20 Questions with U.S. District Court Judge J. Thomas Marten
The idea of a judgeship came and went at various times, but never seriously until I had been practicing law for more than fifteen years. At that point, I felt I knew enough about how a trial judge should approach court work to take a shot at a judicial position. It took about fifteen minutes to find out how wrong I was. But the years of general practice with a focus on all kinds of litigation, most of those years with a small firm in a community of 12,000, provided broad exposure to many kinds of problems, which has been of great help in this work.
2. Reaching decisions based upon the law is sometimes an extremely unpopular process. You have suffered the slings and arrows of that process while serving on the bench. How do you handle those who fail to appreciate the legal parameters within which you must operate?
Everyone is entitled to express an opinion – that is one of our country's great strengths. The difficulty is in trying to give a true picture of a decision to the public when opinions that are based on little or no information are in wide circulation instantaneously. Persons understandably are interested in a result, not how the judge reached it, but reasoning often is the key to the entire decision. Judges frequently are asked to speak to groups, classes, and organizations. It is surprising how many people in all walks of life believe judges and juries can do whatever we wish to do, as if the law is something we make up to fit the facts of a case -- that we are not bound by our oath to consider the Constitution, statutes, case law (both binding and persuasive), legislative history, and the many other sources of authority in deciding a case. There is a belief that judges manipulate the law to reach a given result. Of course, that is not the case, and we do our best to get the truth to the people. A second factor is the emotional pull. On occasion we deal with issues which tend to arouse strong feelings and may not leave much room for measured thinking. Someone once told me about a memoir in which a father told his daughter that "feeling is not the same thing as thinking." That sums it up very well, and contributes to the lingering misperception. To answer your question specifically, my colleagues and I take each opportunity and make every effort to explain what we do and how we do it. The information is available – the judiciary is the only branch of government required to explain every decision in writing, and the opinions are posted on several websites. Of course, much of our writing is not particularly riveting, which is another topic we will get to later.
3. Even great lawyers seek affirmation of their talent. Sometimes, our profession's best are unaware of habits or practices they employ that may be ineffective with, if not sometimes annoying to, judges. What things do you see lawyers do during actual trial that would be best if not done? That is, can you give me a list of don'ts?
There are not too many, and most of them are common sense matters. As a start, be familiar with your judge's practices. For example, I never require lawyers to ask permission to approach a witness with an exhibit (it is in my guidelines available online), but invariably they do. Handling documents, identifying them properly, and offering them are often a bit more troublesome than necessary, even for lawyers who have been practicing for decades. A lawyer should always have papers at his or her fingertips, ready to use them in an examination, particularly when court starts up after a recess. There is no reason to wait until the jury is in the box to retrieve and organize them. Finally, lawyers should respect the system. Everyone involved is entitled to common courtesy. In recent years, it appears lawyers increasingly feel the need to show they control the courtroom, which is a mistake. A lawyer who comes to court to prove anything other than his or her case to the trier of fact is in the wrong place. I do not know why this is happening, but I suspect that as fewer cases go to trial, lawyers have fewer opportunities to learn proper courtroom decorum, and television is not an adequate source of instruction. Bombast is not passion, and arrogance is not strength. Jurors identify to a greater extent with a judge than counsel, likely because neither the judge nor the jury has a stake in the outcome. Counsel's disrespect to the court backfires more often than not.
4. I read your Washburn Law Journal article on writing. It would have been nice to have that article handy early in my career. You refer to the legal writer's troika of accuracy, clarity, and perspective. So with great accuracy and clarity, can you give us an abbreviated perspective on brief writing in federal courts?
We receive some great briefs, some not so great. You mentioned three key elements: accuracy, clarity, and perspective. If I was writing the piece today, I would add "brevity," which shares a root with "brief." While your brief always has to stand up, you also should find a way to make it stand out. Frequently, a single sentence will do. It might be a particularly memorable quotation, not necessarily from a case or treatise, but perhaps from a work of fiction or a song lyric. The California Supreme Court quoted Bob Dylan's "Subterranean Homesick Blues" on the subject of expert testimony, "You don't need a weatherman to know which way the wind blows." Short, sweet, and to the point. Speaking of which, and also on the subject of brevity, one or two on-the-point citations with a short synopsis of each is more valuable than many not-quite-on-the-point cases and pages of supporting argument. We trial judges spend more time in court and deal with more issues than appellate judges, so getting to the point, and doing it in a memorable way, is important. By the way, do not forget to point out contrary authority. Even if it means losing a case, it will serve you very well over the course of your career. And on that point, lawyers and judges have long memories. I should also mention, we judges fall victim to many of the same practices, and need to practice what we preach. I hope our opinions are approaching a point where not only the lawyer but the client can read them once and understand what happened, whether or not the client agrees with the conclusion.
