December 2011

 

National Conference Supports Judicial Interest

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.

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?

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, magistrate 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 encouraging a cost-effective way forward will continue to be high on the agenda of the federal Judiciary.

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?

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 adjustments 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.

Judicial compensation has stagnated in a worsening economic climate. How does the Judiciary continue to attract top candidates to the bench?

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.

The NCFTJ has an interest in promoting improvements in the administration of the jury system. Is it difficult to get jurors to serve? What improvements might be needed in this area?

I don't think that it has reached the point where I would consider it difficult to get jurors to serve. Jurors may still 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 compensation, but that likely will not be on Congress' agenda in the near future.

Technology plays an increasing role in the modern courtroom. What does that mean for both the courts and law firms? Is there a way for courts to encourage a better tech interface with law firms?

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 significantly 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.

Newspaper articles increasingly talk about "mistrial by Google," with jurors viewing on-line information about defendants, witnesses and criminal procedures. Is this a concern for federal trial judges and what can be done about the problem?

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 defendants, 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 individual'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."

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?

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.

What are your priorities as chair of the TCFTJ?

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 interesting and lively programming for judges and lawyers.