Page 1



A Dramatic Call for Improved Civic Education

Americans are in dire need of being re-educated about how their government works because their lack of knowledge not only threatens judicial independence but the republic itself, retiring Supreme Court Justice David Souter believes. “If a populace has absolutely no conception of the difference between what the executive, the legislators, and the judiciary is doing, then it makes no sense to argue to that populace that, in fact, the judiciary should be treated any differently from those regularly elected branches,” he told a Georgetown University Law Center audience recently. Speaking at a gathering of the Sandra Day O’Connor Project on the State of the Judiciary, Souter cited surveys showing that most Americans cannot name the three branches of government. Defending judicial independence “makes absolutely no sense without a realization of the separation of power,” he said. “To say you shouldn’t call for the abolition of judicial independence or for the


Newsletter of the Federal Courts

Vol. 41 Number 6 June 2009

Time Changes Coming to Federal Rules When is 10 days really 14 days? For the federal courts, when weekends or a holiday intervenes. And are business days and court days the same thing? Sometimes. And yes, that is confusing for litigants, lawyers, court staff, and even judges. But as of December 1, 2009, the confusion will clear because

Supreme Court Justice David Souter

impeachment of judges when they stick up for individual rights or go against the popular will, that argument makes absolutely no sense at all. Without a conception of separation, without a conception of limitation, judicial independence is meaningless.” He noted that the O’Connor Project initially focused on “how to stick up for the judiciary” when it was formed three years ago, spurred by a growing frequency of attacks. However, he said, “we learned that the real problem in the United States was not the attacks on judicial independence. That was, in fact, symptomatic. We learned that the real See Souter on page 6

Easing Case Congestion with 3 Bankruptcy Court Offers “Loss Mitigation” 4 Collaborative Approach Cuts Postage, Saves 5

See Federal Rules on page 2


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.


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

See Interview on page 10

Federal Rules continued from page 1 the way in which time is calculated by federal courts is scheduled to change. In March 2009, the Supreme Court approved amendments to Appellate Rule 26, Bankruptcy Rule 9006, Civil Rule 6, and Criminal Rule 45, to simplify the method of computing time deadlines in the federal rules. Consistent with these amendments, time periods in a total of 91 federal rules and 28 federal laws were also adjusted. Both the federal rules amendments, if Congress takes no action, and the legislation will take effect on December 1. The changes are intended to make calculating time periods simpler, clearer, and consistent. “The current rules exclude intervening weekends and holidays for some short time periods, resulting in inconsistency and unnecessary complication,” said Judge Lee H. Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure. “For years, lawyers and litigants have complained that the rules governing how to calculate time periods and deadlines are inconsistent and unnecessarily confusing. The biggest problem came from excluding weekends and legal holidays when figuring out some deadlines but not others.” The Committee decided to change the method by which the deadlines in the Federal Appellate, Bankruptcy, Civil, and Criminal Rules were computed. “Now, the amended rules are consistent and simple: count intervening weekends and holidays for all time periods,” Rosenthal said. But including weekends and holidays effectively shortens many existing periods of less than 11 days in appellate, civil, and criminal proceedings, and 8 days in bankruptcy proceedings. In a major undertaking, the Committee looked at every time period in all the rules and made adjustments to take this into account. Most short periods were extended to offset the shift in

2 The Third Branch


June 2009

the time-computation rules and to ensure that each period is reasonable. “Five-day periods became 7-day periods and 10-day periods became 14-day periods, in effect maintaining the status quo,” said Rosenthal. Periods shorter than 30 days were also revised to be multiples of 7 days, to reduce the likelihood of ending on weekends. Other changes to the federal time-computation rules affect how to tell when the last day of a period ends, how to compute hourly time periods, how to calculate a time period when the clerk’s office is inaccessible, and how to compute backward-counted periods that end on a weekend or holiday. The Committee identified a number of statutes with time periods involving court filings and worked closely with Congress to make them consistent with the amended rules. Legislation was enacted in April 2009.

There is one more necessary step before the task is completed. “The amended rules will affect some local rules and standing orders, especially those that set short deadlines,” Rosenthal warned. “To maintain consistency with the national rules and to avoid confusion, we ask that courts review the time periods in their local rules and standing orders and make the necessary adjustments.” She stressed the importance that the adjustments take effect on December 1, 2009, the same date as the national rules change. The time-computation rules amendments are at www. A Power Point presentation explaining the amended rules and their operation in court proceedings is available at rules/presentations.html.

