Minnesota Litigator was recently honored with the privilege of an interview with former Hennepin County Chief Judge Kevin Burke.
The executive summary: Judge Burke’s passion, humility, and thoughtfulness are inspiring. Minnesota’s judicial system owes him quite a lot.
ML: What are you up to these days?
JB: In May of 2014 I spoke at Monash University. Monash is a Judicial Institute and they had a conference on court timeliness. I also spoke at their law school on the issue of procedural fairness. This fall, I am going to go to speak in Sydney to the Law Asia Conference and then I am going to speak to the Australian equivalent of our judicial college, in Melbourne, as well as to Monash University Law School.
ML: Timeliness has been a particular focus of yours, correct?
JB: When I was Chief Judge, our bench worked very diligently on timeliness. I went on the bench in 1984. At that time, the average time to disposition of a civil case in Hennepin County was three years after the filing of the “note of issue.” The “note of issue” was when the lawyers said they were ready for trial. Disposition of a civil case was three years from then.
Today, well over 90% of the civil litigation in Hennepin is done within a year.
I think that timeliness is an important issue for the legal profession. I think that is partially why we (the courts) have a bad reputation with some of the business community. Many believe that the civil justice system takes too long and that it is too expensive.
Timeliness, I am interested in fairness. I co-authored a paper with Judge Steve Leben who is on the Kansas Court of Appeals in 2007 on procedural fairness in courts. We wrote a sequel in 2012. I speak to many judicial audiences on procedural fairness and judicial decision making.
ML: You made great progress as Chief Judge. Is that progress monitored on an on-going basis? Is the court system continuing with that progress?
JB: On timeliness or fairness?
ML: Either one.
I think that the courts are reasonably quick, but there are new pressures on the bench. For example, the public defender system is underfunded, and as a result public defenders have unacceptably high caseloads. We have a large number of new judges on the Hennepin bench. The skill of going from being an effective advocate and then being an effective judge and settling cases takes some time. It takes some experience. Even with great new appointees, when you have a large number of newly appointed relatively new judges, there are challenges to being timely. Based upon underfunding of the public defender and a large number of relatively new judges, you’d expect some delay.
There are other issues for the system. For example, relative inexperience in the prosecutor’s office can lead to declination policies that are different. If you want to become a macho prosecutor, you don’t get there by telling the police, “You really have a thin case. Go back and do more investigation.”
Having said that, we compare quite favorably on the issue of timeliness to other major urban courts.
ML: So has the Hennepin County court system slipped a bit since you were Chief Judge?
JB: A little bit but it is not serious. We have declining filings. If you have declining filings in certain case types, you would expect the system to go faster. I don’t think we’re going noticeably faster. But, again, on the issue of timeliness, Hennepin is in pretty decent shape.
Court timeliness is a little bit like gardening. You have to take the weeds out all of the time. With a new judge, the attorneys will come and say, “We have decided we need a continuance of this case…” If you’ve been around for a while you might say, “No, WE did not decide that. You two did. And I am not necessarily going to buy in….”
If you are new on the bench, that is sometimes very hard to do.
I remember there was a very prominent medical malpractice defense lawyer when I first went on the bench. He was not going to go to trial except on his terms. And he wasn’t going to give the plaintiff any money either…[chuckling] I remember getting in a horrible fight with him…”Look, we have to get this case over…” His response,”Well, my schedule does not permit that,” did not go over well with me.
You don’t want to be completely hard-headed with lawyers but there is a responsibility to the system as a whole for a judge to say, “We have to get this case worked out, one way or the other…”
ML: So what happened in the case of the notorious medical malpractice defense lawyer who did not want to go to trial and did not want to pay money to settle the case? Did you push him into trial?
JB: We eventually got the case resolved. My recollection is that once it was clear, “This is it, you’re going to trial,” and I issued an order — which I don’t know if I would do if I had it to do over again — saying, “This is the trial date. You are in a prestigious firm. If the lead lawyer is not available, make sure there is someone else who is going to be there because we are starting the trial on that day,” sure enough, the case settled.
ML: I have talked with judges about the infrequency of opportunity for trial judges to get trial experience. Do you think that’s a problem? [Editor’s note: I misspoke. I meant to say “about the infrequency of opportunity for trial lawyers to get trial experience.” (I have not spoken with with judges about the infrequency of opportunity for trial judges to get trial experience.)]
