chief Judge Cahill: No, I don’t think so. I think he just got lucky. There have been other runners. They’ve all been caught. I think there were the appropriate numbers of deputies in the courtroom. But it did teach us one thing. We are going to need to focus and we will focus on communication. We need to have a system in place where situations like this are clearly and quickly communicated throughout the courthouse. As soon as this happened, as you can imagine, there was a lot of confusion. There is a system in place now, through the phone system, but we might address some streamlining or refinement of the system.
And we need to practice for these situations just like schools do.
In a courthouse, unfortunately, it is more likely we will have an active shooter situation than a fire…
ML: Do you have a sense of the minimum amount of a civil claim below which it is impossible to make a claim in Minnesota state court? Let’s make the claim over $10,000 so conciliation court (widely known as “small claims court”) is not an option.
Chief Judge Cahill: I am not sure what that would be because of the new rules about proportionality. If you truly abide by the proportionality rule, anything above $15,000 is fair game. If the judges apply proportionality. I hear that some judges are doing this.
ML: I have an interest in lawyer advertising, I know that you’re not in that business anymore but I wonder if you have any thoughts about it.
Chief Judge Cahill: I think generally in Minnesota, it’s pretty good, even the TV ads. Back in the day, some of the ads in the yellow pages were a little sketchy. If you worked as a law clerk in the City Attorney’s office, it’s a little misleading to say that you are a former prosecutor. I think it is sad that the profession has stretching like that just to get someone in the door.
I did not enjoy advertising. I did some yellow page ads when I was in private practice. It was very expensive. The last one I did was three-eighths of a page, a little color in it, and it was $2,500-a-month.
But, obviously, now with Google there is a different way to find out about lawyers.
ML: Let’s say a civil litigator has a Minnesota district court judge who just doesn’t seem to “get it”? There is really nothing he can do, right?
Chief Judge Cahill: Aside from removal under Minn. R. Civ. P. 63.03, no. And we realize that might be a concern in the civil bar with all of the turn-over on the Hennepin County bench. Out of the 62 judges on the Hennepin, 13 have changed or will change this year. I am #24 in seniority out of the 62. [ed.: Judge Cahill was appointed in the Spring of 2007.]
But, in Hennepin County, we have a bidding process for the civil block. To my knowledge, no one has ever been told, “You must involuntarily take a civil block.” And the vast majority have had a civil background. And, with few exceptions, like recently appointed Judge Tom Fraser, who has a long history in civil litigation, we do not put new judges on the civil block. Fraser was on the bench for only 4-5 months and then got a civil block. Even those without civil experience do good work, work hard, and they’re very well-versed in presiding over trials. After all, the rules of evidence are the rules of evidence.
In other counties, though, judges get the full plateful. There is no specific assignment. Here, I can imagine that this is of greater concern to civil litigators.
But I can understand a little bit of anxiety in Hennepin County with the turn-over and with civil litigators wondering, “Who are these people?”
ML: What is the “bidding process” for a judge serving on the Hennepin County civil block?
Chief Judge Cahill: When a spot opens up, as one has recently with the retirement of Judge Marilyn Rosenbaum, we put the position up for bid. We alternate between the most senior person and the most senior person who has never had a civil block.
Rotations in family and juvenile court are now three years.
Under the Chief Judge statute, 484.69, the decision is entirely up to me as Chief Judge. But we’re working toward more rational business processes and this is why we’re using the bid process. It’s not just who is on the Chief Judge’s “good side.”
We have a good and diverse bench. Twenty-five percent are people of color. If anything, I’d like to see more judges who came from a background of a solo practice. We have a lot of judges who came from public practice. I would like to see more with background of a solo practice. They are used to dealing with not a lot of resources. We at the court do not have a lot of resources. I have one and-a-half staff. So I think that is one thing we’re missing. We’ve had some great ones, like Judge Steven Pihlaja who, sadly, died too young [ed.: at the age of 56 of heart failure when battling bladder cancer in 2008]. A great guy, a great judge, and it was a shame to lose him. Solo and small firms, I am with you!
ML: In my view, oral argument before appellate courts is a formality. It does not change judge’s views which are (and which should be) based on the papers and the court’s own research and analysis. Do you think oral argument does make a difference at the trial court level?
Chief Judge Cahill: I do not see oral argument as a formality. As I heard Minnesota Supreme Court Chief Justice Gildea say recently, “The court wants to get to the right answer and the job of the lawyers in oral argument is to help us get there.” I say directly to a lawyer, “Here is a concern I have with your argument…”
Trial courts are fact-finding machines. I like to ask counsel, “If I find FACT A, do you lose?” and I ask the other side, “What if I find FACT B?” And the lawyers have an opportunity to explain why, if I find FACT A, one side does not necessarily lose. I think oral argument is pretty helpful in a close case. Think of it as a conversation to help me to get to the right answer.
As Chief Judge, I hear motions to recuse for actual bias or prejudice. Those go directly to me on criminal cases but, essentially, it is a “mini-appeal” of a decision of a civil judge who addresses such a motion in the first instance. These are quick turn-around so oral argument is particularly important in that context.
ML: Finally, when you preside over a trial, in your own mind, do you predict who will win?
Chief Cahill: Yes.
ML: So when the decision is to be made by a jury, then, do you find that they generally “get it right,” by which I mean that you and the jury tend to reach the same outcome?
Chief Cahill: Sometimes it’s a toss-up.
But often the first question judges get from juries, after the juries have deliberated and reached a verdict, is “Did we get it right?”
In fact, I cannot think of a case where I was shocked by a jury verdict. They have a lot of sense. When they ask me if I think they got it right, it is a question that I dance around because that is not my role but I tell them, “I am sure you did. Because there are six (or twelve) of you and just one of me.”
And when there’s a jury, I am not focused no the outcome. I am focusing on the evidence – what comes in and what stays out. I am not focused on the verdict.