Durbin Heads Subcommittee on Human Rights and the Law Senator Richard J. Durbin (D-IL), is the new chair of the Judiciary Subcommittee on Human Rights and the Law; the ranking minority member on the subcommittee is Senator Tom Coburn (R-OK). Durbin previously headed the Senate Judiciary Subcommittee on Crime and Drugs; Senator Arlen Specter (D-PA) now chairs that subcommittee. Durbin’s subcommittee has jurisdiction over matters of human rights and policies, the enforcement and implementation of human rights laws, judicial proceedings regarding human rights laws, and judicial and

The new chair of the Senate Judiciary Subcommittee on Human Rights and the Law, Senator Richard Durbin (D-IL)

executive branch interpretations of human rights laws. Durbin also chairs the Senate Appropriations Subcommittee on Financial Services and General Government, whose jurisdiction includes the Judiciary and the General Services Administration, the agency responsible for the construction of federal courthouses.

Easing Case Congestion with Volunteers The Judicial Conference Committee on Intercircuit Assignments, consisting of Senior Judge Warren Eginton (D. Conn.), Judge Gerald Bruce Lee (E.D. Va.), and Judge J. Frederick Motz (D. Md.), brings together courts staggering under backlogs with judges willing to take cases. In the first five months of 2009, thanks to courts’ increasing needs and the Committee’s proactive approach, the number of intercircuit assignments has increased 75 percent over the same time period in 2008. The Committee on Intercircuit Assignments maintains a roster of active and senior judges who are available to take assignments. “Judges from all over the country are willing to get in and clean up a crowded docket,” said Motz, the Committee chair. “They are the heroes of this program.” Not long ago, Motz began what he calls a Special Work Assistance Taskforce (SWAT) approach to intercircuit assignments, coordinating a large number of judges who each take a trial, a number of pending motions, or a single case for an overburdened court. The judges have access to the case docket through the Case Management/Electronic Case Files System and this, together with the ability to teleconference, means most volunteers don’t have to leave their chambers to help. Two districts were the immediate beneficiaries: the U.S. District Courts for the Middle District of Florida and the Southern District of New York. “A vacancy in our Fort Myers division left one district judge to manage a double docket,” Chief Judge Anne Conway (M.D. Fla.) explained. “And a senior judge, with a docket heavier than any of our other judges, was ill and unable to handle cases. Although all the active judges in our district and some senior judges were helping with the two dockets, the motions increased

Intercircuit Assignments 120 100 80 60 40 20 0

Jan-May 2008 Number of Article III Judges Taking Intercircuit Assignments

daily.” In addition, one of the problems with the unassigned docket in the Fort Myers division was the large number of old pending motions, which made it difficult to ready the cases for trial. To help, Motz suggested the SWAT approach and Conway accepted the offer. The call for assistance in October 2008 was answered by 17 district judges from outside the circuit who were approved, as required, by Chief Justice John Roberts Jr., to handle pending motions. Additionally, at least four district judges from within the circuit assisted. “Judge Motz even found judges willing to take on complex patent cases,” said Conway. Months later, the Fort Myers docket is in much better shape. “The SWAT assistance gave litigants and counsel an early resolution of their disputes at no additional cost to the public,” Conway said. “The effort also promoted settlement and narrowed issues for trial.” The U.S. District Court for the Southern District of New York also readily accepted the SWAT team approach. A new judge there inherited over 150 motions, while civil motions had piled up for another judge handling a lengthy trial. The court also handles a large number of complex multi-district litigation cases, which

Jan-May 2009 Number of Intercircuit Assignments

are unusually time-consuming and added to the backlog. “Although all of our judges were helping one another, our backlog was growing,” said then-Chief Judge Kimba Wood (S.D. NY). Wood described Motz’s help as invaluable. Within days of receiving the call from the district, Motz found judges willing to assist with the workload. Among the volunteers were two Massachusetts judges. Judge William G. Young took over 25 motions, handling cases remotely from his Massachusetts chambers or meeting by videoconference with attorneys when necessary. Judge Richard G. Stearns took two complex patent cases. Additionally, Eginton is spending 60 percent of his time assisting the court with its caseload. With their efforts, and the continued efforts of judges in the Southern District of New York, a mountainous backlog was significantly lessened. In the U.S. District Court for the District of Columbia, Motz offered slightly different assistance as the court begins handling a number of terrorism cases. “I approached the court and asked if they would like help,” said Motz, “not for the Guantanamo Bay cases— but help with other routine work to free up judges.” See Congestion on page 9

