After college but before law school, Hennepin County Judge Susan M. Robiner ran a ski school near Louisville, Kentucky. She also waited on a lot of tables in her youth. Navigating black diamond ski trails and dealing with impatient and hungry patrons might have been good training for a Hennepin County trial judge.
Then came over a dozen years as a Minneapolis civil litigator and Judge Robiner has now been a Hennepin County Judge for almost ten years. Key points of her interview below:
(1) Civil litigators: get yourselves into court and get experience with the mechanics and logistics of trial – the end-game – and
(2) On the one hand, middle-class (and poorer) Minnesotans and Minnesota small businesses need good civil litigators but have trouble affording them, and Minnesota civil litigators need more trial experience, on the other hand. We should all put our heads together and figure out how to do better in meeting both of these needs.
ML: Let’s start with telling us your background.
SR: Yes. I grew up in South Minneapolis, went to Margaret Fuller, and then Washburn High. I ended up going to college in Northfield: Carleton. I say that I took a year off between college and law school as though somehow I knew I was going to law school, which was not indeed the case. I left Carleton with an English major, and really, as I look back, I’m not sure I gave any thought to what was going to happene next. The year between college and law school was spent giving some thought to what was going to happen next. I then went to law school.
ML: What did you do for the year? You didn’t just sit and think, right?
SR: No. At the commencement, my parents loaded up the car, and I returned to the same bedroom that I was in four years earlier. Needless to say, that didn’t seem like something I wanted to perpetuate. I got a job. I got two jobs. I was a proofreader for Liturgical Publications, and I waited tables, because I always waited tables all through college. Waiting tables was always a second job. Sometimes it was the job. But a lot of times it was the additional job. I had a good friend, who had just graduated from U of M Law School and was in Chicago at the Sonnenschein firm. It was really from talking to him, and bouncing some ideas off of him, that I decided to go to law school.
I also moved to Louisville, Kentucky in the fall after graduating from college.. I had a job running a ski school across the river from Louisville, Kentucky in Sellersburg, Ohio. A teeny weeny ski area that got more rain than snow. It was something I was qualified to do. I got the job. I went to Kentucky because I was following my heart. But spending a winter in Louisville, Kentucky at a ski area that got rain every third day helped me realize that law school was a better use of my time.
ML: Where did you go to law school?
SR: I went to Georgetown.
ML: Then you came back to Minnesota and you went to Leonard Street and Deinard (now known as Stinson Leonard Street)?
SR: That’s right.
ML: Did you start there and just stay there?
SR: Sort of. Back in those days, the large firms did a lot of national recruiting. As a result, I actually had on-campus interviews with Robins, Dorsey, Faegre, Leonard Street, — all of those firms came. My first summer clerkship was with a firm that doesn’t exist anymore — Pepin, Dayton, Herman, Graham & Getz. That’s what it was called then. It changed its name several times. It was a small firm, and I worked there but decided not to return. So as a third year, I went through on-campus interviews again and went to Leonard, Street. And four years after I went to Leonard Street, Pepin Dayton merged into Leonard Street. I was at Leonard Street for 21 years, except for one year that I spent at Sprenger and Lang. From September 2000 to September 2001 I was at Sprenger and Lang.
ML: Was that your interest in just trying out the plaintiffs’ lawyers’ side of life?
SR: That was certainly part of it. I think it was also a little bit of a sorting out time in my career. I had hit a plateau, and was trying to figure out what would be new and energizing. I felt like I hadn’t taken a risk for a really long time. A number of things came together, and so I did that.
ML: Then at what point did you start thinking, “I’d like to be a judge?” Did that happen at a certain point or not?
SR: I don’t know the answer to that. My husband says that it came up when we were dating, which I can’t quite remember, and don’t quite believe, because that would have meant in 1985 or 1986. We didn’t date that long. Kind of skipped over the dating part and went straight to getting married. I think that, always, what was attractive to me about the practice of law was the practice of law. I never was all that concerned about what side of a problem I was on. As you progress in your career and spend more time in the court room, it starts to look like that’s an attractive thing to do.
ML: To judge?
SR: Yes. Also, you get to a point where it starts to make sense to move from practice to service. I felt like I missed that part and was ready to serve.
ML: What is your least favorite part of judging? Or I should say of your job, because not all of your job is judging…
SR: I think that I struggle with the isolation. Part of that means, literally, it’s an isolated job, in the sense that people interact with you differently, and there are, of necessity, there are some walls that go up. The other part of it is that the decision-making process is not as collaborative, the work is not collaborative in the way that I remember teamwork from private practice.
ML: What is your favorite part of your job?
