2011-12 Dec

Newsletter of the Federal Courts Vol. 43 Number 12 December 2011

Pilot Project Hopes to Tame Complex Civil Cases ...............................................................pg. 2

National Security Cases Pose Challenges ................................................................................pg. 3

New Act Clarifies Venue and Jurisdiction Issues ...................................................................pg. 5

INSIDE

National Conference Supports Federal Trial Judges

For Judge John R. Tunheim, chair of the ABA Judicial

Division’s National Conference of Federal Trial Judges, presiding over a jury trial is one of the most interesting parts of his job. In this month’s interview, beginning on page 10, Tunheim talks about some of the issues that concern trial judges today.

INtErvIEw

Chat Live Now! On-Line Chat Improves Service to Public

to better inform and educate the public,” said Arizona Bankruptcy Clerk of Court Brian D. Karth.

The U.S. Bankruptcy Court for the District of New Mexico was the second bankruptcy court nationwide to offer visitors the option of an on-line chat. Two years ago, Bankruptcy Clerk of Court Norman Meyer, with some of his staff, attended a planning seminar at which they identified enhanced service to the public,

particularly for pro se filers, as a court goal. The on-line chat was one in a range of things to accomplish.

Meyer was familiar with live chat options, as most Internet users are who have purchased from on-line retailers, or perhaps made an on-line appointment. He’d also seen the Arizona bankruptcy court ’s chat on-line option.

“You see them on retail websites all the time,” said Meyer. “I thought, ‘Why don’t we do that?

Rather than voice messages, users send and receive text messages. It ’s convenient and immediate. Users are already on-line, and

Continued on page 9

Continued on page 7Peruse the website of the U.S. Bankruptcy Court for the District of Arizona and you will find all kinds of information

for filers, from bankruptcy forms and publi-cations, to instructions on how to file. As the on-line welcome notes, the court is committed to providing “the greatest level of public service, access and information.”

That access also comes with a question—and an invitation—on its webpage: “Have a Question? Chat with Us Live!”

The Arizona Bankruptcy Court was the first bankruptcy court in the nation to offer infor-mation seekers the option of an on-line chat.

“The court started live chat several years ago, as a result of a strategic plan initiative

FY2012 Funding Approved

The Consolidated Appropria-tions Act of 2012 has been passed by Congress and

is expected to be signed by the President. The bill provides full-year funding for the nine unfinished fiscal year 2012 appropriations bills, including the Financial Services and General Government bill which funds the Judiciary.

Overall, the Judiciary received $6.97 billion, about a 1 percent increase above the fiscal year 2011 enacted level, and $206 million

The Third Branch December 20112

Pilot Project Hopes to Tame Complex Civil Cases

Last month, the District Court for the Southern District of New York began an initiative that judges, lawyers and

litigants hope will reduce both the cost of and the time spent on complex civil cases. Over the next 18 months, the court will conduct a pilot program following a set of rules and procedures affecting nearly every aspect of the management of cases designated as complex.

“In a complex civil case,” Judge Shira A. Scheindlin explains, “the more ‘hands on’ management there is, the more engaged a judge is in making prompt rulings and resolving discovery issues, the lower the costs and the less time the case will consume from inception to resolution.”

Scheindlin was instrumental in devel-oping the pilot. The impetus for the pilot came when she was a panelist at the 2010 Civil Litigation Conference at the Duke University School of Law, where current litigation practice and proposals for improving civil litigation in the federal courts were discussed. Afterward, with Judge John G. Koeltl (S.D. NY), who helped plan the Conference, she began to flesh out how the district court might develop its own procedures.

“There has been this cry from the Bar for more aggressive management of civil cases,” she said. “With the momentum from the Conference, Judge Koeltl and I wanted to see what could be done to improve case management in our own court.” Scheindlin also chairs the district’s Judicial Improvements Committee ( JIC), and with a go-ahead from Chief Judge Loretta Preska, she formed an advisory committee of 31 experienced attorneys, who also would participate, with JIC judges, on four subcommittees.

“My goal was to pick those attorneys with broad constituencies. Attorneys who not only were enthusiastic, but were drawn from small and large firms, who were defendants’ lawyers and plaintiffs’ attorneys,

corporate counsel, and attorneys from the public sector,” said Scheindlin.

Beginning in January 2011, and over the next several months, the subcommittees on Initial Pretrial Case Management, Discovery, Motions, and Final Pretrial Conference met to consider and recommend best practices for the management of complex civil cases. Their reports were submitted to the JIC, which in turn presented the proposals to the district’s Board of Judges. By September 28, 2011, the proposals, with some suggestions for implementing the final version, were accepted and the pilot plan adopted by the court.

The pilot plan’s rules and procedures took effect on November 1, 2011. In some instances, the plan addresses something as simple as page limits for briefs, letters, and discovery requests.

“It’s not uncommon to have massive discovery requests, for privilege logs to go on and on, for statements of material fact to be hundreds of pages long,” said attorney Gregory Joseph, co-chair of the Discovery Subcommittee. “The recom-mendations we made are practical suggestions: requests for pre-motion conferences of no more than three single-spaced pages, statements of material fact no longer than 20 pages per party. What we’re asking parties to do is cut down on needless cost and focus on the essentials.”