The Third Branch


June 2009


Bankruptcy Court Offers “Loss Mitigation” Program In the current economy, home foreclosures often yield a lossloss situation for homeowners and lenders. One bankruptcy court has launched an innovative program that tries to help both sides avoid such mutual dissatisfaction. The U.S. Bankruptcy Court for the Southern District of New York offers “loss mitigation”—a program that encourages debtors who have filed for bankruptcy protection and their secured creditors to sit down and discuss ways foreclosure might be averted. “The Bankruptcy Code does not allow me to rewrite a residential mortgage,” said U.S. Bankruptcy Judge Cecelia Morris, the program’s primary architect. “But it does allow me to say to both sides that they need to talk, in the hope that they may avert either the loss of a debtor’s property to foreclosure, increased costs to the lender, or both.” She added: “We tend to describe loss mitigation as mediation without a mediator.” The program, in effect throughout the Southern District since January, was born out of a 2008 meeting in Morris’ chambers in Poughkeepsie, N.Y., in which some creditors’ lawyers sought permission for some of their debtors to fashion new deals. “We couldn’t condone varying treatment of debtors, so any such process had to be open to all,” said U.S. Bankruptcy Judge Martin Glenn, who participated in the initial meeting. “We heard from both sides. Then Judge Morris took it from there. She’s done a terrific job.” The court’s program allows any party in a case to seek loss mitigation. Most lenders have their own in-house loss mitigation programs, but borrowers have complained about not being able to speak to a live person when they call to inquire about utilizing them. (Lenders often are

4 The Third Branch


June 2009

concerned about violating the “automatic stay” federal bankruptcy law imposes on efforts to collect debts from anyone under bankruptcy protection.) Foreclosure once might have been a good option for a secured lender who could then resell the property. But in today’s economy, the secured creditor might be better served to salvage the mortgage and continue getting payment on it. As long as it is court authorized, loss mitigation in the Southern District of New York is available to any individual debtor under any chapter of the Bankruptcy Code. But virtually all loss mitigation has occurred in nonbusiness Chapter 13 cases. Either a debtor or a creditor can request loss mitigation negotiations, or the court can order it after the parties have had a chance to object.

“We tend to describe loss mitigation as mediation without a mediator.” “I’ve had six loss mitigation requests so far, and have granted five,” said Judge Glenn, the only judge in his court’s Manhattan division to hear non-business Chapter 13 cases. “In one, the lender objected, and after a hearing, I sustained the objection.” Glenn hears Chapter 13 cases twice a month, about 50 to 100 cases each of those days. “I’ve been surprised I haven’t had more loss mitigation requests,” he said. Through March 30, such requests were more frequent in the bankruptcy court’s Poughkeepsie (98 requests) and White Plains (42 requests) divisions.

The loss mitigation process, fashioned by Judge Morris and her career law clerk, Jeff Narmore, is modeled loosely after the Southern District of New York’s mediation program. “What I think the two programs have in common is the concept that although the parties cannot be forced to reach an agreement, a judge can require those parties to confer with each other in a good-faith effort to resolve, or narrow, the issues,” Narmore said. “To qualify as a good-faith effort, each of the parties participating in the discussion needs to be accessible to the other and have settlement authority. Both parties are assisted by having an open and definite line of communication, and where a resolution is possible, the time needed to reach agreement may be reduced,” he said. To request loss mitigation, a debtor must serve notice on the creditor, which then has 14 to 21 days to object, depending on whether the request was in the original bankruptcy plan. A creditor who requests loss mitigation must notify the debtor and debtor’s attorney, who have seven days to object. If no objection is made, the judge sets up a schedule and time-lines for the parties to meet with each other. All the program’s procedures are spelled out on its website, www. Just type “loss mitigation” in the search box. “We’ve had lawyers for debtors and creditors praise the program,” Judge Morris said. “Both sides have the same interest. The lender doesn’t really want the house, and the homeowner doesn’t want to give up the home. It can be a win-win situation for them to sit down and work out a deal.”