JB: No, actually I don’t. I think you can get more experience doing trials as a judge than you can as a civil litigator, for sure. Having said that, the declining jury trial is a national phenomenon. It is a big issue for the legal profession. We have lots of lawyers who rarely if ever actually have a jury trial. They take a lot of depositions but putting the whole thing together in a trial does not happen very much.
Minnesota is quite similar to other places where there is a pretty dramatic decline in jury trials.
Although I think the decline of jury trials for lawyers is something to worry about, I don’t think there is a reason to say, “Oh, I don’t get to be in trial that much…”
ML: Have you heard judges complain about that?
JB: What you tend to hear early on in a judge’s career, mine included, is excitement about being in trial. I have my first jury trial, my first murder trial, my first medical malpractice case…And you’re all excited about the trial. It is a lot more fun to go home and tell your spouse about the trial you were in than about how you put together a settlement that everybody was slightly displeased with but everybody accepted.
ML: I take it that you are of the belief that value of negotiated settlement is under-valued?
JB: I think that’s true.
ML: Do you think there are particular skills that lawyers should develop to make them better at settlement?
JB: The pressure on a lawyer to look like you are strong is understandable. But if you over-do it, you can get the other side quite defensive. You back them in a corner. You’re rude. You do other things that make compromise harder. If you are in a practice where you have to frequently deal with the other lawyer, you should get better at figuring out, “How can I get Seth to settle this case.”
If you have never dealt with this lawyer before and you’re not likely to ever deal with this lawyer again, it is hard to know that dynamic. You may or may not know anything about the opposing party’s dynamic. It is easy to misinterpret things.
Discovery disputes impede settlement talks. There are lawyers that are a little slow in getting discovery. But there are also lawyers who have client problems. “You have to turn that over to Mr. Burke,” and the client simply says, “This is B.S. and I don’t want to.” Lawyers need to be able to convince their client: “You have to do this.” Regrettably there are lawyers who think,”I don’t want to be too strong or otherwise the client’s going to fire me…”
Lawyers need to honestly talk early on in the case about what the client’s objectives are and, at that stage, really try to talk with the client about whether the objectives are reasonable…
In the American system, we generally don’t shift attorneys’ fees. You sometimes start off with a client saying, “This is an outrageous lawsuit. I should not have had to bring it. I should get my attorneys’ fees….” “That’s not going to happen,” (except for certain case types, of course) may well be a better approach right away and not to let the issue of attorneys’ fees fester.
I think it is helpful for a lawyer to have a candid discussion with the client about the frailties of human beings determining who is telling the truth…
I co-authored an article with Dr. Richard Schaefler on “Can Judges Really Determine if Somebody Is Telling the Truth?” The answer is that we are not much better than flipping a coin.
By talking with clients about the fact that it is a human process in which we (judges) can make mistakes allows clients to better accept that compromise makes some sense.
Finally, it is expensive to litigate. The marketplace itself should drive the quality of the cases that are brought be a little higher because of the significant investment in bringing a lawsuit.
ML: If you had a substantial amount of money to put into the court system, how would you spend it? And, if you could answer further, which might not be possible, how much would you need?
JB: The first thing that I would do is invest significantly more money in new judge training. We’re pretty good in the Minnesota court system in providing some training, but I think we could take it a lot farther.
I will give you this example: if you are appointed in a one or two judge court, there’s tremendous pressure to get you on the bench hearing cases right away because, more often than not, there has not been a local judge for a while. Gov. Dayton, last week, appointed a new member of the Hennepin County bench to replace Judge Bush, who left in April.
In Hennepin, that vacancy does not make much difference, but if it was in Marshall, or Albert Lea, or someplace where there are just a few judges, that’s a big deal.
In medicine, there’s a residency, there’s specialization, and there is a lot more training that goes on than we do in the judiciary. We don’t regularly, for example, do “social autopsies,” looking at a case after it’s over. We look back on a case as a learning experience for all of us. We do not have a peer review process. The appellate process is not the same as peer review.
Minnesota and other states have done social autopsies in the area of domestic violence and the system improved as a result.
We did social autopsies when I set up the drug court in Hennepin in the mid-90’s.
Improved new judge training has a mindset. “I want to have a goal to take somebody, elected or appointed, and I am going to make them successful for the next 10 to 15 to 25 years.”
We honestly should admit that if we are not successful with a new judge training, it is pretty hard to get rid of the problem judge.