Procedures also encourage promptness: Initial pretrial conferences within 45 days of service on any defendant of the complaint (slightly longer if the federal government is a defendant); decisions on discovery disputes within 14 days; agreement on schedules for parties to exchange deposition designations.

An initial pretrial conference checklist, a “fill-in-the blanks” order to manage the electronic discovery process in a case, and an order to refer actions to a designated

magistrate judge when the district judge in the case is unavailable, are included with the pilot rules and procedures and also are designed to move a case along.

A standing order designates a case as complex based on nature of suit codes. Attorneys receive a copy of the pilot plan when the order is issued. The plan also is posted on the district’s website.

In September, Joseph spoke about the pilot plan at a meeting of the local bar, giving attorneys a preview of what was to come. “The Bar was quite pleased,” Joseph relates. “Most didn’t want to limit the pilot to just complex civil cases; they wanted a more widespread application.”

In fact, some judges on the court have indicated they will adopt a number of the plan’s recommendations for use outside of the pilot.

“Every judge has a copy of our report with its recommended case management techniques,” said Scheindlin. “It is best practices. But most of all, it is aspirational. Our judges and the Bar hope we all try for the goals we’ve set. If everyone does, case management will be better.”

A standing order issued by the clerk’s office in the Southern District of New York designates a case as complex based on nature of suit codes. The following cases would generally fall under

the pilot program:

■■■ Stockholders’ Suits■■■ Tort Product Liability■■■ Airplane Product Liability■■■ Motor Vehicle Product Liability■■■ Personal Injury Product Liability■■■ Antitrust■■■ Patent■■■ Trademark■■■ Securities/Commodities/Exchange■■■ Environmental Matters■■■ Constitutionality of State Statutes■■■ All Multi-District Litigation■■■ Class Actions

The Third Branch December 2011 3

National Security Cases Pose Special Challenges for Federal Judges

The extraordinary steps sometimes needed in court cases featuring national security issues are brought

into sharp focus by a newly published compilation of case-management challenges that confronted federal judges in 27 such cases.

“Evidence or arguments may be classified; witnesses or the jury may require special security measures; attorneys’ contacts with their clients may be diminished; other challenges may present themselves,” states the Federal Judicial Center’s (FJC) publication, National Security Case Studies: Special Case-Management Challenges.

The case studies, authored by the FJC’s Robert Timothy Reagan, detail how judges met such challenges. The infor-mation is based on a review of case files and interviews with about 60 district and appellate judges. The publication is posted on the FJC’s website, at: http://www.fjc.gov/public/pdf.nsf/lookup/TS111114.pdf/$file/TS111114.pdf.

“An issue-by-issue summary of what was learned in the case studies will be published soon,” Reagan said. “The

purpose is to offer a resource for judges facing these challenges to learn from their colleagues’ experience.”

The latest compilation is the fourth edition of Reagan’s findings. It includes newly added case studies, and updates all those he wrote about previously.

The challenge of dealing with foreign witnesses and witness security confronted Judge Gerald B. Lee (E.D. Va.) when he presided over the 2005 case of Ahmed Omar Abu Ali, convicted of plotting to kill President George W. Bush and aiding Al-Qaeda.

Abu Ali, an American citizen, was arrested in Saudi Arabia by officers of that nation’s counter-terrorism agency, Mabahith. He argued that his confession was inadmissible as evidence against him

because he was tortured while held in Saudi Arabia.

“To decide whether Abu Ali’s confession should be suppressed, Judge Lee arranged for seven days of video depositions of Mabahith officers in Saudi Arabia,” the FJC publication said. “Because the identities of Mabahith officers are secret, the Saudi government would not permit them to come to the United States to testify. There also was the risk that dangerous groups in Saudi Arabia would object to the officers’ cooperation with an American prosecution.”

The judge’s solution was, to say the least, imaginative. “Judge Lee sent to Saudi Arabia two prosecutors, two defense attorneys, a camera operator, and an interpreter. A live video feed was established between Saudi Arabia and the United States, and the judge, additional counsel for both sides, and the court reporter were in Alexandria (Va.). The video image was constructed as a split screen with the defendant on one side and the witness on the other, so that the defendant could see the witness and the witness could see the defendant,” the case study said.

A subsequent suppression hearing included portions of the depositions, in addition to live testimony from various other witnesses. The judge ruled that Abu Ali’s confession was admissible as evidence, but allowed his lawyers to argue to the jury that it had been coerced. The split-screen video deposition evidence was played to the jury as well.

The Mabahith officers had used pseudonyms when they testified. In court, the judge, the attorneys, the defendant, and the jury could see the officers’ images, but the public had access only to the audio portions of the depositions.

Judge John R. Tunheim (D. Minn.) had to wrestle with the challenge of classified

“National security cases often pose unusual

and challenging case-management issues. . .”

