• August 25, 2014

I had the good fortune of being able to pepper Judge James Michael Rosenbaum with questions over lunch recently. Given the depth and span of Judge Rosenbaum’s Minnesota legal career and my interest in Minnesota civil litigation, this was a Holy Grail opportunity and I am sincerely grateful to Judge Rosenbaum.

To me, maybe the most interesting comments pertain to Judge Rosenbaum’s deep faith in the jury system, which I wholeheartedly share. There are many serious problems with our legal system in my view (none more serious than the cost of civil litigation and its inaccessibility to most people) but it is easier to find fault than find answers. The jury system, on the other hand, is quite an amazing system.

Here’s my Q&A with retired U.S. District Court Judge James M. Rosenbaum (D. Minn.):

How should Minnesotans pick their lawyers? How should a person with no connection to the legal community, who finds himself sued or needing to sue, pick a civil litigation lawyer?

I sat for 25 years as a district judge. Before that I was the U.S. Attorney for the District of Minnesota. It has been a long time since I have been involved in picking lawyers.

I think you want to find somebody, say, through a friend who gives you a favorable recommendation. One of the best ways to tell — somebody who has worked with a lawyer and seen how they did. Did the lawyer spend time with them? Did the questions they asked and the answers the lawyer gave seem intelligent? What was the result? Were the lawyers responsive? When they called, did they get a call back? If you have a good friend who is a lawyer, ask him who he would recommend for a certain kind of work.

A relationship with a lawyer remains a personal relationship if it is successful and I think it would be best to sit down and talk with a few lawyers. Few lawyers charge for one meeting. Those are things you can do to help find a lawyer.

There is a widespread bias among lawyers that plaintiffs are better off in state court and defendants are better off in federal court. Do you agree with that proposition?


I think that the courts are conducted differently. Federal court tends to be more formal. The rules are very important in federal court. If certain time limits pass, the case is over. In federal court, summary judgments tend to be granted. And the courts of appeals tend to be more supportive of the rulings. In that regard, the state courts are more flexible.

I think one of the reasons that people think federal courts are more favorable to defendants is that the lawyers who use the courts, the federal courts, are more used to those rules, and recognize the necessity of very strict compliance with them. But I do not think there is any real difference that is outcome determinative in general.

How about plaintiffs’ preference for juries versus defendants’ preference for decisions by the judge?

In federal court, you get a jury when Congress says you do.

In federal court, it is charming that people are impressed with the power of federal courts but federal court judges understand that their power is very restricted. Unless Congress gives you the power to do something, you have nothing that you can do. Federal judges are judges of limited jurisdiction. And the restrictions can be very very tight.

When John F. Kennedy was shot and killed in Dallas, if Lee Harvey Oswald would have lived, he would had to have been tried in state court because it was not a federal crime to kill a U.S. President and there was no basis for federal jurisdiction over the process. And a federal judge could not do a thing about that.

That happens quite frequently.

If you were counseling a plaintiff in a personal injury case, would you recommend she has her case decided by a jury? Or would you say, “It depends who we are assigned for a judge?”

If you’re seeking damages, people tend to want to go to a jury.

Do you think that that is reasonable?

It’s hard to believe, but I’ve never really thought about it.

Let me back up a bit. I am old. I am old enough to recall when the civil rights laws came down, there was no jury trial. They were bench matters. The perception among the lawmakers was that the public would be unresponsive to race claims.

Over time, the public came along. If the public had not been there before. So now they have added juries and almost all of those cases are tried to juries.

One of the reasons that I don’t think about the question much is people who work with juries love juries. Juries are stunningly good at what they do. By “people who work with juries,” I am talking about judges and lawyers who try a lot of cases.

Juries make mistakes. But I have sometimes said that I thought jurors were wrong far less frequently than the Court of Appeals thought I was wrong.

I know of one trial lawyer who said, “I would rather have 12 idiots decide my case than one idiot…”

I can live with that. If I were charged criminally, I would rather have any 12 people you pick to be in my jury rather than any judge, including me.

If you could change something in our justice system, what would it be?

It actually ties back into what we were just talking about. There is a very wide conception that juries are composed of 12 idiots. Irving Younger, a superb trial lawyer, judge, and then law professor, said, “You take 12 people, pull them together as a jury, and the Holy Ghost descends on them.”

I have seen them work extraordinarily hard.