In Minnesota, there has been angst about judicial elections but very little public discussion about how we effectively train new judges no matter how they get on the bench.
ML: So what do you have in mind when you say “training new judges”?
JB: I would have judges go watch other judges. Most of us have gone and watched other lawyers. Most of the time, it is because you have an oar in it. You know the lawyer.
If you go to watch and you don’t care who wins, you focus on how the judge handles people. For example, how do judges deal with bickering lawyers effectively?
Skill building is important. For example, what would be the best strategy for cost-containment in when you know these lawyers are going to get into all kinds of discovery fights? It is just going to be a pain. It is going to be a pain for you as a judge. It is going to be a real pain for clients who are going to pay for this.
ML: So I imagine you’re thinking about a situation where somebody is appointed or elected as a judge and there is, say, a six-month program or something like that. They would attend hearings….
JB: They’d do some of that. They’d do some cases…Other judges could observe them in action and offer advice…
ML: So, a sort of buddy system?
JB: If I could recreate myself, I’d be a pro golfer. I’d have a swing coach to work on my game.
Bob Rotella is a sports psychologist. He works with the mental aspect of professional golfers.
Just like the pro golfer, there is a mental aspect to being a really good judge.
How do you deal effectively with emotions, yours and somebody else’s? Because if you are going to be a really good judge, you are going to need to know how to deal with your own emotions and the emotions of other people. Those emotions might be quite raw.
ML: Particularly in family law?
JB: Yes. But you also get it in victim impact statements…You tend not to see raw emotions in most civil cases. But you can occasionally. The biggest areas are family law and criminal law.
ML: I just heard a speaker denounce “victim impact statements” which he thinks are a very bad thing in our legal system.
JB: I do not agree with that. I never understood why judges didn’t hear from victims. When Minnesota strengthened the victim impact legislation, I testified in favor of the legislation.
There are some mechanical things that we need to deal with when dealing with victim impact. The biggest example is that, if there is a plea negotiation, the victim needs to understand that my choice as a judge is either to accept the plea negotiation or reject it. I don’t have the option of saying, “Now I am going to give him life…” Expectations make a difference.
How a judge handles the court room can make a difference.
I had a really brutal murder case several years ago. There were two defendants. One defendant pled before me and one pled before another judge. I talked with the other judge and said, “You know we’re going to put these victims through it twice. It would make more sense for one of us to do the sentencing for both of them.” Putting the victims through two separate events did not make sense to me.
A key thing to have the victims in that case understand was to figure out rules of behavior. In that case, I told those in the courtroom, “The rule is that I will listen to everyone here,” (because there was a large number of people) “Anybody who wants to speak, I will listen to you. But, if somebody misbehaves, then I am going to stop the proceeding. And I will not be the one who stopped your loved ones from speaking. You will have been the person who stopped this proceeding.”
ML: The person I heard who opposed victim impact statements opposed them because he felt they tend cause decisions to be made based on passion and emotion when a legal system is supposed to be basing its decisions on more rational…
JB: It is not the tyranny of “either/or.” You are in denial if you think there isn’t passion and emotion in the justice system. Of course, there are emotions. Judges have emotions. They can be passionate. They can be emotional. They can be dead wrong. It is going into denial to say that judges are just the umpire calling balls and strikes. That is not true at the trial court.
ML: But if you feed into emotional decision-making, losing your temper, whatever, this is often thought of as losing control over decision-making and result in bad decisions.
JB: There is no question that there are bad emotions that judges can have. The best illustration I can give you of that is contempt. If I have contempt for you, I debase you. And my decision-making is going to get quite warped.
I can have empathy for you. Empathy is not necessarily a bad emotion.
When George Bush nominated Justice Clarence Thomas, he said one of the reasons he selected him was because he had empathy.
As we fast forward to today, I am not sure I would say that empathy is the strong suit of Justice Clarence Thomas. Today there are a lot of people who want to deny that empathy is even a good judicial value. For example, Senator Grassley attacked Justice Sotomayor for saying that empathy was something a judge ought to have.
There are emotions that are appropriate. The best way to manage them is to be cognizant of them and then question yourself as to, “Why am I doing this?”
ML: If you could change the way the law is practiced in the civil bar in Minnesota, what would you do?
JB: I think that the profession has a challenge in pricing itself out of the market. We’ve seen in the last decade or two some very big prestigious law firms go belly-up.