SR: That’s really hard to say. It’s kind of like the, “Which is your favorite child?” kind of question. , I like both ends of the spectrum. I like the knotty complex problems that have really good lawyering, and are meaty, and you really have to go into the weeds, and then step away from the weeds, and then go into the weeds again. When you have good lawyers, you can engage with them. It feels like we’re all working on this together. That’s very fun.
On the other end of the spectrum, I like the mass calendars, where there are lots of people, and you’re on your feet, setting bail, , or taking a plea, or whatever. That appeals to the side of me that liked to wait at tables during the rush hour. Your efficiency gets better when you’re in that mix. I like most aspects of my job.
ML: A decision came down yesterday from the Minnesota Supreme Court about disqualification. This was a case where somebody came before a judge for revocation of probation, and the defense lawyer asked for the judge to disqualify herself. She declined. The person asked, in the alternative, to get a chief judge to weigh in. That was denied. The Minnesota Supreme Court found it error to have not allowed the defendant to seek the chief judge’s say in the disqualification issue, and also found that, procedurally, the lawyer didn’t have to seek a written prohibition from the start, but could do this in the normal course of an appeal.
This got me interested in disqualification, the notion of disqualification. Have anybody ever moved to disqualify you for cause?
SR: Maybe. I sort vaguely recall, perhaps, of one time. The reason it’s vague is because I actually don’t think it was disputed or went very far. I think that’s partially because I err in the direction of recusal. I just don’t understand why you wouldn’t. If people are uncomfortable, or think there’s something about your background that may create a conflict or appearance of a conflict, I don’t want to be in that fight.
ML: Another angle that I was thinking about bringing up, is one of the things that I find interesting about the practice of law, and the way people relate, and the collaborative nature of it, is we relate as if we’re officers of the court, deciding things along the rule of law. We kind of ignore that we’re human beings, in a sense. But fundamentally, of course, all of our decisions are very influenced by our experience, and all of our interactions are influenced by what experience we bring to the bench. Do you agree with that? Does that make sense?
SR: It does make sense. I agree with it to some extent. I can accept the premise.
ML: This is one of the reasons why, for example, we want a diverse bench in every sense we can, because that diversity actually alters the way the system works. Not just the way it appears, but the way it actually works.
SR: I would agree with that. I’d circle back to the example, or the observation you made, about people are influenced by their backgrounds and their experiences. I have two thoughts about that. It’s one of the reasons that we get training, and that there is an increased focus on this concept of implicit bias: that is, that we carry implicit or unconscious biases into our decision-making. That’s really what you’re talking about.
One of the counterpoints that people advance is to be hyperconscious about your decision-making style, your decision-making processes, that sort of thing. If you bring your self-criticism, or self-analysis to a heightened level, you can draw down the risks of improper use of implicit bias.
The other thought I had is that we tell the jurors as part of the spiel, we tell them that we want that. We want them to rely on their good judgment, common sense, and experience.
ML: Do you think that there’s a contradiction there?
SR: I don’t know.
ML: In law school, I read some psychological studies that suggested that jury instructions have no impact on jury decision making. That they took a sample case, and they ran it past mock juries, with and without jury instructions. There were no statistically different change in the outcomes of the cases. They found some variation when they changed the jury instructions to what they called “plain English” jury instructions.
Do you hold the view that jurors really do read the instructions, follow the instructions, and that they would decide it differently if they were not given instructions?
SR: They’re two very different questions. I think that juries read them, listen to them, and take them as seriously as the most serious juror in the jury room. That’s just my sense, my observation. I’m not in the jury room. My strong sense that the juries I work with take their job very seriously, and really roll up their sleeves and do yeoman’s work, including reading the instructions.
Do I think they read every last one of them? No. I think that they probably … My guess is their decision-making begins with a kind of a Kentucky windage, but on the parts where they are struggling, or where there are differences, they will then both dig into the record, or their memory of it, the exhibits, and they’ll look closely at the instructions.
Whether they come out differently with or without the instructions, I can’t say. My issue with jury instructions, is that they are one of the last vestiges of legalese – no offense intended to people who are working to improve them.
ML: For trial lawyers who appear before you, would you be more amenable to crafted instructions? Or would you say, “Let’s just go with the ‘JIGs’” (standard jury instructions), because that’s easier?”
SR: I have yet to see a case where there isn’t room for a well- crafted, customized jury instruction. Case have weird little wrinkles in them. Even the garden-variety ones may have issues that just fall in an area of the law where there is not a good jury instruction. When I see that happening, my reaction is, “Well, let’s write one.” That is not the reaction of a lot of the bar. A lot of the bar feel very uncomfortable when they venture into the realm of customizing, editing, or creating new jury instructions. They feel uncomfortable doing it themselves. They really don’t like it when opposing counsel does it. And they’re a little iffy about the court doing it.
