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November 2011

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An Interview With FJC Director Judge Jeremy Fogel


Judge Jeremy Fogel

Judge Jeremy Fogel

Judge Jeremy Fogel was named Director of the Federal Judicial Center in July 2011. He was appointed to the U.S. District Court for the Northern District of California in 1998, prior to which he served nearly 17 years in the California state courts. He has served as an FJC faculty member since 2001, and as a lecturer at Stanford Law School since 2003. He received an A.B. degree from Stanford University in 1971 and a J.D. degree from Harvard Law School in 1974.

You’re trading the bench and legal opinions, at least for the near term, for education and research. What prompted the change?

I was a trial judge in the state courts before I came on the district court bench, for a combined period of exactly 30 years. And I’ve always been interested in judicial education, in the administrative aspects of the court system, and in international affairs. The FJC offers a real opportunity to synthesize what I’ve learned without being confined by the details of a particular case. That really appealed to me.

In your Harvard Law School years, you worked at a crisis intervention center and went on, after graduation, to found the Mental Health Advocacy Project in San Jose. What about this work interested you—and did your experiences influence you as a judge?

The thing that has always struck me about folks who are dealing with emotional problems is that they’re extraordinarily vulnerable. Their voice is not easily heard because they are vulnerable and because they’re often acting out. This is a population that just has a tough time. But there’s a human being inside those behaviors. Something about the fact that they were in pain and were not being heard touched me. It always has.

The main thing that this taught me as a judge is how to listen. This is what my Stanford Law School class, the Psychology of Litigation, is all about. Law students typically are taught to issue spot—here is the case, what are the legal issues in the case? That’s a core competency. But there’s always more going on. Litigation involves disputes between people, and people sometimes have emotional agendas that drive their behaviors, often unconsciously. If you’re only looking at the facts and the applicable law, you’re going to miss that. Why would someone want to litigate a case that’s going to cost more to litigate than they could ever win? Yet people do this all the time. My belief is that if you are a good listener and you draw people out, most of the time you can figure out what’s going on. I learned that from working with people with mental disabilities.

I also was a family law judge for several years. You’d hear stories about people fighting over pots and pans, or about the dog, or the piano. These are people who in other circumstances are perfectly normal people, regular members of the community, but they get into a contested divorce or child custody case and they temporarily lose their minds. It’s not about the dog. The dog becomes a symbol of a power struggle or feelings of hurt, anger, or victimization, and if you don’t know that—if you’re just trying to see what legal principle governs who gets the dog—that completely misses what the people actually are fighting about.

You’ve already had considerable experience in judicial education. Can you tell us about that?

I started out teaching ethics in 1985. That expanded into a more general interest in the judicial profession—what are our core values, what are our goals, what are the qualities of a good judge, what is judicial excellence? The more I worked with judges, the more I thought about those kinds of things. When I got into the federal system, I started out working with the FJC on alternative dispute resolution and mediation training. Then I spent quite a bit of time teaching case management. The international work I’ve done has been almost exclusively about case management, and about combining case management and alternative dispute resolution as a way of reducing caseloads.

And, in your opinion, are there good ways—and better ways—to train and educate judges and court staff?

The research on adult learning tells us that adults learn best by having their minds engaged and by interacting. So if we had unlimited resources, you’d want a lot of face-to-face interactive courses—particularly for judges—where the participants can compare notes and talk to each other during breaks and meals. That’s a great way to learn.

But there are certain topics where a really excellent lecturer can do a very good job. And because we aren’t living in an era of unlimited resources, we have to figure out, of all of the programs that the FJC provides, which ones really do have to be done in person, and which ones can be done differently—as a webinar, or through video streaming, or on a DVD. Are there ways we can use modern technology to conserve resources without compromising our core mission?

What is it we’re trying to make sure that people learn, and what’s the best way for them to learn it?

The entire Judicial Branch is emphasizing cost containment and strategies for operating with limited resources. How does this impact the Center?

