In Minnesota Litigator’s experience of former U.S. Magistrate Judge Jeffrey Keyes, he seems to embody kindness, humility, and professionalism. He has had a long and distinguished career in Minnesota civil litigation and, unsurprisingly, has some important insights as to how our system is succeeding and how it is failing. (In critical ways, it seems to be doing plenty of both.)
ML: Judge Keyes, let’s start with your bio.
Keyes: All right. I’ll give you the deep background. I was born in New York City in 1946, and grew up there, in Manhattan, the Lower East Side of New York City.
My family moved to south Florida in 1957. I went to high school down there and then went to college at Notre Dame. I graduated from Notre Dame in 1968, did a one year stint in graduate school at Georgetown, and then went to Michigan to law school.
ML: What kind of graduate school?
Keyes: Government, foreign service at Georgetown, but then I decided right away that it was law school that I really wanted. So then I went to Ann Arbor for law school and graduated in ’72.
Then I faced the issue of where to go to work. I had summer clerked in Chicago at Sidley Austin, an excellent firm, and I really thought seriously about going back to Chicago. Then I had heard great things about the city of Minneapolis. I had never been to Minneapolis, but it sounded like the kind of place that I thought that I might be looking for. Came out here and interviewed with several of the firms, and then we decided that, “Well, let’s take a shot at this beautiful city in the Midwest….” And it was a great decision. I came here in 1972 and went to work for what was then the Haverstock Gray Plant Firm, now known as Gray Plant Mooty. I worked at Gray Plant, which is just a wonderful, wonderful place, from 1972 to 1986, and then I moved over to Briggs and Morgan.
ML: Why did you move?
Keyes: Well, at that time, there were a lot of changes going on in Gray Plant firm. A large group of lawyers had left, Dick Bowman had left. Initially, I was going to go work with Dick, because I had done a fair amount of work with Dick. You know Dick Bowman, who recently passed away. Such a wonderful lawyer. So there were a large group that left at that time, and I got itchy about doing something else. Then, shortly thereafter, the opportunity at Briggs and Morgan arose. So I decided to move there. But it was a situation where I maintained a long and wonderful relationship with Gray Plant. In those days, though, it was very difficult leaving law firms. Today, everybody moves around so much. But at that time, when you joined a law firm, I always said it like joining a monastic order. You didn’t just move around. It was a difficult decision, but one that was right for me at the time. I always say that I had the opportunity to work for two excellent firms, and great people, during that whole period of time. It was a good decision. And I worked at Briggs until I went on the bench in 2008. So 22 years at Briggs.
ML: What prompted you to make the move to become a United States Magistrate Judge?
Keyes: For about the last seven or eight years, I had been doing quite a bit of pro bono work at Briggs. I maintained a very rigorous litigation practice, but I was, in that last eight years or so, doing quite a bit of pro bono work, including some very complex pro bono work. I’d handled a death penalty case that went on for about 12 or 15 years, I was taking on quite a bit of other death penalty-related work. I took on, I was doing a lot of human rights work. I ultimately took a case of Keyse Jama, a Somali immigrant in Minneapolis who was being deported to Somalia. We argued that he could not be removed to a country that could not accept him. That case went all the way up to the U.S. Supreme Court. I argued that case to the Supreme Court in October of 2005, I believe, the last week that Rehnquist was on the bench. I was very engaged in these pro bono matters.
At that point in time, I was 61 years old and I was kind of looking at the future and trying to decide, okay, what do I do for the next part of my life? Briggs and Morgan firm had been very supportive of all of this — not without some push-back — always when you take on a huge amount of pro bono work, there are always issues involved — but they were very supportive. I had always seriously considered wanting to do something that was a public service in my career, in my practice. So I was considering, well, should I go into a full-time public service? Maybe pro bono work on a full-time basis? I felt I still had a lot of energy left at age 61, and then I was at a seminar and I was on a panel, and Janie Mayeron and I were on this panel together. After it was over, Janie turned to me and she said, “Jeff,” she said. “You know we have a new opening on the federal bench, the Magistrate Judge’s position. Why don’t you apply for it?”