We had a very big case in Minnesota many years ago, involving a fairly prominent public figure. The case was investigated by the FBI. There was a multi-million dollar defense. CPAs. Accountants. The jury discovered that one financial instrument was charged in two different counts. Nobody had found it in the whole course of the case.

But what change would you make in the civil justice system in our country?

I would change that perception. And with it, I hope, increase people’s interest in getting involved in it. Not trying to get out of jury service.

In my experience, virtually always, people who have served on juries come out with a heightened respect for the system, understood how hard they and others worked to make sure they were fair, and I would try to emphasize that so people understood that we have a helluva system here. That’s what I would do.

How do you respond to those who say, “We have a good system so long as you can afford it?”

Actually, it is a helluva system for those who can’t!

The civil system?

Well, public defenders are across the board some of the very best criminal defense lawyers. They are well practiced at trying cases and they have tried a lot of them.  You get them if you cannot afford to pay for a lawyer.

But, the reality is, as Jimmy Carter once said, “Rich people drive Cadillacs and poor people don’t.” It is not a charming statement but it is true. Who your lawyer is can make a difference and lawyers can be expensive.

Have you ever given any thought to what is the lowest dollar amount that a civil litigant can make a viable claim in our justice system?

The system is not set up to handle really small claims.

To prepare a case and try it in federal court is going to cost, at least, in the aggregate, between $50,000 and $100,000 per side. Patent cases can cost $1 million.

That’s the way it works.

There is always conciliation court for small claims. You can bring a $7,000 claim there. And you don’t need a lawyer. It costs you $35 and you have to take a day off from work. I guess that doesn’t trouble me very much. There are venues where those kinds of claims can be heard.

The other thing is — not always — but far more often than people think, there are two sides to every story. And there are a fair number of silly and nuisance claims that are brought.

When you say “a fair number” can you put a percentage on that?

Nope. But it is remarkable how seldom it is that both sides agree that one side should win.

I have a pro-plaintiff bias, but I get the sense there are very few nuisance or frivolous cases because the disincentives are substantial. Do you disagree?

Well, the American system does not have anywhere near the kinds of disincentives that the English system has. In England, loser pays.

Do you take a position on Minnesota’s rejection of the federal “Iqbal/Twombly” pleading standard? Do you approve of that or disapprove of that?

I was a trial judge. They told me what the law is and I would apply it. I did not do policy work. I am comfortable with it either way. And I could live with it either way. I don’t think either rule is a real threat to ordered liberty. People have a right to have their claims vindicated.

I did practice in Illinois many years ago where they had forms of pleading that had to be pled out in a very specific way. It was just a different set of hoops to jump through.

And that was fine with me. I never cared what the rules were so long as they were applied to both sides.

What I could not stand…If a judge wanted to be a pussy-cat, I could live with that. If a judge wanted to be a tyrant, that was fine. As long as it happened to both sides.

Are there any decisions that you made that you regret, that you wish you had done otherwise?

A number of them, I had no choice. I am speaking particularly of criminal sentencing. The United States has been locking up a whole lot of people for grotesquely long periods of time because of the very rigid mandatory minimum sentences and guideline sentencing.

I spoke against it occasionally — maybe once too often — but it has now swung the other way, thank goodness. A lot of people have lost enormous amounts of time in their lives.

In civil cases…I suppose I did things wrong. I did not know it and I did not mean it. There were times when I just did things wrong because I did not know how to do them right and I learned.

I tried very hard and I think I was known for doing my job reasonably well.

Trial judges are going to make mistakes. Trial judges have about a tenth of a second to make evidentiary rulings at trial. I think I only took a break in trial to rule on objections a couple of times. A very good trial lawyer, though, will anticipate issues and will prepare and brief them in advance.

I know of one very good trial lawyer whom a judge called up on a thorny evidentiary question in the case and the trial lawyer said, “I don’t care how you rule on that matter. Go ahead and rule either way.”  The talented trial lawyer has a sense of when to fight for a point and when to drop it.

Really good lawyers anticipate objections or frame the evidence in a way that is not objectionable. There is very little evidence that is kept out if the lawyer knows how to do his job. They structure their argument and they structure their questions.

Evidentiary disputes are fights, but they’re not food fights. They’re structured. There are rules. If you master the rules, you can get around the structure.

When you presided over trials, I take it that, at a certain point, you would form an opinion of who should win?