Collaborative Approach Cuts Postage, Saves Time Imagine printing out five different sentencing forms for each defendant in a case, making copies of each form, placing this mass of paper— sometimes upwards of 70 pages—in an envelope, and mailing it to the U.S. Sentencing Commission where the data is collected. Now multiply that by the over 76,000 original sentencings annually. The postage costs alone are daunting. To remedy the situation, the U.S. Sentencing Commission (USSC) developed an electronic submission system, in use by 94 districts, that allows the courts to transmit images of the sentencing documents in PDF format instead of mailing them, saving postage costs and the inconvenience of copying. And with the Probation Office in the Southern District of California, they’ve begun developing the next phase, a web-based service. Realizing the value in this electronic transmission, George Hoggan, Information Systems Manager for the Probation Office in the Southern District of California and Dan King, systems manager for the Probation Office in the Eastern District of Washington, thought that with a few refinements to the Electronic Probation and Pretrial Services System (EPPS), staff could accomplish this task with a push of a button. The next release of EPPS, collaboratively developed by Hoggan and Programmer Aileen Calabia, with input from King and the EPPS Working Group, will make this possible. EPPS is a feature of the Probation/Pretrial Services Case Tracking System (PACTS) that is used by offices nationwide. PACTS and its Document Imaging application allow probation and pretrial services offices to manage documents electronically, and scan, store, and share key documents in electronic format within the Judiciary. A recent enhancement to the application now allows users to send

documents electronically from PACTS to agencies outside the Judiciary. “The application enhances usability of electronic documents by automating what was once a very labor-intensive process. When the USSC developed its own electronic submission system then followed up with a web-based service, the natural progression was for us to send electronic documents directly to them using the application,” King explained. “Court support staff can view data and documents in the system; do a quality assurance check to be sure everything requested is there; then push a button. The information is sent.” “Over the past few years, the U.S. Sentencing Commission worked actively with the district courts to move away from copying and mailing hundreds of thousands of pieces of paper,” said USSC Staff Director Judith Sheon. “In the first phase of automating this process, we developed a highly successful system that relies on the creation of PDF files transmitted electronically. For the second phase of automation, the Commission has worked with the Probation Office in the Southern District of California, and continues to work with the AO’s Office of Probation and Pretrial Services, to develop a web-based service for the transmission of documents, which should promote further efficiencies.” The web-based service

means documents now can be sent directly from the PACTS application. “We save paper, time, and money,” said King. Some documents, e.g., the judgment, presentence report and indictment are acquired electronically. Other documents can be scanned into the PACTS Document Imaging system. “Scanning still takes time,” he said, “but once they’ve been scanned, the documents are used for multiple purposes.” The application also catalogs, tracks, and quickly retrieves documents electronically. “Previously, we’d send all the documents and, down the road, we’d get a report back telling us which documents were missing,” said Ruth Romero, clerical services manager in the Southern District of California where EPPS originated. “Sometimes we had a list of 1,000 case names, or more. People would come in on weekends and after hours to pull all the documents together manually. Now, PACTS tracks what was sent and stores the documents. We don’t have to re-copy. We just re-send electronically.” As a bonus, when other districts request presentence reports or judgments in a case, it’s easy for staff in one court to attach the documents to an email and send them to the requesting court. The documents also can be sent to federal agencies such as DOJ’s See Collaborative on page 9

5 The Third Branch


June 2009

Souter continued from page 1 problem was the debasement, and in some places the disappearance, of knowledge of the structure and work of the government.” The justice called on judges, lawyers, and all citizens to join in the “re-education of a substantial part of the American population”—teaching them “what it means to be an American living under the democratically republican government.” He added that he recently joined an independent curriculum committee in his home state of New Hampshire to devise a new civics curriculum “from kindergarten through grade 12.” Souter recalled Benjamin Franklin’s famous response after the Constitutional Convention of 1787 when asked what kind of government the country would have. “A republic, if you can keep it,” the founding father said.

“It can be lost, as he knew,” Souter said. “And the lesson we have been learning over the past couple of years is that it is being lost. It is lost when it is not understood. If it is not understood, it will basically leech away.” And with it, the concept of a fair and independent judiciary will be lost, he added. Souter attributed to the late U.S. Court of Appeals Judge Richard Arnold “the most eloquent, the most perfect statement of the need for an independent judiciary, and an indication of its value that I have ever heard.” He said Arnold simply uttered, “There has to be a safe place.” “And that is why we have jobs to do—hands-on, concrete ones. That is why we have to go to work (in upgrading the teaching of civics),” Souter said. “Because there has to be a safe place.”

Supreme Court Nomination for Sotomayor

Learn About the Courts On-line Supreme Court Justice David Souter called for the re-education of the American public on its government. The websites below are a sampling of the resources found on-line that may assist in that effort. Many local court websites also contain information and links to helpful resources.

n The federal Judiciary’s Educational Outreach website at outreach//index.html offers a variety of resources.