Introduction to National Security Case Studies

Continued on page 12


OSCAROSCAR More Popular Than Ever

In fiscal year 2011, more federal judges, law students, and law school alumni participated in the On-line System for

Clerkship Application and Review than ever before in OSCAR’s seven-year history.

The 1,564 circuit, district, magistrate, and bankruptcy judges who participate in OSCAR in 2011 represent 69 percent of all federal judges. That’s a 4 percent increase in the number of OSCAR-partici-pating judges since 2010 and a substantial increase from the 388 judges who initially signed-on to OSCAR in 2005, when it was still a local court initiative. In 2011, the national program gained 117 new judges, 56 of whom were newly appointed judges.

Most participating judges accept on-line applications; only 19 percent request paper applications. Judges vary in how they use OSCAR. Some use it just to post positions, but only accept paper applications. Others not only post positions on-line, but also screen applica-tions electronically.

Since 2005, the number of applicants in OSCAR has increased 27-fold. In 2011, the number of applicants increased 8 percent, growing to 10,327 over the 9,570 applicants in 2010. A part of that increase may be due to the addition, beginning in 2010, of staff attorney offices offering positions on OSCAR. This year the number of staff attorney offices with OSCAR accounts expanded to 12, up from 9 last year. A greater proportion of law school alumni submit applications for staff attorney positions. Of the 2,531 applica-tions received for staff attorney positions, 66 percent were from law school alumni, up from 61 percent in 2010.

Applicants submitted slightly fewer total applications in 2011, dropping

2011: 1,123 in 2010 and 1,048 in 2011. But fewer jobs did not seem to affect the number of applications per applicant. Sixty-eight percent of all applicants submit 25 or fewer applications. Eighty-two percent submitted 50 or fewer. In 2010, 80 percent of all applicants submitted 50 or fewer applications. This still represents a considerable investment of time and

Judge Participation In OSCAR

2011

2010

2009

2008

2007

2006

2005

0 200 400 600 800 1,000 1,200 1,400 1,600 1,800

OSCAR 2005-2011 Applications

0

50,000

100,000

150,000

200,000

250,000

300,000

350,000

400,000

450,000

2005 2006 2007 2008 2009 2010 2011

Continued on page 6

roughly 4 percent from 382,828 in 2010 to 366,389 in 2011. A significant number of applications are received in OSCAR from law school alumni. Over the last three years, alumni applicants have repre-sented 52 percent of the total applicants in 2009, 50 percent in 2010, and 56 percent in 2011.

There were fewer available positions for which applicants might apply in FY


Act Clarifies Venue and Jurisdiction Issues■■■ Clarify that district courts do not have diversity jurisdiction over a claim between a citizen and a permanent resident alien living in that same state;

■■■ More clearly define “citizenship” for foreign corporations and domestic corporations doing business abroad, as well as for direct actions against insurance companies;

■■■ Codify current practice that all defendants must join in or consent to removal in order for the action to be removed to federal court;

■■■ Clarify that each defendant has 30 days after service to remove a case to federal court, while allowing earlier-served defendants to consent to that removal; and

■■■ Ensure that, when a federal question claim is removed along with state law claims that are not within the supplemental jurisdiction of the district court or are otherwise non-removable by statute, the federal question claim will proceed in federal court and such state law claims will be remanded to state court.

In the venue and transfer section, the Jurisdiction and Venue Clarification Act will:

■■■ Define venue and codify the scope of venue provisions;

■■■ Create a unified approach to venue in both diversity and federal question cases, while essentially maintaining current venue standards;

■■■ Eliminate the outdated “local action” rule, which restricts where certain actions involving real property can be brought;

■■■ Clarify “residence” for venue purposes;■■■ Provide that unincorporated associations are treated the same as corporations for venue purposes; and

■■■ Clarify the application of venue for persons residing outside of the United States.

After many years of study, the 112th Congress has passed legislation that will bring

clarity to jurisdiction and venue issues, reducing wasteful litigation. The President signed the bill into law as Public Law 112-63.

In the 1990s, the Judicial Conference Committee on Federal-State Jurisdiction began to identify recurring problems encountered by litigants and judges in applying certain jurisdictional and venue statutes. In consultation with law professors, and after study of the American Law Institute’s Federal Judicial Code Revision Project, the Committee proposed solutions to these areas of confusion. The Judicial Conference endorsed those solutions over the course of several Conference sessions.

H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act of 2011, had bipartisan support in both Houses. The House version of the bill was introduced by Judiciary Committee Chair Lamar Smith (R-TX), along with Representatives Howard Coble (R-NC), John Conyers, Jr. (D-MI), and Hank Johnson (D-GA). The Senate version was introduced by Senators Amy Klobuchar (D-MN), Patrick Leahy (D-VT), and Jeff Sessions (R-AL.) The House bill, H.R. 394, proceeding as the legislative vehicle, ultimately was cleared by unanimous consent by both chambers.

In the Act’s jurisdictional section are provisions that will:

The Federal Courts Jurisdiction and Venue

Clarification Act of 2011 had bipartisan support in

both Houses.

