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June 2009

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This article is in the news archives --- for current news go to the Third Branch News.


An Interview with Judge Barbara Lynn

Judge Barbara M. G. Lynn was appointed to the U.S. District Court for the Northern District of Texas in 2000. She has served as the chair of the Judicial Conference Committee on the Administration of the Bankruptcy System since 2007, and currently chairs the Judicial Division of the American Bar Association.

Q: The current recession has been called the worst since the Great Depression. What has been the impact on bankruptcy filings?

A: Immediately before the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), a huge number of filings occurred. So many debtors were apprehensive about the new statute, they wanted to file under the old statute. After BAPCPA took effect, filings declined dramatically. Since then, they have been increasing at a fairly steady pace, and recently that increase has been accelerating. I am assuming that that acceleration, from November 2007 to the most recent numbers at the end of March 2009, is attributable in significant part to the recession and the current economic climate.

Q: How are bankruptcy case filings affecting judicial workload?

A: The attitude of bankruptcy judges throughout the country is, “We will happily and energetically devote ourselves to whatever work is given to us.” Bankruptcy judges have been very willing to assist each other when workload is uneven. But much of that unevenness is being steadily eliminated around the country. By way of example, at the beginning of the recession, bankruptcy filings in the Dallas area were not increasing significantly. But that is now changing, and workload is up almost everywhere. There are certain parts of the country—I’ll take the Eastern District of Michigan, for example—where the workload of judges is fairly described as dire. They’re just working as hard as they can and many, many judges have offered to assist them.

Q: What actions or recommendations will the Committee on the Administration of the Bankruptcy System make to deal with the increased workload demands?

A: We have recommended new bankruptcy judgeships. I’m scheduled to testify soon before a subcommittee of the House Judiciary Committee. The Judicial Conference has approved a recommendation for nine additional permanent bankruptcy judgeships, the conversion of 22 temporary bankruptcy judgeships to permanent and the extension of one temporary judgeship. The Committee has also requested that the Conference consider four additional permanent judgeships and the extension of a second existing temporary judgeship.

We also are at the tail-end of the data collection for a new case weighting study, which is being conducted at our request by the Federal Judicial Center. The current case weights have been in effect since 1992.

This is a diary-based study, where bankruptcy judges keep track of the time they expend on their various activities. When all of that data is combined and tabulated, it tells us: for this kind of a case, it will take X number of hours. It allows us to figure out how much capacity judges have and whether we need new judges and if so, how many.

After BAPCPA was passed, we waited a while for work under the statute to settle down and for judges to gain experience with the statute. We started the case weighting study last year and it took a year to collect the data. In the fall, we will have analyzed the data, which I predict will result in the case weights changing.

I believe the case weighting study will be very revealing about the heavy workload of bankruptcy judges and it could have a significant impact on our long-term recommendations for bankruptcy judgeships.

Q: How are bankruptcy judgeship recommendations developed by the Judicial Conference?

A: It’s a multi-step process. Essentially, we operate on a two-year cycle. About half way through even-numbered years, we go to the circuits and ask the chief judges for recommendations for additional bankruptcy judgeship needs.

When we get the information from the circuits, we do an analysis based first, but not exclusively, on the numbers. We take the weighted filings per authorized judgeship in the district where the new bankruptcy judgeship is proposed. If those numbers are over 1,500 before we add a new judgeship, then ordinarily we would say we need a new judgeship. The 1,500 or more is capacity or hours; it’s not the number of cases filed.

We also look at on-the-ground information. For example, there may be a part of the district where there’s been substantial population growth, but there’s no resident judge. We might recommend a judgeship there because of geography, even though the numbers don’t quite reach 1,500.

If the circuit doesn’t ask for new judgeships, traditionally we do not move forward with new judgeships in that circuit. If a circuit requests a judgeship and the numbers don’t by themselves support it, then through the auspices of the Committee, bankruptcy judges and staff of the AO’s Bankruptcy Judges Division conduct an on-site survey. They meet with the law clerks, the clerk’s office, the local bankruptcy bar, panel trustees, U.S. trustees—really everyone who is a constituency of the bankruptcy court—to see how the court is working. A report is prepared for the Judgeship Subcommittee of our Committee, which I chair. After full consideration, the subcommittee makes a recommendation to the full Committee, which in turn makes a recommendation to the Judicial Conference.

We also conduct a continuing needs survey and analysis for the continuation of existing authorized judgeship positions. Sometimes these judgeships may not be filled when a judge retires or dies, but they are often kept open, unfilled, for future need. We send out inquiries about continuing need and additional judgeships needs on a regular basis so we will know what is happening in the courts and what the circuits perceive as the need for change.