It just kind of hit me. I went home and I talked to my wife about it, and more and more I thought about it. Up until that point in time, I had no plan to go on the bench, and then the more I looked into it, the more I became interested and applied for it, and then took it on. It was a wonderful eight years on the bench.
ML: Over your career, what would you describe, if anything, as positive changes in the practice of law?
Keyes: I think that a major positive change that I see is the depth in the practice of law. When I see, across the board, the level of talent and how deep it is in all areas of practice, compared to when I started in the practice 45 years ago, it is … I think the result is that we are able, as a profession, to give enormous service to the community and have an impact that certainly wasn’t there when I started in the practice of law. It’s due to a number of things. I think a major driving factor there is the presence of women in the legal profession. When I started in the practice, I think there might’ve been one woman in our law firm out of about 35 lawyers, and actually, she may have started a couple years after I started. Out of my law school class, there was probably, maybe five or ten women out of three or four hundred in my law school class. Obviously, there’s been an enormous explosion of talent in our profession as a result of that.
Also, the significant increase in minority lawyers…I think the law became, over the years, more and more, something that really attracted people of best talent.
I really saw it on the bench. Now, granted, I was in federal court and we see a lot of good practitioners, but I was really surprised at the depth in so many areas of practice of law. When I got on the bench, I got exposed to areas of practice I didn’t even know existed. There were specialists in education law, and consumer protection issues, and railroad issues, and on and on, and in every area, I would see these really talented lawyers from not just the big firm lawyers, but this wide variety of people who were practicing successfully. I think that’s probably a very big positive in terms of the impact that we have on society.
ML: How about negative changes? Have you witnessed any negative changes over the years?
Keyes: Yes. I think the problem that we face, and we’ve faced for a long period of time, is that the litigation has become so expensive, and virtually inaccessible for the average person, that has a, to them, a significant, maybe even life-altering or life-changing problem. But to try to get justice in a civil case where you have $50,000 involved or $100,000 involved, and have a system which can give you justice and not break you in the process, it’s become more and more acute. I saw it all the time on our bench, and it continues to be the major problem. We have, I think, through many good intentions, we have built a litigation monster in an attempt to try to avoid litigation by surprise and to give everybody a full and fair opportunity for discovery. But then when you couple that with a very litigious society and lawyers who are very adversarial, you end up with a result that continues, I think, to plague us in terms of trying to resolve cases in a way that are both efficient but also just.
ML: Do you have any thoughts on what the system or lawyers could do to address this problem?
Keyes: You know, one of the real eye-openers for me when I got on the bench was handling both criminal and civil matters on the bench, and I would see the criminal cases that we had in federal court. The stakes couldn’t have been higher for what was involved. You had lawyers who had handled those cases, who would try cases all the time, and knew how to try cases, both the prosecutors and all the defense lawyers. You would have a case where you would have the Speedy Trial Act would apply, sometimes that would be extended, but the cases had to get to trial quite quickly. You had virtually no discovery, no depositions, some minimal document discovery, as the government had to turn over its file, and some information about witnesses. Some of the cases were just really highly complex commercial business litigation cases, especially now in the days of white-collar fraud and those cases.
Some were big document cases, everything at stake. The cases would get to trial promptly. The motion practice would be very, very targeted. The attorneys, both the prosecutors and the defense counsel, who worked against each other all the time, always got to the point. There was much less acrimony than you would ever see on the civil side. You would see lawyers who would go into hearings … I did suppression hearings all the time where we had testimony. You want to see lawyers who would be able to efficiently examine witnesses and get to the point. You go over and you watch the lawyers in the Federal Defender’s Office handle a case. You watch a good prosecutor examine a witness. They get to the point. There are a lot of lessons there that we can learn for civil litigation. As a magistrate judge, I tried to implement some of those lessons, but it was very, very difficult to do, to experiment with.