The Center’s appropriation is likely to be reduced in about the same percentage as the rest of the Judiciary’s, so we’ll have to make some difficult choices. Still, I’m convinced that we will be able to provide essential services to the courts, and I think that those services will be even more valuable in this period of austerity— helping the courts to make the hard decisions and to function as efficiently as they can with limited resources. As we do this, we have to ask ourselves how we can deliver our services more economically. And my answer is that it depends on what you’re talking about. We can’t take something like new judge orientation and do it on a DVD. We already use video a lot, but getting judges together to talk with mentors and to each other is the core of the new judge orientation program. At the same time, there may be other things that we do that we could deliver in a different way. We can’t be rigid about it.

There are other contexts in which I think that we can spend a little and save a lot of money. The Center has begun the cataloguing of all our publications in digital form. Once that’s done, the next step is to have a user-friendly, interactive website that enables users to do searches that are relevant and quick. We have to invest time and money in developing both software and hardware. Hopefully, doing this will save us money elsewhere in the budget—in the cost of publishing paper books, or perhaps in the number of live seminars we offer. This is all a work in progress, but it seems to me that we need to have a very modern and assertive approach to using technology, because I think that is going to save us money and make our product better.

What do you have in mind for new educational programs for judges and court staff? Are there any topics/issues you’d particularly like to address?

I’ve already talked a little bit about one of my immediate goals, which is trying to figure out the best way to deliver each product that we have given the cost constraints that we face and are likely to continue to face. In terms of new programs, it’s a little early for me to be proposing things. But I know that one of my main interests throughout my career has been the judicial profession. People don’t become judges to make a lot of money, so what is it that attracts people to the bench? I think it’s something about the role judges play in our society, which is grounded very firmly in the Rule of Law. Judges are the gatekeepers. With that responsibility go a number of qualities that we want our judges to have. We obviously want them to be intelligent. We want them to be honest. We want them to have a temperament that is respectful of people and, at the same time, isn’t without backbone. Looking at that more systematically than we’ve done so far is an ongoing interest of mine. How can we judges be better at what we do? How can we be more aware of what we’re doing?

I should add that much of what I’ve just said applies equally to other court employees. People who work in clerk’s offices, probation and pretrial services, libraries, chambers, and elsewhere feel a sense of commitment and purpose that doesn’t exist in a lot of other places. How do we maintain that excellence and that culture, especially in a time of reduced budgets? How do we help highly motivated and talented professionals get even better? I think the Center has an important role to play here as well.

From what I can tell so far, there aren’t many substantive gaps in our educational programs. Obviously, I would like to know whether and how our constituency sees that differently. Another thing on my wish list is to have some sort of interactive, informal communication with judges and court staff around the country, so that if people have ideas they can send them to me, without the formality of sending a letter.

Research is a major portion of the Center’s mission. How does research benefit our court system?

Our research is one of the great contributions that the Center makes to the Judiciary. We do research at the request of the committees of the Judicial Conference and of Congress. Our statutory role is to be responsive to the direction we get from others, and we’ve got a really full plate. We have two major new initiatives: the patent pilot project and the cameras in the courtroom project. Overall, we have more than 40 research projects going on at the Center.

One of the things I love and respect most about the FJC is that it is trusted as a research entity. The research that we do is viewed as having integrity, as being non-partisan, as not having an agenda. That’s something I absolutely treasure and want to protect. I have a lot of respect for the researchers we have and the work that they do.

You also have a reputation as a jurist who readily handles tough patent cases. In light of the Judiciary’s current patent pilot program, is that a skill (or skills) that can be taught?

I think it is. Patent law is really interesting because in some ways, it’s judging like all other judging—you learn material and you apply it. But it’s also quite different in other ways.

One is that patent law, to an even greater extent than administrative, admiralty, or antitrust law, has its own nomenclature that it takes quite a while to learn.

But what makes it really hard is the technology. You can learn the nomenclature, you can know the statute really well, but if you get a patent case that involves something like the design of a computer chip, or biotech patents, you’re going to be completely dead in the water if you don’t have at least some grasp of the technology. You can say, well, I’ll hire an expert or I’ll listen to the experts and decide, but that doesn’t quite get you there. You don’t want to be delegating judicial decisions to an expert. And in order to understand the experts, you’re not going to go take graduate courses in organic chemistry or engineering. The process of becoming a somewhat confident patent judge takes a lot of time, and I think that’s why there’s an interest in exploring whether specialization in patent cases makes sense. That’s what we’re going to be studying.