2012 Law Clerk Hiring Plan Dates AnnouncedAs The Third Branch went to print, the

OSCAR Working Group announced the

2012 Law Clerk Hiring Plan dates:

Tuesday, September 4, 2012 (12 Noon

EDT)—First date when applications

may be received from third-year law

school applicants.

Friday, September 7, 2012 (12 Noon

EDT)—First date and time when judges

may contact third-year law school

applicants to schedule interviews.

Thursday, September 13, 2012 (10 am

EDT)—First date and time to interview

and make offers.

“After considering several options and

hearing from law school representatives,

the judges on the OSCAR Working Group

unanimously decided to maintain the

September schedule for 2012,” said Judge

Nicholas G. Garaufis (E.D. NY), chair of the

OSCAR Working Group. “It affords judges

and third-year students the most flexi-

bility in submitting applications, arranging

interviews, and thoughtfully making

clerkship offers. We will survey all OSCAR

participating judges after the 2012 cycle

to obtain their views on setting future

hiring schedules.”

The hiring plan is designed for all federal

judges, with the exception of Supreme

Court justices. Under the plan, the formal

hiring period for law clerks is in the fall of

the third year of law school. The plan does

not cover applicants who have graduated

from law school. Offers for clerkship

positions may be made as soon as inter-

views are permitted under the plan.

The OSCAR website provides a listing of

judges who participate in the system and

their application methods.

In 1993, the Judicial Conference recom-

mended a starting date for law clerk inter-

views, partly in response to letters from 69

law school deans who expressed concerns

with the early and irregular scheduling of

clerkship interviews. The law clerk hiring plan

brought more order to the hiring process.


effort. In OSCAR, applicants must build each application individually; the program does not allow batching of applications.

This year, to help law school admin-istrators better assist their students in making full use of OSCAR, the Judiciary held a one-day training session attended by representatives from 50 law schools. This training session educated partici-pants in the Judiciary ’s law clerk hiring

Survey Assesses Courts’ Emergency Planning

It’s Twenty Questions, but it’s no parlor game. In fact, the questions couldn’t be more serious. Court executives,

federal public defenders, chief probation and pretrial officers, and clerks of court are being surveyed on the status of their unit’s emergency preparedness program. The information is being collected by the Judicial Conference Committee on Judicial Security to better assess the Judiciary’s preparedness in the event of a natural or man-made emergency or disaster and to identify areas where further emphasis may be needed. The goal is for each court to have in place a plan for the evacuation and continued operation of the court in the event of a disaster or other interruption.

Among the survey questions: the status of a court, unit, or office’s Conti-nuity of Operations Plan (COOP), who is covered by the COOP, the type of training or exercises that have been held to test the COOP, if telework guidance has been provided for employees in the event of an emergency, whether the Judiciary’s Emergency Notification System is integrated into the plan, and so on.

By early December, 84 districts had responded to the survey. Of those districts, all had completed a continuity plan or had one in development. Over half of the districts responding to the survey also

had tested their continuity plan. Of the responding courts, nearly all also had occupant emergency plans (OEP) and had conducted training exercises.

Thirteen courts of appeals responded to the survey. Eleven courts of appeals reported they had a completed continuity plan. The remaining two courts of appeal are developing continuity plans. Every court of appeal had an OEP.

While teleworking is not universally embraced for the daily functions of a court, nearly all courts responding to the survey have a plan in place to implement teleworking in the event of a man-made or natural disaster affecting the workplace.

“Under the Judiciary’s continuity management program, each court has a responsibility to assess the risk to the physical facilities and information systems and safeguard its employees as they support the work of the courts in an emergency,” said William Lehman, Chief of the Judiciary Emergency Preparedness Office. “Updating COOP plans, and preparing for and conducting exercises to test the plans are key to that emergency preparation.”

As courts evaluate their COOPs, the experiences of eight midwest court districts that tested their plans in the 2011 National Level Exercise (see The Third

Branch, June 2011, “Earthquake Scenario Test Courts’ Response.”) offer tips on planning and operations. The complete list of lessons-learned is available on the Judiciary’s J-net, under Emergency Preparedness. If these best practices aren’t part of your unit’s COOP plan, now is the time to add them.

■■■ Prioritize essential functions now. ■■■ Plan how employees will notify super-visors of their whereabouts, add maps and directions to relocation sites, and train staff on responsibilities in a disaster.

■■■ Create phone trees to contact staff, have staff update InfoWeb information regularly, and include emergency contact information on cells phones of all Emergency Relocation Group members.

■■■ Ensure that the local offices of the U.S. Marshals Service, Federal Defenders, U.S. Trustees and General Services Administration are integrated into your COOP; and get to know your local emergency responders, including Federal Emergency Management Agency, law enforcement, and disaster recovery planners.

■■■ Get an out-of-state area code for employees to call if local service is

practices/policies; provided on-line demonstrations of the system; and delivered train-the-trainer tools for the laws schools to assist their applicants and faculty recommenders. In panel discus-sions, law school participants shared with their colleagues their own best practices for using OSCAR.