I’m generalizing, but I have found that often in the group, I am the one who’s saying, “Well, we’ve got to tell the jury what the law is. It’s not in the 112 ones that are in that table of contents. I guess we have to write one” Everyone’s nodding their head, “Yeah.” But there’s a discomfort around it in certain areas of the bar.
ML: When you say, “In certain areas of the bar,” do you mean criminal or civil, or what do you mean?
SR: Yes, primarily civil. It doesn’t come up much in criminal. It really doesn’t. I mean in civil.
ML: You said, “In some areas.” Were there particular niches of the civil bar where people were a little bit more amenable to crafting instructions?
SR: Yes. I think you’ll see it probably more, again generalizing, in the more unusual cases that don’t go to trial that often. Where the issues just aren’t that settled. There are still areas like that. There’s also some areas where there used to be bench trials and now it’s a jury trial. That’s an area where you’re going to see more of this.
ML: What advice do you give to young lawyers today, young civil litigators?
SR: You know, I think it’s going to sound familiar. Try to get into the courtroom as much as you can. That does mean, in this day and age, not just taking pro bono cases, they may or may not get you there. Doing some of the programs that the larger firms do, like working with the prosecutor’s office.
It may mean doing some “low bono” work. Maybe making different kinds of intake decisions such as taking a case that you’d be interested in taking to trial, setting aside whether you can get your fee, and setting aside some of the other more conventional intake considerations.
So one piece of advice is to try to get into court. The other is not really limited to advice to young lawyers: Start with the end in mind. I really think that everything about what you do in your practice—pleading, discovery, motions, drafting the jury instructions, everything — has to all circle back to a theme. It has to all fit together. If you don’t know what your theme is, if you can’t describe your theme, if it’s not “singing” in your pleadings, and singing in your motions, and singing in your trial submissions, you’ve lost something. You’ve lost a powerful method of persuasion. I sometimes feel like lawyers don’t know what their case is about, or couldn’t explain what their case is about, which is just incredible.
ML: If you could make a change to any court rules, procedural rules, evidentiary rules, what would it be?
SR: I’m struggling with that, because no rule is jumping out in my head as being a hindrance to the practice of law… Some are antiquated but not outright problematic…
ML: I think some people have suggested the hearsay rule is not a good rule, the exclusion of hearsay evidence. What’s your reaction to that?
SR: I think that, if, for example, you were going to change things, and have a presumption that the judge was going to decide hearsay withoutenumerated exceptions, that probably could work.That being said, there’s a lot of unreliable hearsay. While I occasionally think, “Well, gee, that’s hearsay, but it smells pretty good. It’s got all of the indicia of reliability…” I would have to say, that more often, I struggle to keep my mouth shut, in terms of the other side is not objecting on hearsay grounds, because the evidence has really questionable reliability. And I would sustain an objection if it were made. I have that phenomenon more often than the other way around. Do you know what I mean?
ML: I do. I have often wondered that when I’ve been in that situation in court, wondering when, if ever, the judge will signal, “Aren’t you going to object?” But, obviously, the trial lawyers have to make a choice there on the fly whether or not to object.
I wonder if you could share with the readers whether you think this is a true concern… I would think it is. Trial lawyers think, “If I object too much, the jury will hate me, or the judge will get mad at me. If I let things go, it will be better for my client.” Do you think that is an ill-conceived strategy for a trial lawyer to worry about that?
SR: No, I think that’s a completely legitimate concern. That is part of what a trial lawyer has to wrestle with. You always have to be doing that calculus. “Okay, do I object?” and all the risks that come with objecting? “Do I not object?” and all the risks that come with that?” You have to assess that very quickly. And a parallel track is “How material is the issue?” You’re trying to figure out how material the issue is, and you’re trying to figure out the cumulative effect of objecting or not objecting. Frankly, as hard as it is … it makes the job interesting, and challenging. I think that that sort of quick-thinking is going on all the time.
ML: I’m going to challenge you on this issue of advising young lawyers of the importance of getting into court. Here’s a counter viewpoint and I’m curious of your reaction: As you know, something like 95% of cases settle before trial. Would young civil litigators be better served by focusing on the skills involved in the 95% of cases that settle rather than the 5% that go to trial?
SR: I don’t accept the premise that being prepared to try cases is not itself preparation for settlement, because at least in our system, as it is constructed, it’s an adversarial system, The whole thing is set up so that if we don’t resolve a dispute between ourselves, it’s going to go to litigation. Litigation, and its idiosyncrasies, its uncertainties, its stresses, its demands, what strengths it requires, is always part of the leverage.
ML: A credible threat, if you will.