Open Doors to Federal Courts Courtroom simulations center on topics relevant to teens, including the Bill of Rights and issues related to the Internet, school newspapers, police searches, and student expression, among others. www. opendoors.htm Courtroom- and ClassroomReady Materials

Supreme Court nominee Judge Sonia Sotomayor (2nd Cir.) is shown here in 2004 in New York with Judge Robert A. Katzmann (2nd Cir.) and Judge Damon J. Keith (6th Cir.) viewing the Marching Toward Justice display on the history of the 14th Amendment. Sotomayor was appointed to the U.S. District Court for the Southern District of New York in 1992. She was elevated to the Court of Appeals for the Second Circuit in 1998.

6 The Third Branch


June 2009

Information about the structure, function, role, and work of the federal courts is presented in an interactive format. Designed for use by judges, teachers and students, it features activities related to contemporary Supreme Court decisions, games that test knowledge of the Constitution, and basic court-related information. outreach/topics/index.html Constitution Day Resources Constitution Day is observed each September 17. To assist courts and teachers with the

celebration, the Judiciary’s website offers videos, discussion topics, interactive games, and links to additional resources. www. constitutionday.html

n Supreme Court Historical Society The Society's “We the Students” on-line Learning Center features sample cases and class exercises. n Our Courts Inspired by Justice Sandra Day O’Connor’s belief that education and teachers are the cornerstone of a successful democracy, this site provides interactive activities for students and useful teaching resources for an engaging civics curriculum. n Speakers Bureau Our Courts is a Colorado speakers bureau begun by a federal judge and a state judge, in which 200 trained speakers provide nonpartisan, unbiased information about the court systems to adults. Training and start-up kits are available to other states, upon request. www. n Law Day and Juror Appreciation Month 2009 Federal courts around the country celebrate Law Day and Juror Appreciation Month in various ways, inviting the public to visit and learn more about the federal Judiciary. In the Eastern District of Pennsylvania, high school students spend a day at courthouses in Philadelphia, Allentown, and Reading, participating in mock trials and appellate hearings: www.paed. T h e ABA website at www.abanet. org/publiced/lawday/2009/ home.shtml include resources and ideas for classroom lessons. See On-line on page 9

Maine Jurist Receives Devitt Award Judge D. Brock Hornby (D. Me.) has been selected to receive the 27th Annual Edward J. Devitt Distinguished Service to Justice Award. The award honors Article III judges whose careers have been exemplary, measured by their significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole. He will receive the award at a ceremony later this year. Hornby has served on the U.S. District Court for the District of Maine since 1990, and as chief judge of the district from 1996 to 2003. He currently chairs the Judicial Conference Committee on the Judicial Branch and the Ad Hoc Committee on Judicial Salary Restoration, and has served on numerous Judicial Conference committees. From 1988–1990, he served on the Maine Supreme Judicial Court and from 1982–1988 as a U.S. magistrate judge. Earlier in his career, Hornby was in private practice in Maine and was a professor at the University of Virginia School of Law. He earned his J.D. cum laude from Harvard Law School in 1969. Hornby was selected for the honor by Associate Justice Anthony M. Kennedy, Judge Diarmuid F. O’Scannlain (9th Cir.) and Chief Judge Donetta W. Ambrose (W.D. Pa.), all of whom offered generous praise. Kennedy called Hornby, “a model for all judges,” citing his “splendid judicial demeanor that demonstrates devotion to the law and confirms

Judge D. Brock Hornby (D. Me.)

his own dignity and decency.” O’Scannlain noted that Hornby is “an articulate and respected spokesman for the United States Judiciary on the national level. And, while maintaining active status with a full trial docket, he has found time to educate judges in foreign countries as well.” Calling Hornby’s reputation within the Judiciary “stellar,” Ambrose observed that he is widely known and recognized for his integrity, legal ability, experience, and commitment to the rule of law. In nominating Hornby for the award, Chief Judge John A. Woodcock Jr. (D. Me.) and Judge George Z. Singal (D. Me.) described him as “a man of extraordinary brilliance, whose insightful grasp of the complex is immediately apparent to all who meet him or appear before him.” The Devitt Award is named for the late Judge Edward J. Devitt of the U.S. District Court for the District of Minnesota. It is administered by the American Judicature Society with funding provided by the Dwight D. Opperman Foundation.