Increased training also has been provided to the courts, along with additional on-line tools, such as a desktop reference guide. As a result, calls to the OSCAR Help Desk dropped 30

percent in 2011—which allowed for a reduction in staffing.

In late 2010, the original Ad Hoc Committee of the Federal Law Clerk Hiring Plan disbanded, and the OSCAR Working Group assumed the responsi-bility of maintaining the plan and setting the dates. The OSCAR Working Group met in December to discuss setting the schedule related to interviewing and hiring law clerks. (See page 5.) For 2012, a redesign of the OSCAR website is in the works.

OSCAR More Popular Than Ever continued from page 4

Continued on page 12


Revised Schedule For Bankruptcy Records

A newly revised schedule for the archiving and disposition of bankruptcy records is

being implemented. The schedule covers non-electronic

bankruptcy case files and is the end result of a joint effort by the National Archives and Records Administration (NARA), the Judicial Conference Committee on Court Administration and Case Management, and historians, that began in March 2009. The Conference approved the revised schedule at its September 2011 meeting.

Under the new schedule:■■■ All bankruptcy dockets and opinions are permanent files.

■■■ The transfer period for permanent cases is reduced from its present 25-year retention period to 15 years after the close of the case.

■■■ The disposition period for temporary cases and temporary adversary proceedings files is reduced from the present 20-year retention period to 15-years after the close of the case.

■■■ Chapter 12, Family Farmer and Fisherman cases, as well as all cases dated 1940 or earlier, will now be retained permanently.

■■■ Cases filed under the Bankruptcy Acts of 1800, 1841, and 1867, and cases filed under certain sub-chapters of the Bankruptcy Acts of 1898 and 1978 will remain permanent.

Court officials retain the ability to designate any case or adversary proceeding files as historic, based on the court’s judicial perspective, and those cases will be retained and stored. Historically designated cases might involve a lawyer, litigant, or witness of historical importance; an issue of historical interest; a matter of national interest separate from the issues in the litigation; or have received substantial media attention at the time.

In addition, approximately 2.5 percent of all temporary cases retired by each district each year, will be randomly selected and reclassified as permanent by NARA, preserving a sample of bankruptcy cases nationwide.

The bankruptcy records schedule is the latest to be revised. In spring 2011, the Judiciary updated its records disposal schedule for civil cases. (See “Making Room, Saving History,” The Third Branch, May 2011.) The implementation of the new schedules will make case files easier for the public to identify and locate.

There are an estimated 1.1 million boxes of bankruptcy cases stored at the Federal Records Centers (FRC). NARA is required to

charge the Judiciary a fee for storage, and last year storage cost the Judiciary over $6.2 million. The new records schedule will allow the FRC to begin processing the records, preserving and transferring permanent cases, and disposing of temporary cases, which will save the Judiciary a minimum of $2 million annually.

Court officials retain the ability to designate any case

or adversary proceeding files as historic, based on the court’s judicial perspective.

above the House bill and $36 million above the Senate bill funding levels.

“The funding level we received in the omnibus bill, while a modest increase above fiscal year 2011, represents a significant achievement. It is clear that Congress again made the Judiciary a funding priority,” said Administrative Office Director, Judge Thomas Hogan. “The credit for this success goes to Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, her colleagues on the Committee, judges involved in our congressional outreach efforts, and staff here at the AO.”

The omnibus bill funds the courts’ Salaries and Expenses account at $5.02 billion, slightly above the fiscal year 2011 level, and $224 million and $45 million above the House and Senate bills, respec-tively. The bill provides full funding for the Defender Services, Court Security, and Fees of Jurors accounts based on revised requirements for those accounts.

While fiscal year 2012 funding levels are relatively positive, they reflect two prior years of near-hard freezes in funding. Cost-containment initiatives undertaken by the Judiciary have mitigated, in part, the potentially catastrophic effect of low funding levels.

“It is critical that these efforts continue, especially as Congress is likely to further constrain spending in FY 2013,” Hogan cautioned. “As Congress debates deficit reduction alternatives over the coming year, we will continue to emphasize the resource needs of the Judiciary and the impact of budget cuts on federal court operations.”

FY2012 Funding Approvedcontinued from page 1

The Consolidated Appropriations Act of 2012 provides full-year funding

for the nine unfinished fiscal year 2012

appropriations bills.


Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.Washington, D.C. 20544

(202) 502-2600

Visit our Internet site at www.uscourts.gov

DIRECTORJudge Thomas F. Hogan

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONOmniStudio, Inc.

CONTRIBUTORSDick Carelli, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to

[email protected].

Up-to-date information on judicial vacancies is available at

http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx

December Judicial Milestones

JUDICIAL BOXSCOrE

As of December 1, 2011

Courts of Appeals Vacancies ..................................15 Nominees .................................10

District Courts Vacancies ..................................67 Nominees .................................34

Court of International Trade Vacancies .................................... 2 Nominees ................................... 0

Courts with “Judicial Emergencies” .........30 This month, Milestones exceeded the

available space. Please visit the Third Branch on-line at www.uscourts.gov/news/TheThirdBranch.aspx to read the complete Milestones for December.