What I would do would be I would send civil cases to trial much faster, I would radically cut down on the scope of pre-trial discovery. I mean radically. I would do it in terms of what the attorneys were able to do by way of taking depositions. I would, at least in federal court in civil cases, I would expand witness subpoena power nation-wide so that, like we have in the criminal cases, so that we could again limit the amount of pre-trial discovery. We’ve gotten ourselves into a situation in the civil area now, as a result first in the 1980s with summary judgment being utilized more and more to resolve cases, and then, following that, with Twombly/Iqbal and the resulting increase in motions to dismiss. We now have set up these procedures… And then you add to that all the discover costs, et cetera. We’ve set up so many gates that you have to get through before you could ever get to a trial. It’s obvious why you end up, then, with these not only enormous costs, but then the fact that rarely …
It’s almost as if something has gone wrong with the system if we ever have a jury trial, if it ever gets to that in any sort of a complex civil case.
Maybe I’m on my soapbox here, but those are certainly things that I would say, “We should be taking a real strong, hard look at.” Part of the problem is the way attorneys are accustomed to practicing. Now I do a lot of arbitrations. Arbitration was supposed to be an alternative where you could go the arbitration route, you could get things resolved quickly and less expensively. So oftentimes now, I’ll get involved in arbitration, and we have the preliminary scheduling hearing. Attorneys then say, “I want to have a year of discovery. I’ve got to have depositions. I have to have document discovery. I want to have motion practice, dispositive motion practice.” And you end up right back in the same world.
As an arbitrator, I try to encourage the parties to do things much more efficiently, but in the end, I also recognize that I have to respect the way in which the lawyers, in fact, on both sides, want to handle their case and their duties that they feel they have to their client. So the same thing goes on there.
ML: This suggests that you must believe strongly in the value of mediation?
Keyes: I am. I really saw this on the bench. As a magistrate judge, I did many, many settlement conferences. That’s a big part of the job of magistrate judges in the District of Minnesota. What I found was that, first of all, in most civil cases, it is rare to find a case where both parties or all parties have some fault involved. You have some kind of human interaction that’s occurred, and whether there’s precise claims of law or not, you usually find that there’s some type of fault amongst all who have been involved in whatever the human interaction is. What the mediation and settlement conference process allows you to do is that it allows you to, I think, in most civil matters, to get the most just result of the dispute in the most efficient way. I say that because when a negotiation goes on, and if you have attorneys who know what they’re doing, and if you have a good mediator, basically what you are doing in that process is you are allocating fault. You are making decisions on the basis of that, and you end up, then, with a result where it’s a compromise.
But if you really step back and look at where the outcome was, in most situations, you’ve ended up with probably the best and most just result that you can obtain. If you had gone to trial in the case, particularly if it’s a jury trial, it’s more than likely that you could not have obtained that type of allocation, because either you’d have to decide explicitly for one side or another, or you wouldn’t get that considered give and take that goes into the resolution of the case. So I have become a very, very strong believer in the importance of this as one of the best, and one of the good things that’s really developed in litigation over the last, let’s say, 15 or 20 years, where we have more and more, I think, because of so many of the flaws that we have in our litigation system, where we have pushed more and more toward the mediation side of things, in both state and federal court.
It’s not just a matter of, a lot of people look at it and say, “Well, it’s a way to clear out cases, or to get rid of cases on the docket.” That’s not what it’s really about. I think what it’s about is getting just results, and in that way, I’m very, very proud of any role that I play as a mediator or did on the court in settlement conferences, and it’s very gratifying.
ML: Do you have a feel for your percentage of cases settled in settlement conferences?
Keyes: It’s huge. In federal court, well, out of all civil cases, what, we have about 98 or 99% of them get resolved without trial. Out of that, through the combination of, we have many get resolved on dispositive motion practice, and then you get cases that settled without the intervention of a judge or a mediator, but I’d still say now, because of the system that we’ve set up, probably, the vast majority of cases, at least in federal court, get resolved either through magistrate judge doing a settlement conference or a private mediator doing a settlement conference. In federal court, our magistrate judges are so good. I mean, across the board in terms of as mediators and settlement conferences that the parties have the advantage of being able to utilize that resource to get their cases resolved.