I am not Pollyanna-ish about the idea that we only ought to have these storied polished 150 year-old firms.
Popham Haik was a really good law firm. Rider Bennett. You can name others.
I think that the cost, the overhead, is a big challenge for the legal profession.
If you’re billing people at $400-$500 an hour, you better be pretty efficient. If you are a partner at a firm in which you say, “I need to bring in a few hundred dollars before I see a dime,” that’s a challenge for the legal profession.
We’re seeing more people who decide they just want to be self-represented, not because they’re poor, but because they do not want to spend money on an attorney.
We do not have corporations that are so wed to the firm that they stay with them forever. The cost-cutting CFO comes in and says, “Off with Dewey, Cheatem & Howe. We’re not going to use them anymore. We’re going to spread the business over several different firms.” Finally, the legal profession has to deal with the challenge of “How do I end up practicing law and enjoying it?”
ML: That, to me, seems like it would be taken care of by market forces. If you’re priced out of the market, you’re going to go out of business. Lower your prices or lower your overhead…Figure it out…
JB: Some of that is happening. I was at a seminar about a year ago with some big national firms. They were out-sourcing their document inspection to India. More power to them. On the other hand, if the way to resolve cases has so many documents that you need to send them to India to get inspected, you kind of have to wonder, “Has something gone wrong with our ability to go try a case?”
ML: I interviewed Hennepin County District Court Judge Susan Robiner a while back and she talked about the “doughnut hole” in civil litigation – where clients are too well off to qualify for legal aid but they do not have enough money to pay lawyers’ market rates. Judge Robiner thought there was some overlap, some mutual interest, where you have civil litigators hungry for business or hungry for trial experience and then you have people of modest resources who need lawyers…
JB: I think that is true to a certain extent. But if you have a client, ACME Car Rental, the problem about bringing in another lawyer who will “try the case for cheap” is that the original lawyer’s fear is that, “If he wins, they’ll like him and they’ll steal my client.”
Unbundled legal services has been talked about for nearly a decade but it has marginally become a part of civil practice and mostly in the family law area.
ML: By “unbundled,” I understand you to mean where a lawyer and client agree to the lawyer’s performing some discrete tasks but not appearing as the client’s legal representative in court?
ML: What is the hold-up in making that more prevalent?
JB: One hold-up is that we do not train people to think that way in law school. Then lawyers think, “I need to make a living as a lawyer and I am struggling with how, if I charge people less, and do less, how am I going to make a decent living?”
That kind of change is hard for a practitioner.
ML: In what ways have you become a better judge over your long and illustrious career?
JB: It’s been long. I am not sure how illustrious it has been…
I am better able to understand how to settle cases.
Candidly you don’t always get better. Honest reflection on a career as a judge has to admit you do have things you get worse at.
For example, I have to guard against saying, “How silly an argument is that?”
A judge does not always grow and get better at everything. The reality is that you get better at some things and you have to be careful about the weaknesses too. Being a judge is a multi-dimensional career.
There are things I have improved on. I am a much better writer than I was 15-20 years ago.
I write a lot. I consciously decided that the weakness that I had as a judge was my writing. So I set out a plan to write one or two law review articles a year, and I did. Then I want to get into shorter things. Commentaries I write for Minnpost and other publications.
I learned to be better because I write a lot.
ML: What judge’s writing do you particularly like?
JB: Judge Richard Posner on the Seventh Circuit is a pretty good writer. And he’s prolific. He writes all the time.
Look at his opinions and his capacity to write other things as well. Judge Posner writes interesting opinions. It is very clear it is Judge Posner’s work, not his clerks. I am not knocking law clerks. But there is criticism of many of the federal courts, true or not, that the judge doesn’t write the opinions, the clerks do.
I think there is legitimate reason to look at Justice Antonin Scalia’s dissents and say, “That is not what you should be doing….”
I think that the tenor in many of his dissents undermines public trust and confidence in the work of the judiciary.
I’d like to see a dissent that begins, “Reasonable people could disagree about this case and what the people of Minnesota should understand is that we are reasonable people…” As opposed to, “I wouldn’t sign my name to an opinion like the majority’s” as Justice Scalia said recently.
ML: Any other thoughts on judicial writing?
JB: Some say judges should “write for the loser.” We need to end up with the loser understanding what a judge’s thinking is. Good judicial writing is not just focusing on, “I need to write an opinion at the trial court level in which I am bullet-proof on getting it reversed on appeal.”