Appointed: Stephen A. Higginson, as a U.S. Court of Appeals Judge, U.S. Court of Appeals for the Fifth Circuit, November 2.

Appointed: Richard G. Andrews, as a U.S. District Judge, U.S. District Court for the District of Delaware, November 8.

Appointed: U.S. Magistrate Judge Cathy Bissoon, as a U.S. District Judge, U.S. District Court for the Western District of Pennsylvania, October 20.

Appointed: Robert D. Mariani, as a U.S. District Judge, U.S. District Court for the Middle District of Pennsylvania, November 10.

Appointed: Robert N. Scola, Jr., as a U.S. District Judge, U.S. District Court for the Southern District of Florida, October 25.

Appointed: U.S. Magistrate Judge Scott W. Skavdahl, as a U.S. District Judge, U.S. District Court for the District of Wyoming, November 8.

Appointed: Neil W. Bason, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, October 24.

Appointed: Julia W. Brand, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, October 24.

Appointed: Thomas M. Renn, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of Oregon, October 28.

Appointed: Alan C. Stout, as a U.S. Bankruptcy Judge, U. S. Bankruptcy Court for the Western District of Kentucky, October 25.

Appointed: Gary R. Brown, as a U.S. Magistrate Judge, U.S. District Court for the Eastern District of New York, November 8.

Appointed: David R. Grand, as a U.S. Magistrate Judge, U.S. District Court for the Eastern District of Michigan, November 1.

Appointed: Lanny King, as a U.S. Magistrate Judge, U.S. District Court for the Western District of Kentucky, November 14.

Elevated: U.S. District Judge James E. Gritzner, to Chief Judge, U.S. District Court for the Southern District of Iowa, succeeding U.S. District Court Judge Robert W. Pratt, November 1.

Elevated: U.S. District Judge Joseph N. Laplante to Chief Judge, U.S. District Court for the District of New Hampshire, succeeding U.S. District Judge Steven J. McAuliffe, November 1.

Elevated: U.S. District Judge Joseph H. McKinley, Jr., to Chief Judge, U.S. District Court for the Western District of Kentucky, succeeding U.S. District Judge Thomas B. Russell, November 15.

Senior Status: U.S. District Judge Henry H. Kennedy, Jr., U.S. District Court for the District of Columbia, November 18.

Retired: U.S. Bankruptcy Judge George R. Hodges, U.S. Bankruptcy Court for the Western District of North Carolina, November 17.

Retired: U.S. Magistrate Judge Jacob P. Hart, U.S. District Court for the Eastern District of Pennsylvania, November 16.

Retired: U.S. Magistrate Judge Jay R. Irwin, U.S. District Court for the District of Arizona, November 18.


texting in a chat becomes part of their site visit.

“If a paralegal is having trouble in the electronic case files system, they can click and have a chat with a representative who will answer their question,” said Meyer. “You don’t need someone assigned specifi-cally to the chat live. We already have a staff member on call. A window appears on their screen notifying them of a chat request.” The court’s goal is to respond to a chat request within 30 seconds.

Meyer sent a team to the Arizona Bankruptcy Court to see how the chat line worked, and the team also culled infor-mation from state and county courts that used the software behind live chat.

Mary A. Schott, Bankruptcy Clerk of Court for the U.S. Bankruptcy Court for the District of Nevada, also looked to the Arizona and New Mexico bankruptcy courts for inspiration. Schott’s court will go live with an on-line chat option in mid-December.

“Our district is number one for per

capita filings in the country and at the top for foreclosures,” said Schott. “We have a lot of attorneys with procedural questions who’ve never handled a bankruptcy case before. We have a lot of pro se filers. We have so many people calling in, live chat is another way for us to handle the requests for information.”

the field of bankruptcy law and have questions as inexperienced practitioners. They said it was more convenient than waiting on the phone for someone to answer a question—they could work while they waited for a reply.”

Last month, the Arizona bankruptcy court averaged 12 live chats per day, with a high per day of 25. The average chat lasts nearly nine minutes.

Karth also noted that many users like that a chat reply can include a direct link to the location of information on the court’s website. “One advantage live chat offers is the ability to quickly cut and paste webpage links in response to questions, rather than talk a caller through various bankruptcy issues over the phone,” he said. Live chat visitors also can refer back to the written response and avoid call backs.

According to Meyer, the New Mexico bankruptcy chat line is in fairly regular use. Law offices ask about filings. Pro se filers get help on bankruptcy chapters and filing. At the end of the conversation, a transcript of the chat is retained and the system keeps a log of the chats. “We can go back and check information,” said Meyer. The application itself is inexpensive, costing $75 per month for use by three operators.

More bankruptcy courts are consid-ering adding live chat to their websites. “We’re looking at how it potentially could improve our customer service,” said Bankruptcy Clerk of Court Ken Gardner in the Northern District of Illinois. And in a recently conducted survey of attorneys in the Central District of California, the bankruptcy court found that 73 percent of the respondents wanted an on-line chat feature for Case Management/Electronic Case Files system assistance.