ML: Would you say that settlement conferences you’ve presided over, you would say 80% settled?
Keyes: Oh yes. Yes.
ML: As a result of the settlement conference?
Keyes: Yes, yes. I would say that, if you include, yes, all the settlement conferences I did on the bench and then also now mediation since then. I’d say probably 75-80%.
ML: Let’s talk about the failures, the minority of disputes that don’t settle in a mediated settlement conference. What percentage of those do you, in your mind, attribute to one side being unreasonable, or one side’s lawyer being unreasonable or mistaken? Or do you apportion responsibility like that?
Keyes: I haven’t done it like that, kept track of that, but certainly, that is often the reason that when something doesn’t settle, it’s because of that. Although, actually, I find that that’s a small part of everything I’ve seen. There are some cases where … I probably see a little bit more where it’s not the lawyer being unreasonable, but there are some clients, there are some parties simply that do have unreasonable expectations, or there are deep-seated emotions involved in a problem that can’t be overcome through rational discussion and weighing of cost-benefit analysis. Sometimes, it is the unreasonable lawyer, but, more often, I’ve been pleasantly surprised that the lawyer who either has a reputation for being the unreasonable lawyer, or may start the mediation as the chest-pounding, unreasonable one, in the end, actually becomes the voice of reason with their client because the client oftentimes in that situation may actually listen to that lawyer more. It’s certainly present there.
ML: How do you deal with it as a mediator if you think a lawyer is an impediment to settlement?
Keyes: Sometimes, what I will do is that I always try right from the beginning of any mediation to develop, as much as I can, a good, working relationship with the party, with the client, so that I’m talking to them, I’m getting them talking to me, and trying to develop a new relationship that wasn’t there before. Sometimes that works, sometimes it doesn’t.
Then there are situations where I have a wholly unreasonable lawyer involved where I’ve even tried to see if they will allow me to meet privately with the client so I can talk to them. But I would never — one thing that I’ve never done and it would never work — I would never demean a lawyer to a client and say, “Your lawyer is an unreasonable lawyer.” I wouldn’t do that. It’s not my role and it wouldn’t work.
Oftentimes, I’ve been successful with lawyers who will allow me to and want me to talk privately to their client, so that happens.
ML Who are some of the most inspiring lawyers or judges who you’ve come across in your long career, and what about them has inspired you?
Keyes: Well, we all have mentors, and I had some pretty wonderful ones. When I started in the practice of law in 1972, when Frank Gray was still practicing at Gray Plant, and it’s hard to find somebody today who would fit that model of being a person who would just exhibit the highest sense of ethics and the strongest commitment to fellow lawyers and to the system. In fact, our firm was filled with people like that, like Jim Simonson who I had the opportunity to work with for many years. Just a wonderful trial lawyer. Somebody like Dick Bowman, who you couldn’t imagine what it was like for a young lawyer, even though he was not that many years ahead of me, to sit at the feet of somebody like Bowman when you watched how he would try a case.
I always found, too, that as I was growing up as a young lawyer, it was not just the lawyers in my own firm, but it was these people out in practice that you would watch and you would observe, and they could be on the other side of cases, where you would see their … In those days, they probably would use the phrase a “gentleman practitioner”. Well, we don’t and we shouldn’t use that phrase today, but they would exhibit that sense of firmness and kindness that would exhibit everything that they do. At Briggs and Morgan, when I came there, and even then, by then, I was a more senior person, but having the opportunity to work with people like Dave Forsberg and Sam Hanson continually, they would be role models.
I always found over the years, too, that the younger lawyers who came in who actually worked “under me” would end up being mentors for me, that I would learn from people like Jim Long and John Eisenberg, young lawyers who I mentored.
And then, of course, when I got on the court, I didn’t know what to expect when I went into that job on the court. Well, I had looked at what magistrate judges did and I wasn’t exactly sure what the responsibilities would be involved, or what the relationship would be with the Article III judges.