Not usually. But, obviously in some cases… I had a criminal case where the defendant had a person who owed him a substantial amount of money. His girlfriend lured the debtor to her place, where the defendant was waiting with his associates. They used pliers to break two of his teeth and pull out two more of his teeth. In that kind of a case, I had a sense of who should lose the case.

What was the defense?

Maybe it was a take-home final in dentistry? But the reality is that, as a judge, I abandoned advocacy and my job was to make the proceeding fair. I did not worry about the outcome.

A slightly different question: When you presided over trials, I take it that, at a certain point, you would form an opinion of who would win?

My mother is an inveterate observer of all of these things, like the murder trial pending in South Africa of athlete Oscar Pistorious. I have no opinion on the outcome of cases. My job was not to decide jury cases and I did not. It really is a mental trick. As a trial judge, I did not focus on it very much.

Do you think lawyers, then, can predict outcomes to their clients? I am frustrated because clients want certainty and the process is extremely uncertain…

I do not agree. Good lawyers advise their clients as to the strengths and weaknesses of their clients’ claims. Lawyers frequently know. But lawyers sometimes do not tell their clients the whole truth because, if they tell a prospective client that the client’s case is weak, the prospective client will just find another lawyer.

In mediations, I sometimes have lawyers asking me, the mediator, to tell the client that his case is not very good. The lawyer cannot deliver this message because it is sometimes inconsistent with what the lawyer said previously. “If I tell him, he’ll fire me…,” a lawyer might suggest.

Do you agree that the practice of law has changed over the decades that you have presided over it?

I think so. I am not one who over-weeps for how gentlemanly and lady-like we were in the good old days. The problem is how well or how little you know your opponent. If your opponent is someone you’ll never see again, there is a tendency to be less nice. In practice areas where adversary lawyers see one another more often, they tend to be nicer.

So, maybe, as the numbers of lawyers has grown and the field has widened, it has gotten somewhat worse, but it was never pleasant like a Victorian drawing room to the best of my knowledge.

Have you ever gotten feedback from the bar about your disposition on the bench?

The Almanac of the Federal Judiciary said of me that I was very tough but if you were prepared you would have a good time. [Editor’s Note: The Almanac of the Federal Judiciary is a source of anonymous lawyer comments about judges]

Somebody was going to have to be in charge of that courtroom, and, in my courtroom, that was going to me.

I hope nobody ever said I was not fair. If they said I was not nice, I guess I cannot help that. But I hope no one ever said I was not fair.

The thing is that you get a reputation and that can become quite independent of who you are. I may have been Mother Theresa but if people believed that I wasn’t… As I said, if people said I was not fair, that would be a very bad thing.

There are very very good lawyers who can take over a courtroom. And they should, if they can. But the issue is if they can…

Also, I have a sense of humor but some lawyers did not think I was funny when I thought I was, but that’s another subject.

What are you doing now, what is your rate, is it negotiable, and what do you bring to the process?

I do mediation, arbitration, and independent neutral evaluation (“INE”), something that I’d not heard of before, to be honest. Mediation is helping parties to negotiate a resolution of their dispute. Arbitration is really private judging. And INE is kind of like using a judge for a bench matter the way you might hire a “practice jury” or a “mock jury” for a jury matter.

The parties submit papers to me, I review them, they argue the case to me, or to panels of judges, so there are various kinds of things.

My mediation work is specialty work. It tends to be focused on complex matters — securities, financial matters, antitrust. I do a great deal of patent work. Class actions. MDLs. Those kind of areas. I tend not to do automobile accident cases.

I charge $600/hour in Minnesota. When I travel, it goes up to about $800/hour. I have had those fees since I began this work and it seems to be consistent.

You have seven grandchildren, do you hope for any of them to become lawyers?

And another one cooking, by the way.

None of my daughters were the least bit interested. They watched. They saw how hard judges’ work is. Every night and every weekend, we came home with homework. [Editor’s Note: Judge Rosenbaum’s wife is Hennepin County District Court Judge Marilyn B. Rosenbaum.]

Writing opinions… I have one that went through 23 drafts. You cannot do that during the day. I don’t think my kids wanted to work that hard.

I would love it if my grandkids became lawyers. I think it is a very nice way to make a living and I enjoyed it immensely.

At its base, the law deals with relationships between humans. That is the most fascinating thing we have. I have been a human for many years, though there are probably many defendants who don’t believe that.

It’s what humans do, and what their relationships are.



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