“Live chat is a nice tool,” said Meyer. “While it’s not the answer to every question, it does help us serve the public, especially a generation that is used to digital and mobile applications. It’s one way we can increase service to the public.”

General Counsel Burchill Retires

William (Bill) R. Burchill, Jr., Associate Director and General Counsel for the

Administrative Office of the U.S. Courts, retired this month after 38 years of service to the federal Judiciary. The Judicial Conference passed a resolution honoring Burchill, who was the third General Counsel in the AO’s history. He was appointed by former AO Director William E. Foley in 1985.

The Conference resolution, which acknowledged Burchill’s “trusted voice” and “sound judgment” read, in part:

“During his tenure, Mr. Burchill has developed a wealth of knowledge on

Chat Live Now! continued from page 1

the full gamut of legal issues facing the courts of the United States, and he has provided wise counsel to individuals at all levels of the Judiciary. . . . He is respected nationwide for his expertise, his integrity, and his dedication to the mission of the federal courts.”

William (Bill) R. Burchill, Jr.

The hours the Nevada bankruptcy court’s live chat is available will be posted on the website. During off hours, visitors will be unable to click on the live chat icon. That eliminates what might be a frustrating wait for a response when the service is unavailable.

“I was surprised at the number of attorneys who use our live chat to ask questions,” said Karth. “This has been particularly true in the past two years as many real estate lawyers expand into

CHAT WITHUS LIVE!

ONLINE GO

Visitors to the websites of courts offering live chat can click on “Go” to begin a chat session.


INtErvIEw

National Conference Supports Interests of Federal Trial Judges

Judge John R. Tunheim chairs the National Conference of Federal Trial Judges (NCFTJ), within the American Bar Association Judicial Division. He was confirmed as a U.S. district judge in 1995, sitting in the District of Minnesota. Prior to joining the

bench, Tunheim served 10 years as Minnesota’s Chief Deputy Attorney General and as Minnesota Solicitor General. He was one of the Founders and Chair of the Government and Public Sector Lawyers Division of the ABA. He is past-chair of the Judicial Conference Committee on Court Administration and Case Management.

Q: with a 3 percent increase in the number of civil and criminal trials in U.S. district courts in 2010, federal trial judges were busier than ever. But trials aren’t the whole story. Can you talk about another side of a federal trial judge’s work, such as mediation and arbitration?

A: The number of trials in U.S. district courts is edging up after what has seemed a long period of slow decline. In our efforts to become more efficient and cost-effective, many districts have adopted exceptional alternative dispute resolution initiatives. In particular, mag-istrate judges throughout the country have become very skilled in mediating disputes and settling cases. It is very important for every judge to recognize ways to make our process more efficient and less costly. Even with fewer trials than a decade ago, federal judges are busier than ever and we understand that each case is different and requires a smart response. In the future, making litigation much less costly and encour-aging a cost-effective way forward will continue to be high on the agenda of the federal Judiciary.

Q: A recent Judiciary summit meeting looked at ways the courts might cope with the current budget situation. How

are funding cuts affecting your members? How are they coping?

A: All judges are very concerned about the uncertain budget situation. Our state court colleagues have really been stressed over the past several years and it is difficult to watch the adjust-ments they have been forced to make. The Judicial Conference has taken very appropriate action to “tighten our belts” in anticipation of possible budget cuts. We will continue to work within the ABA and with the many organizations that support the federal courts to ensure that whatever cuts we sustain will do no long-term harm to the federal Judiciary. The organized bar will continue to be our best advocates.

Q: Judicial compensation has stag-nated in a worsening economic climate. How does the Judiciary continue to attract top candi-dates to the bench?

A: The American Bar Association has been one of our best and most stalwart supporters in the effort to improve compensation for judges. The leadership of the ABA will continue to help us in every possible way to achieve pay increases. The reality is, of course, that significant pay increases are unlikely in the near future. Fortunately, federal judgeships remain attractive to excellent

candidates. One of the initiatives of the NCFTJ has been to develop materials and programs to encourage talented lawyers to consider the possibility of seeking a federal judgeship. One of our partner organizations, Justice At Stake, has published an outstanding small publication called The Path to the Federal Bench that will be very helpful. In our programming this year, the NCFTJ will produce a program on federal judicial selection that we hope will encourage a better path forward for the confirmation process. We are very concerned that the well-documented difficulties in the confirmation process discourage strong candidates from seeking judgeships.

Q: the NCFtJ has an interest in promoting improvements in the administration of the jury sys-tem. Is it difficult to get jurors to serve? what improvements might be needed in this area?

A: I don’t think that it has reached the point where I would consider it difficult to get jurors to serve. Jurors may still

Judge John R. Tunheim


sigh and complain when they receive a summons, but those who are selected to serve are highly complimentary of the process and the respect they receive. Juror utilization is the key. The more jurors who are called in who receive the opportunity to serve on a jury, the better our process is. We also need to be friendly, attentive, and helpful, and be constantly aware that we are imposing on jurors’ time, on their busy lives. Delays need to be kept to an absolute minimum. I would also like to see further increases in juror compen-sation, but that likely will not be on Congress’ agenda in the near future.