Q: The Committee recently met to discuss long-range planning initiatives. Can you tell us what issues were discussed, and what might develop as a result?

A: We had a number of telephone meetings and solicited a good bit of information from various members of the bankruptcy community prior to our full-day, long-range planning meeting in the first week of June.

The significant issues we are working on are these: inter-court relations and court governance; allocation of administrative and judicial resources, including use of visiting and recalled judges and whether venue changes should be proposed to ease workload imbalances; technology; handling of pro se cases; and addressing the needs of court users, given changing demographics, which require attention to issues of translation, interpretation and cultural sensitivity. We also are looking at issues of appellate structure, which varies across the country. We are obtaining additional data and information in each of these areas, and expect to make concrete recommendations at our next meeting in January 2010.

Q: You also chair the ABA’s Judicial Division. What issues and programs are you focusing on during your term?

A: By way of background, let me explain that before I was chair of the Judicial Division, I was the chair of the National Conference of Federal Trial Judges (NCFTJ), a part of the Judicial Division. The NCFTJ is a unique entity, because it includes all non-administrative federal trial judges; i.e., bankruptcy, district, magistrate, U.S. Tax Court, Court of Federal Claims, and Court of International Trade judges. It was a wonderful experience and gave me a perspective on my bankruptcy work that has proven invaluable.

The Judicial Division has constituent judges of every type—federal trial judges, state trial judges, administrative law judges, specialized court judges, and appellate court judges. We also have a group of lawyers in the Judicial Division who are supportive of efforts on behalf of the judiciary. Issues of interest to judges may vary somewhat depending on what kinds of judges they are, but they have many interests of common concern. For example, all of our federal and state judges are very concerned about funding for judicial work. Many state judges run for election, and they worry about what they can—and should—say while running. All of us want to preserve our system of fair and impartial justice, and worry about proposed encroachments on our ability to do that.

This year, the Judicial Division has done work on cross-cultural issues and issues related to ethnic and racial bias in our courts. With Southern Methodist University’s Dedman School of Law, we recently sponsored a program addressing perceptions of bias among decision-makers; prosecutorial discretion and how it impacts the perception of racial and ethnic fairness in our courts; and issues of interpretation and cultural differences and how those might affect perceptions of bias. We identified a number of issues on which we believe we can make improvement in the short run, such as cultural diversity training; enhanced, expanded, and improved interpretation and translation services; and providing appropriate additional assistance to pro se litigants, particularly those whose cultural backgrounds do not prepare them on how to conduct themselves in court. That’s a fine and difficult line for a judge to address, but we think there are mechanisms within the court structure to serve that effort, and we encourage sharing of best practices between courts.

Another issue—and we’re doing a program on this at the ABA annual meeting in Chicago—is the relationship between the modern press and the courts. How people get news is different today. Most people get their news from the Internet and get a lot of information from bloggers. I believe that with a well run court proceeding, news is a very good thing for the courts, and we need to be creative about furnishing appropriate information where citizens can and will access it. When people learn how courts work, I believe they become more confident in their democracy.

The Judicial Division is also working to match first-year associates whose hiring opportunities have been deferred, with internship or externship positions for state and federal judges.

Both the Judicial Division and the Committee on the Administration of the Bankruptcy System advocate strenuously for diversity on the bench. The Judicial Division has engaged in substantial outreach efforts to achieve judicial diversity, and the Bankruptcy Committee is working with the Circuits and with the Judicial Resources Committee to assist courts in increasing the diversity of bankruptcy judges, clerks, and staff.

Q: How does the Judicial

Division of the ABA assist in educating the public and other branches of government about judges’ concerns?

A: The Judicial Division is a critically important part of the American Bar Association, and has spurred many efforts which resulted in the ABA being a stellar advocate for the judiciary, in state legislatures and in the executive branches of the states, as well as in Congress and in the White House. The ABA has worked closely with the Judicial Division in advocating against measures which would threaten judicial independence, and in supporting proposed legislation to achieve pay restoration and increases. When there are threats to the integrity of the judicial system, we have spearheaded and coordinated resistance to those efforts. We also have provided educational materials to our members, made speaking and training programs available to them, and facilitated, through our publications and judicial outreach activities, various opportunities for our members to express their views on the essential aspects of what makes our judiciary a model for the world. In short, the Judicial Division, because of its diverse and strong membership, is a respected and valued part of the largest professional organization of lawyers and judges and that gives judges a wonderful opportunity to speak with a very loud voice on issues of significance and concern to them as they serve the judicial system.