Acknowledging that determining the credibility of a witness is difficult is useful. I am a human being first and a judge second.
Learned Hand spoke of judicial humility. I think that type of attitude is more likely to engender confidence in your decision making than really harsh or detached writing, in which you just use labels for people.
I think it is important for judges to use people’s names and not just “Plaintiff” and “Defendant,” “Respondent” and “Petitioner.” This is a personal experience for them.
ML: Going back to allocating more resources to the judiciary and what you would invest in…We talked about new judge training. Anything else?
JB: I would go back to timeliness. In the criminal area, there are several points of victimization. If you come home tonight and discover a break-in of your house and your home has been ransacked, it is likely you will feel, “I hope the police catch the person, I don’t want the person to come back to my house…” After the police catch the person, we’ve had closure on the first part. But then the next part begins,”What is going to happen to this person? Will I have to go testify?”
You need to bring closure to the case to get true healing. That’s why we have funerals. To bring closure.
If there is a conviction, there is then a sentencing.
The total healing for many victims does not occur until after the sentencing. Then real healing can commence.
We owe it to victims to make sure the system is very fast.
We also have to acknowledge that, for a lot of defendants, we can do some pretty serious damage if it turns out we had the wrong guy. There have been national stories lately of people in jail for years and then the case is dismissed.
We had a guy in Hennepin County jail for over a year. Turns out that they got the wrong guy…
From both perspectives, the idea of a swift court system is really important.
I had an opportunity to go address the National Association of Parents of Murdered Children. They had their convention in Rochester. There were 250 people. Every one of them…their kid got murdered. It was quite an emotional experience. For a lot of them, the slow moving criminal justice system added to their pain. Forensic labs, for example, are far too slow.
Forensic testing can take months.
There is no excuse for that. It actually takes 45 minutes to do most tests. Or an hour.
It does not take months.
We let people down if we have forensics labs that are backed up and can’t get through stuff in a timely fashion.
There is a big national controversy about untested rape kits. My god, in a society as wealthy as we are, what do you mean we have untested rape kits?
If my daughter or my wife was raped, GET THE KIT DONE. GO FIND THIS PERSON. Because, if you don’t, there is a good chance it will happen to someone else.
ML: Is there any state where the judicial system is financially supported to the degree that it should be?
JB: No. I am pretty certain that there are some in worse shape than others. But I don’t know of any state where people are saying, “We’ve really hit the jackpot.” During the recession, lots of states ended up having furloughs of their court employees. That makes it sound genteel. Actually, to the court employees it sounds like, we’re cutting your salary by 20%. Because you are going home on Fridays, and you are not getting paid on Fridays, which means we’re going to cut your salary by 20%.
The number of furlough days has decreased as the economy has been turning around but court’s financing is counter-cyclical. We have “the most business” when the economy is really bad.
When a business is making money and can reinvest and make more money, it is a lot easier to settle civil cases. The lawyer can say to the client, “You can be in court with me over the next two years or we can settle now. You can settle and you can make a lot more money than you would with the money you MIGHT get two years from now.”
ML: Is there any country’s justice system that you think is “where it needs to be”?
JB: I don’t think any of us should want to take any other country’s system as a whole. We have the best overall system even though there are deficiencies. But there are parts of other countries’ systems that are intriguing. The Canadian judiciary is pretty intriguing.
They’re much better at dealing with language issues than we are.
If you are in Canada, you have a right to a trial in French.
Canada will train judges if they are not bilingual. They will train judges to learn French and to conduct a trial in French.
If you walk through parts of the United States today, everybody speaks Spanish. You can go to Los Angeles. You can walk blocks where everybody speaks Spanish.
Maybe we’ve got to confront the idea that courts should be in Spanish if the circumstances require it.
I have a friend who ran a DWI court in Arizona in Spanish. The county attorney went ballistic and sued her, saying the law requires the proceedings be conducted in English even though no defendants spoke English.
I think we could learn from the Canadians and say, “Maybe it doesn’t…”
There are some parts of Australia’s family court system that maybe we can learn from. They have made attempts to decrease the acrimony in divorces by requiring people to try mediation before they file.
I do not think it has been as successful as some proponents believe but Australia is quite a civilized society. We can learn from them.
There are other parts of the world doing other things that can challenge us to think about whether we can do things better. Having said that, I think it is pretty clear that, with all of our warts, the court systems in the United States are in tremendous shape.