SR: Yes. It’s got to be a credible threat. I don’t think it’s something you can successfully bluff your way through, because it’s more than just the kind of throw-away, “I’ll see you in court,” or whatever. It really has to do with how you conduct risk assessment in the setting of trying to settle cases. Figuring out, “I’m going to sue. What are the elements going to be? Where are my witnesses?” I’m not talking about, necessarily, whether you’re able to stand up and channel Clarence Darrow. I’m really talking about whether you understand your burden of proof, what the exhibits are, what the witnesses are. What is the standard that I’m going to have to survive when the other sides moves for summary judgment, what have you. I think that there’s still a role for understanding, a powerful role, for understanding what it means to think like a trial lawyer.
I also don’t accept the premise that lawyers who don’t try a case very often are always the ones who are bad lawyers. Au contraire. There are plenty of lawyers who try cases quite a bit, but who for whatever reason, haven’t really honed their craft. I was going to say they’re percentage players, but that’s not kind to percentage players. They have decided that a certain amount of their energy will be there, no more and no less. That’s unfortunate. Yet, you see some people who try a case every five years. And boy, howdy, they are prepared. They know when so-and-so objects, or asks a critical but objectionable question, or challenges the most critical exhibit, they’ve got a little motion in limine right in their head, or a response to such a motion.
You can’t generalize that lawyers who get into court infrequently are not capable, and there’s a lot of really good training too, like NITA or in-house programs.
ML: I recently interviewed with Judge Fraser and one of the things that I found interesting about the interview with him was his great reluctance to sanction lawyers. I get the impression that he feels that life’s hard enough without having to deal with sanctions, and he thinks that they’re counterproductive.
My recollection from looking at your profile online, or something else on-line, was your saying something along the lines of: “I’m not averse to sanctioning,” or something like that, signaling that you consider them more of a useful tool than Judge Fraser. Is that fair to say?
SR: I read Judge Fraser’s interview. I found myself thinking, “Well, that makes sense.” Candidly, in preparation for the interview, I asked myself, “Gee, have I sanctioned anyone?” I’ve been on the bench longer than Judge Fraser. I’ve been on the bench nine years, and I think Judge Fraser’s been on the bench for 2-3 years.
Still, I’ve sanctioned someone only twice. Once in family court, and I believe that that was initiated by opposing counsel; and once in civil court, and that was not initiated by counsel. In both instances, there was a great deal of process, as many lawyers who propose sanctions tend to forget. Any time you propose sanctions, there needs to be a notice period, an opportunity be heard, etc.
There is absolutely no room for sanctions that are just come out of your mouth…spontaneous sanctions.
There’s just no role for that, because it’s not allowed, and second, it’s just a bad idea.
In both instances where I imposed sanctions, itwas completely briefed. In both instances, I did my homework. In the case where I imposed sanctions, I think I did not impose as much as the other side wanted me to.
But Judge Fraser is correct. Life is hard enough for you folks. We also only have a limited view of what’s going on. We don’t understand, necessarily, where the behavior may fit in a larger context. There’s also the fact that people make mistakes. You have to be a chronic…there has to be some chronicity involved for sanctions to even occur to a judge.
The other thought is that there are enormous collateral consequences. You just can’t do that to a person without understanding those risks.
ML: Do you feel comfortable telling the facts of the civil case where you sanctioned someone?
SR: It was very fact specific but it did involve bringing into the lawsuit the process server, suing the process server, for damages for saying in an affidavit that he personally served John Doe, or whomever. When according to the litigant, he didn’t. Well, there were problems with that. A lot of problems. Then the litigant who sued the process server, I believe, voluntarily dismissed the process server, after recognizing that there was “no there, there.”
ML: In closing, do you have any messages for the Minnesota Civil Bar? Anything that you would counsel them.
SR: Seriously? Thank you. Thank you, civil bar.
Actually, I think they’re doing a fine job. But I think it can’t be said often enough. There are a lot of people going without lawyers. They are not going without lawyers for some principled reason. They’re going without lawyers because they can’t afford them. And that’s a real problem. We have a real doughnut hole problem. People not indigent to get assistance but who can’t afford a lawyer.
I don’t know necessarily what the answer is, whether it’s “low bono,” or whether it’s … I was thinking about this, because there is another phenomenon that’s a little troubling: there are some lawyers out there who are really struggling, and who maybe are taking some of those cases… There’s some poor representation going on. I don’t want to generalize too much, but there might be a role for the civil bar to mentor some of these solo practitioners who are struggling and who I think are filling a need. I know they’re filling a need. They’re filling a need for people who can’t afford more established experienced lawyers. So they’re filling the need, but they themselves are struggling. They’re struggling to keep an acceptable level of practice. So maybe there’s an opportunity to do some kind of mentoring there.
I guess, my primary advice is keep thinking about access because it continues to be a problem.[Editor’s note: For earlier Minnesota Litigator posts of judge interviews, see: Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser.]