“. . .his splendid judicial demeanor demonstrates devotion to the law. . .”

7 The Third Branch


June 2009

JUDICIAL MILESTONES Senior Status: U.S. District Judge Helen Gillmor, U.S. District Court for the District of Hawaii, June 30. Senior Status: U.S. District Judge Henry M. Herlong Jr., U.S. District Court for the District of South Carolina, June 1. Senior Status: U.S. District Judge J. Garvan Murtha, U.S. District Court for the District of Vermont, June 30. Senior Status: U.S. District Judge E. Richard Webber, U.S. District Court for the Eastern District of Missouri, June 30.


Elevated: U.S. Court of Appeals Judge Joel Dubina, to Chief Judge, U.S. Court of Appeals for the Eleventh Circuit, succeeding U.S. Court of Appeals Judge J. L. Edmondson, June 1. Retired: U.S. Chief Bankruptcy Judge Mark B. McFeeley, U.S. Bankruptcy Court for the District of New Mexico, May 6. Deceased: U.S. Senior Judge David K. Winder, U.S. District Court for the District of Utah, May 19.

THIRD BRANCH Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond

Senior Status: U.S. District Judge Kimba M. Wood, U.S. District Court for the Southern District of New York, June 1.

PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli, AO Please direct all inquiries and address changes to The Third Branch at the above address or to

JUDICIAL BOXSCORE As of June 1, 2009 Courts of Appeals

Vacancies Nominees

15 3

District Courts

Vacancies Nominees

Courts with “Judicial Emergencies”

Up-to-date information on judicial vacancies is available at http://www.

8 The Third Branch


June 2009

57 0 23

Photo Credits: Luis Lopez, Joseph Gelvezon.

The Central Islip Federal Courthouse in the Eastern District of New York recently dedicated its library in memory of Judge Jacob M. Mishler, who served for nearly 44 years on the court. Friends, judicial colleagues and former law clerks gathered to remember Mishler and name the library in his honor. Mishler was nominated to the federal bench in 1960 by Dwight D. Eisenhower. He served as chief judge from 1969–1980 and assumed senior status in 1980. He died in 2004.

Congestion continued from page 3

Collaborative continued from page 5

The offer has been accepted by Chief Judge Royce Lamberth. “Several judges have volunteered to take pending dispositive motions,” said Lamberth, “and three judges will take other trials to free up our judges to spend more time on Gitmo cases.” “There are several district courts around the county that have disproportionately burdensome dockets and many judges who are saddled with caseloads much heavier than the norm,” said Motz. “The Intercircuit Assignment program helps these judges, as well as lawyers and litigants in cases stalled due to docket congestion. At the same time, the program proves that the federal Judiciary utilizes all of its resources to the maximum extent.”

Office of Federal Detention Trustees, in addition to the USSC. The Probation Office in the Southern District of California initially piloted the application working closely with the USSC to make the design compatible. “The probation offices in the Eastern District of Louisiana, the Eastern District of North Carolina, the Northern District of Georgia and the Southern District of Texas are part of the pilot program,” said John Hughes, Assistant Director of the AO’s Office of Probation and Pretrial Services. “We’ll ask for feedback on the application by the end of July. Then, hopefully, we’ll begin a national rollout of the application in September.”

On-line continued from page 7 An on-line Juror Appreciation Kit, developed by the Commission on the American Jury, includes activities to help courts devise programs to honor local citizens who serve on juries. Visit jurorkit.html. n Citizens’ Law Academy Launched by the District of Idaho in partnership with the Idaho State Bar Association in 2000, the adult public information program explains how the judicial system works, what lawyers do, and the laws affecting our daily lives. Course schedules for 2009 are found at www2.

9 The Third Branch


June 2009

I N T E R V I E W continued from page 1 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.


Judge Barbara M. G. Lynn (N.D. Tex.)


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.


How are bankruptcy case filings affecting judicial workload?


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

10 The Third Branch


June 2009

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


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.


How are bankruptcy judgeship recommendations developed by the Judicial Conference?


It’s a multi-step process. Essentially, we operate on a two-year cycle. About half way through evennumbered 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.


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?


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 2009.


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


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 See Interview on page 12 The Third Branch


June 2009


I N T E R V I E W continued from page 11 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.


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


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

THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544


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.






2009 06 June  

The Third Branch - Official Newsletter of the United States Courts

Read more
Read more
Similar to
Popular now
Just for you