5. You practiced law in Nebraska, Minnesota, and Kansas after clerking for Justice Clark. Did the differences in procedure and substantive law make those cross boundary practices difficult?
No. I had great colleagues in Omaha and Minneapolis who were most helpful where there were differences. Much of my work in Nebraska and Minnesota was brief-writing, and that did not vary much from state to state.
6. What impact do you think the discovery process has had on the number of cases being tried?
It likely has had some significant impact. When I was in law school, we were told about 10% of filed cases went to trial. In my home district of Kansas, it is now between 1½% and 2%, both civil and criminal. On the civil side, where discovery figures most prominently, at least two matters seem to have contributed to the "disappearing trial." In order of appearance, the first was the Celotex trilogy of U.S. Supreme Court decisions, where, for the first time, Rule 56 summary judgment motions were given teeth. Where before Celotex, discovery had been focused on getting past a directed verdict motion, post-Celotex, discovery took on new prominence as a means of supporting or opposing a summary judgment motion. No stone remains unturned. I believe the cost of discovery, particularly with the advent of e-discovery, has resulted in more settlements and fewer trials. From retention procedures and policies to protective orders to inadvertent disclosures and claw-back agreements, discovery is now more complex, it has created litigation within litigation, and the cases reflect it. Finally, I suspect people experience that nagging little fear about what might be buried in all of that ESI, bringing back to life a Professor Kingsfield statement in an episode of "The Paper Chase" – "Everything is on the record. Forever."
7. What do you consider your most unusual accomplishment?
As a practicing lawyer, it probably was arranging the first "live via satellite" witness examination in a trial. The witness testified live from a studio in Kansas City, Missouri, in a case we were trying to a jury in a Wichita, Kansas, courtroom. The witness saw everyone in the courtroom; the judge, jury and lawyers all saw him, and the parties were able to make spontaneous objections. Since that time, and as the technology has advanced from satellite to cable, remote testimony has become commonplace. Outside of the legal field, Jimmy Fortune (Statler Brothers) recorded a song on his latest CD that he and I wrote together.
8. What has been the biggest change in the way law is practiced between the time you first began until now?
The relationships are very different – overall, although not always true, the practice of law is more depersonalized. We used to spend considerable face time with clients, opposing counsel, and judges. Now, much more is done by email and telephone, which is a different dynamic. We used to have docket calls and hearings on motions. The United States Supreme Court had yet to decide Celotex, so discovery was directed more toward trials and less toward summary judgment motions. And while the law always was a business, it was secondary to taking care of clients. The old-line institutional relationships between lawyers and clients, which were strong and important to both, have broken down to a great extent, and law firm bills now are so detailed that time-keeping is almost calculated as a percentage of the day. My first firm sent out bills that read, "For services rendered, including [general listing of work performed – no recitation of hours]."
9. You have had an opportunity to travel a great deal in your career. What are some of your favorite cities or places, and what fascinates you about them?
I have not traveled much outside the United States. It is a bit provincial, but Kansas is still my favorite place. It is home, but is much more than that. To quote Carl Becker, a noted historian, "Kansas is no mere geographical expression, but a 'state of mind,' a religion, and a philosophy in one." My one trip overseas was to Ireland. Each part of the island has its own charm and personality, but I found Galway, with its older buildings and winding streets, uniquely appealing, followed by Dublin, with its blend of the ancient and the ultra-modern. Throughout the country, even in the wake of Ireland's economic downturn, the people were unfailingly kind and helpful, and the court personnel, other government officials, lawyers, judges, and law professors could not have been more generous with their time and willingness to share their insights. There is something very spiritual about Ireland that stays with me. Among U.S. cities, New Orleans (character), San Francisco (beautifully individualistic), Nashville (music and musicians), Washington, D.C. (pulse of the nation), Boston (the sense of history), Birmingham (so much industrial and civil rights history), and any city in New Mexico (Santa Fe for charm and beauty, Albuquerque for the University and its controlled growth, Las Cruces for its heavy Native American and Mexican influences and the kind people, Silver City for its history and remnants of the old west) are favorites.
10. What justices and/or judges in American jurisprudential history intrigue you?
I am glad you used the term "intrigue" as opposed to "respect and admire." There is not enough room in this journal, nor would I have enough time in my remaining years, to fully answer the question. I do respect and admire each of the persons I mention below, but I find them intriguing, as well.