Then I got on that court, and what a wonderful group of colleagues. I mean, to a person to have the opportunity to be on a court with every one of those judges, both Article III judges and magistrate judges, the learning experience from them. Not just in the technicalities of the law, but in terms of how do you conduct yourself, how to be a judge. Even though I was in my sixties when I took on that job, I would sit there day after day and I would watch what these people did, the stress that they were under, how they handled themselves. It was a wonderful experience.
Also, when I was on the court I was blessed to have two extraordinary young lawyers, Danielle Mair and Brian Pousson, as my law clerks. I was supposed to mentor them, but I found that they were often the ones mentoring me. Their passion for the law, their dedication to making sure everyone who came into court, no matter their social status or income, got the fairest of treatment, were an inspiration to me.
ML: Do you have particular funny stories from your years of practice that you regale people with? Do you have any particular stories you entertain folks with from your long experience in the law?
Keyes: Probably the funniest stories would always fall back on my own inadequacies. I remember one that I always go back and I look at my own behavior, and I only have to look back and just say, “How could I have done that?”
I had a case that was, it was going on in Miami, a federal court in Miami. On one day, the following series of events occurred. First of all, I was arguing a different motion before the judge there, and he, at some point in the argument, he looked at me and he said, “Mr. Keyes. I think you’re pissing on my leg and you’re calling it rain,” which I thought was a wonderful turn of phrase, and which did not make it to the transcript, by the way, after the argument. I thought to myself, “Well, I’m really moving this one along…”
Then I walked out on the steps of the courthouse. The attorney on the other side of the case was extremely difficult to deal with. Something about attorneys in Miami, they’re extremely difficult attorneys, I find. We got into a shouting match, it’s probably 95 degrees and 120 percent humidity and I’m on the steps of the Miami Courthouse. So I don’t know if this is appropriate for your record or not, but I’ll tell you the exact exchange that we had. One thing lead to another, and so the attorney on the other side says, “F*** you, Keyes.” And then I came back, mistakenly, with “Oh, f*** you.” And then he says, “No, f*** you.”
I’m standing there thinking, this is the end. Here I hold myself out as an ethical practitioner, I’m on the steps of the Miami Courthouse, and I’m engaging in this exchange like it’s from The Sopranos with this guy. I had to take a step back and say, “You know what? Something’s got to change here.”
ML: If you have a message to the Minnesota bench and bar that you would like to communicate, what would it be?
Keyes: I guess when I look back, there are so many things in my career, I think that … Before we started the recorded interview, we were talking about the fact that there really are no small cases. I think what that suggests is that sometimes, as attorneys, we can lose sight of how almost earth-shattering it is for people to be involved in our legal system.
For most people, in the course of their lives, they may have one exposure to the legal system, and it’ll be something that they and their families will remember forever, for generations to come. It becomes so easy for us to think, it’s just another day at the office, it’s just another case, and to lose sight of how important that is. Maybe you lose sight because there aren’t a lot of dollars involved, or because we think that the matter that we had before us that day just isn’t that important, but everything really is.
As a result of that, kind of to keep that in mind not just for parties, but even for lawyers, that every time they appear in court or in any circumstance, they’re putting their own self on the line and they’re putting their self-respect on the line. I remember, and I’m sure you do, too, I remember every snide or snarky comment a judge ever made to me, every put down. Fortunately, there weren’t too many of them, but boy, I remember them. I know when I got on the bench, when you get on the bench, as you know, everybody starts saying how funny your jokes are and how smart all your comments are, no matter how dumb they are. And it becomes very easy to get into, you could very quickly start taking yourself too seriously and start making the rude remark or the put-down. Boy, a couple of times when I caught myself doing that, I was ashamed of myself that I had, because I remember what that meant to me. I think it’s something that, at least for all of us judges, it’s a lesson that you just always have to keep in mind.[Editor’s note: For earlier Minnesota Litigator posts of judge interviews, see: Hennepin County Judge Susan Robiner, Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser.]