Q: technology plays an increas-ing role in the modern court-room. what does that mean for both the courts and law firms? Is there a way for courts to encourage a better tech inter-face with law firms?

A: Technology in our courtrooms not only saves time and costs, but jurors have come to expect the experience of seeing an exhibit on their screens as soon as the exhibit is admitted. Today ’s juror learns from computer screens and television, and replicating that experience in the courtroom adds so much to jurors’ ability to comprehend and understand evidence. Technology also adds signifi-cantly to attorneys’ ability to clearly present their cases. It is especially

helpful for organization of many of our document-laden complex civil and criminal trials. What lawyers want is technology that works and as courts, we need to take advantage of the latest technology and we need to provide an easy interface with lawyer ’s laptops. I am especially excited about the many planned technological leaps in the Next Generation Case Management/Electronic Case Files System project which is in progress. The many new case management tools planned for the new system will represent the use of technology at its best.

Q: Newspaper articles increasingly talk about “mistrial by Google,” with jurors viewing on-line information about defendants, witnesses and criminal proce-dures. Is this a concern for fed-eral trial judges and what can be done about the problem?

A: The ability that jurors have today to investigate and view information on-line is a significant concern for all judges who preside over jury trials. I hope it does not affect the willingness of parties to participate in jury trials because I know that many judges, including me, believe that presiding over jury trials is one of the most interesting parts of our jobs. The best antidote is to continually remind jurors from start to finish of trials that they are not to conduct any research about the case, the defen-dants, witnesses, or any parties. Further, it is important to remind them to inform the court if they are aware that a fellow juror is doing outside research. I reassure them that they will have all the information they need to make a decision and it would violate an individ-ual’s right to a fair trial if they learn any information outside the courtroom. For jurors who are curious, I tell them that

they can research all they want after the trial is complete and their verdict is accepted. Fortunately, I have not had a problem yet with “mistrial by Google.”

Q: Federal judges have once again come under attack for their judicial decisions. Is the NCFtJ concerned about these attacks? what is the best way to respond to these attacks and to ensure judicial independence?

A: Attacks on judicial decisions are as old as the Republic and likely will continue. It comes with the territory and, while tempting, it is best not to overreact. We need to be ever vigilant to make sure that the attacks do not undermine respect for the Judiciary. But judges surely are not in the best position to respond. That is why we really need organizations like the American Bar Association and so many other organizations that are concerned with judicial independence. The NCFTJ is the best way for federal judges to participate with the bar and to show our appreciation for the strong support that we receive.

Q: what are your priorities as chair of the tCFtJ?

A: Our most important priority is increasing the membership of federal judges in the ABA. I have always believed that it is vitally important for judges to work closely with the organized bar, and it is especially important today with funding challenges facing the Judiciary. Without question, the organized bar is our strongest support when the Judiciary is under attack. The NCFTJ also works closely with the ABA’s Congressional advocacy. We will also continue to develop inter-esting and lively programming for judges and lawyers.

In our efforts to become more efficient and cost-

effective, many districts have adopted exceptional alternative dispute

resolution initiatives.

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evidence used in the 2009 prosecution of Mohamed Abdullah Warsame, a Canadian citizen accused of providing material support to Al-Qaeda.

Because the case against Warsame relied on classified evidence, his attorney and Tunheim’s staff all obtained security clearances. Early in the case, Warsame’s defense team had to review the classified material in a secure room at the courthouse, which included a suitable safe. “The attorneys had to prepare any documents based on or referring to classified material in the secure room. The court reporter, who had a security clearance, also had to work on transcripts containing classified information in this room and store computer equipment

she used for such transcripts in the safe. Tunheim could keep classified materials in a safe in his chambers office,” the case study said.

Government attorneys declassified some materials, and for other classified materials, they proposed substitutions/modifications to the evidence intended to excise classified information while retaining evidentiary value. Tunheim compared all proposed substitutions with their corresponding originals.

The publication noted that a crucial element in the courts’ handling of classified information are classified information security officers who are detailed to the courts by the Department of Justice’s Litigation Security Group. They help the courts store and handle classified information, and facilitate security clearances for court staff and attorneys.

National Security Cases Pose Special Challenges for Federal Judgescontinued from page 3

down, include phone and laptop chargers in Go-bags, and use alternate Internet e-mail when phone and the Judiciary’s Data Communications Network are inoperable.

■■■ Review with jurors what they should do in an emergency; add vendor’s infor-mation to COOP plans.

■■■ In the event of an evacuation, determine how courtrooms will be secured; make decisions on oral arguments, closure of court, filing extensions, etc. as early as possible and announce decisions to the Bar, the public, and employees. Maximize use of all available media.

■■■ Conduct training on your COOP and update it continuously.

Survey Assesses Courts’ Emergency Planningcontinued from page 6

2011-12 Dec

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