It is difficult not to name John Marshall for securing the courts' place in the system of constitutional checks and balances in Marbury v. Madison. Among Chief Justices, my favorite was Earl Warren, for the qualities he brought to the bench. He was a man of the people who never lost touch with and his affection for the common man. He led the court into desegregating public schools in Brown v. Board of Education of Topeka, Kansas, in requiring law enforcement authorities to advise an accused of his or her rights and privileges in Miranda v. Arizona, making the right to counsel meaningful in Gideon v. Wainwright, in establishing the principle of "one man, one vote" in Baker v. Carr at a time when that concept was frequently honored in the breach, and in many other areas. He persuaded majorities of his court through his faith in the law and the people it serves. Justice Louis D. Brandeis created the "Brandeis brief" during his career as a practicing lawyer, and he kept a keen interest in social justice throughout his time on the bench. I highly recommend Brandeis's biography by Alpheus Thomas Mason, Brandeis: A Life in Law, to everyone.
Among the other justices, no one intrigues me more than my former boss, Justice Tom C. Clark. Justice Clark was castigated by his benefactor, President Truman, for his vote in the steel mills case, something Truman never got over, as Truman biographies have noted. A Texan, Justice Clark was a vote for school desegregation in Brown v. Board of Education of Topeka, Kansas. He retired from the court at age 67, a retirement triggered by President Johnson naming Ramsay Clerk, Justice Clark's son, Attorney General of the United States, which created an irreconcilable conflict of interest for Justice Clark. Upon the Justice's retirement, the president named Thurgood Marshall to the court. Justice Clark not only was appropriately proud of Ramsay, but went on to become the most active retired U.S. Supreme Court Justice in United States history, sitting by designation in district courts and courts of appeals throughout the U.S., and being the first director of the Federal Judicial Center. His daughter, Mimi Gronlund, has written a beautiful biography of the justice, which captures his great humanity. Justice Thurgood Marshall is also on my list, as much for his career with the NAACP Legal Defense Fund as for his contributions on both the Second Circuit and the United States Supreme Court.
Frank M. Johnson, who presided over some of the early desegregation cases in Alabama as a U.S. District Judge in the Middle District of Alabama (Montgomery), and who later served on the U.S. Court of Appeals for the Fifth and Eleventh Circuits (the Fifth was split into two circuits – the Fifth and the Eleventh, while Judge Johnson was on the court), was one of those persons who never sought greatness – it was thrust upon him, which made him even greater. Justice Sonia Sotomayor is living history for me, as is senior U.S. District Judge Anne Thompson, the first woman and the first African-American federal judge in New Jersey. Judge Arthur Jehu Stanley, Jr. of the U.S. District Court for the District of Kansas, ran away from home at the age of 14 to join the Canadian military (he was retrieved by his father), served in every branch of the U.S. military (during one such stint he chased Pancho Villa around the southwest on horseback), and was ramrod straight until his death in 2001, less than two months short of reaching 100 years of age. His favorite drink was Black Bush Irish Whiskey, and in a tip of the hat to Judge Stanley, our judges adopted Black Bush as the Official Drink of the United States District Court for the District of Kansas. Another federal district judge colleague, Wesley E. Brown, died in office in January 2012, at the age of 104, and continued working until the day he passed. He was extraordinary in every way, and was the human embodiment of "The Deacon's Masterpiece; or The Wonderful 'One-Hoss Shay,'" by Oliver Wendell Holmes, Justice Holmes's father.
11. As a judge, what do you do differently than the judges before whom you practiced before you took the bench? Or perhaps more candidly, what did judges before whom you practiced do that you swore you'd never do if you ever became a judge? And have you been able to stick to it?
It was my great good fortune to have practiced before excellent trial judges, almost without exception. One of the things that set the fine judges apart from those who were not as capable was the way they treated lawyers, particularly in the courtroom. I have never seen anything good come from embarrassing or dressing down counsel in public. Any issues or frustrations can wait for a chambers conference, and even then, there is no need to lose one's temper or go out of the way to humiliate someone. Those of us who tried cases know the pressures lawyers experience in court, and remembering that goes a long way in maintaining an evenhanded and non-threatening atmosphere. I hope I have been true to that commitment, but the lawyers are probably in a better position to comment on that than I am. I also have altered a few things procedurally – for example, in civil cases the lawyers make complete opening statements to the entire venire panel before we begin voir dire, and starting the second day of trial, our trial schedule is 8:30 AM to 2:00 PM with only two short breaks. It keeps the jurors clear-headed, allows those who are self-employed or small business owners or employees to get in several hours of work after court, if necessary, and gives the lawyers time to look after other matters in their practices, while still giving them additional preparation time for the next day.
12. What was the last fictional lawyer book you read, and was it realistic and on point?
I used to read almost every fictional lawyer book published, but I drifted away from them a few years ago. Looking back over my books, the last one I read was Scott Turow's Innocent. I am a Turow fan for a couple of reasons. Generally, I do not care much whether the legal proceedings are spot-on in fiction, but his always are, which makes the book that much better. More important, what is going on in the mind of any of his characters is always believable, even when he turns an unexpected corner. Finally, in Innocent, the human story, the relationships, are more compelling than the outcome of the legal proceeding. Although I still wonder how Rusty Sabich made it to the appellate court after having been a murder suspect all those years earlier. He was already on the appellate bench in one or more of Turow's earlier books, but I have always thought it would be an interesting story.
13. What is your greatest extravagance?
Music. I have more guitars (but no classics, in the sense of being valuable) than I should, and I do not play all of them -- it just makes me feel good to have them. I also have a couple of keyboards, some unsophisticated recording equipment and other live performance items, too many CDs, LPs, and .mp3s to ever be able to listen to in my lifetime. I play in a group that practices more often than it appears in public, but it is a great outlet for me. I take 1-2 trips to Nashville per year to see friends and to hear some terrific original music.
14. Is there an object you keep in your office that serves to re-energize you when your mood needs an adjustment?
I keep pictures of my grandchildren here. And a guitar.
15. If you could meet anyone from history, who would it be, and why?
I am assuming you mean to actually have an opportunity to get to know the person and spend some time together. If that is the case, Thomas Jefferson would be my first choice. His range of interests and talents were very broad, but more than that, I would like to hear him try to justify support for slavery in the late 18th Century.
In more recent times, it would be the late Rev. Fred Shuttlesworth. From what I have read of the civil rights movement in Alabama in the 1950s and 1960s, Rev. Shuttlesworth was the true glue of the movement on a day-to-day basis. He was beaten trying to enroll his children in school, his house bombed, and his life threatened on nearly a daily basis. He moved to Cincinnati, Ohio, in 1961, where he continued his civil rights work and maintained a close relationship with the movement in Birmingham. Rev. Shuttlesworth was certainly one of the most hated men in Alabama among the segregationists, yet today, the Birmingham airport is named after him. By any measure, he was a remarkable courageous man.
Wouldn't it be interesting to ask the founding fathers whether they intended that judges interpret the Constitution according to their (the founding fathers') original intent or whether they intended it to be a living document? It might have saved us some heartburn along the way, too.
16. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in Litigation Commentary & Review, as well as the Diversity Law Institute's website. So in a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
One reason the people we live next door to who are involved in litigation tend to favor jury trials is because they may see someone they recognize in the face of a juror. Not someone they literally know, but someone who reminds them of a neighbor or a friend or a relative in whom they have confidence. We as a nation live by our laws voluntarily, so anything we can do to make our legal system a reflection of the world we hope to create reinforces the confidence of people affected by the system. Diversity is everywhere – in our streets, in businesses, in churches, at sporting events, in most communal areas of our lives. Whether it is gender, race, nationality, religious preference, or sexual preference, diversity in all forms not only makes life more interesting, it makes life better. We gain different ideas and perspectives, and the opportunity to live and work together improves our lives.
17. What trait do you most value in your friends?
Compassion for others.
18. If you could not be a judge or lawyer, what would you like to be?
I would be a songwriter.
19. One of the cases that helped pave the way for an integrated South back in the 1960s was Katzenbach v. McClung, whose majority opinion was written by Justice Clark. It involved a barbecue restaurant in Birmingham called Ollie's, where other lawyers and I would eat decades later when I practiced law there. It was very good barbecue. So without regard to the Commerce Clause or any personal insight Justice Clark might have shared with you, can you tell me the best place or places to find really excellent barbecue in Wichita? You were not expecting that one were you?
No, I was not. And unfortunately, I have to duck it for ethical reasons. But, if you come to Wichita, we will go to lunch, and I'll give you the choice of several great places. The one thing I can state and still stay within appropriate bounds, is that BBQ in Kansas in several locations, including Wichita, is the best BBQ you will ever get anywhere. And I've eaten BBQ about every chance I get in about every place I've gone. My group even plays a Robert Earl Keen song called "Barbeque." I have to believe Robert Earl wrote it after eating Kansas BBQ.
20. What is your motto?
It is a paraphrase of a Bryan Stevenson (Equal Justice Initiative, Montgomery, AL) statement – "Every human being is more than the worst thing he or she has ever done." I keep his full quotation under glass at my bench.
By G. Steven Henry
President Clinton named Judge Marten to fill a vacancy on the federal bench in Wichita in October 1995; the Senate confirmed the appointment in January 1996.