Judge Not, Lest Ye Be Judged -- Via Online Resources

It seems like you can't read a legal publication these days without coming across an article about a judge in hot water. For instance, in September, it was reported that “[a] West Virginia Supreme Court justice has refused to take himself out of a case involving the state cap on punitive damages, even though he pledged during his election campaign that he would never vote to overturn the law imposing the cap.” See, “New Recusal Controversy in W.Va. High Court,” The National Law Journal, Sept. 27, 2010. Are these types of incidents simply occurring more often and, therefore, warrant reporting? We don't think so. Rather, we believe that the explosion of information about judges now available online has enabled researchers to uncover indications of possible bias, prejudice and other relevant tidbits. For instance, with respect to the above-noted incident, the justice's comments are easily found via a search online (and, notably, the justice ultimately did recuse himself. See, “Ketchum reverses course, recuses himself,” West Virginia Record, Sept. 28, 2010).

When it comes to researching information about a judge, several questions should come to mind:

• How knowledgeable is the judge about this area of law (i.e., has he or she handled this type of case previously)?
• Does the judge have a conflict of interest (e.g., via relationships with parties, attorneys, etc. or via a financial/property interest in the outcome)?
• Is the judge biased (e.g., based on expressed personal opinions, political connections (such as contributions to and contributions from))?
• Does the judge take the time and energy to drill down into the legal issues, or does he or she tend to “look for the easy way out” and resolve matters without addressing the substance of claims?
• Does the judge sit on cases or motions for extended periods of time, or does he or she resolve matters quickly?
• Does the judge rule on dispositve motions, or simply deny them as a matter of course and send cases to a jury?
• Does the judge have any particular likes/dislikes/idiosyncrasies that should be known?

Answers to these questions can sometimes play a critical role in how a litigator represents his or her client, but real research has to be performed. How to do it? Gone are the days when we could simply send a note to colleagues and local counsel inquiring as to their knowledge about, and experience before, an unknown judge ' and be done with it. Yes, their personal contact and knowledge is of critical importance, but in today's world, with so much information now available online, a litigator must do more.

Open Web Searching

Yes ' you do it ' run an “open Web” search on the judge's name. For instance, a quick search of the name of Federal Bankruptcy Judge Robert Kressel (D-MN) reveals that he has very specific guidelines that go beyond even the court's local rules. Specifically, he advises attorneys to avoid superfluous words, to never use the word “undersigned,” and even to “[p]lease use the possessive noun 'its' and the contraction 'it's' correctly.” (see, http://lawyerist.com/lawyerist/wp-content/uploads/2009/12/Judge-Kressel-Order-Preparation-Guidelines.pdf). Pity the young associate who submits a motion that violates these guidelines.

An open Web search might also lead you to sites, such as Judgepedia (www.judgepedia.org), that contain profiles of judges that provide information about their educational history, legal career, notable cases and more. You might also come across anonymous ratings at sites such as the Robing Room (www.therobingroom.com) or Courthouse Forum (www.courthouseforum.com).

However, be careful with information found on the open Web, especially those sites that are less well known. Just because it exists at “Larry's Web site,” does not mean it is true.

Biographical Information

After tapping your colleagues and friends, and then surfing the open Web, check out the various proprietary databases available online. Your first searches should be through more-official biographical information. Resources, such as the court's Web site, the Judicial Staff Directory, the Almanac of the Federal Judiciary, and the Web site of the Federal Judiciary Center, offer valuable background information (but note that official information about state court judges can prove harder to find). For instance, if you were handling a big tobacco lawsuit, wouldn't you want to know if the judge assigned to your case is on the local Board of Directors for the American Lung Association? (At least two federal district court judges are, or have been.)

Also consider checking out public profile information available at sites such as LinkedIn and Facebook. Relationships, friendships, or even comments revealed through such sites might be telling. In fact, in January 2010, a state court judge in Georgia resigned after it was uncovered that he had a “Facebook dialog with a woman who was a defendant in a matter pending before his court.” See, “Ga. Judge Steps Down Following Questions About Facebook Relationship With Defendant,” Fulton County Daily Report, Jan. 7, 2010.

When it comes to biographical information, also be sure to search for attorneys (in attorney biographical directories) who previously clerked for the judge handling your case. Such individuals are often willing to talk to you and can provide tremendous insight about the judge.

Authored Works

Opinions are great for ascertaining how a judge has addressed your issue in prior lawsuits. A powerful strategy ' one that has actually worked for us ' is to uncover all of a judge's prior opinions (whether reported or unpublished) on a particular issue. Then, if those opinions are favorable to your position, cite them (liberally) in your motion, taking care to point out after each citation that the judge authored the relevant opinion.

Opinions, however, can reveal so much more. For instance, one Federal District Court judge has cited Shakespeare over 30 times in his opinions (including at least twice in 2010). It's therefore not all that surprising that, in their motion for summary judgment filed with that judge a couple years ago, the authoring attorneys cited Shakespeare ' and that the motion was ultimately granted. See, Family Life Church v. City of Elgin, 561 F. Supp. 2d 978 (N.D. Ill. 2007). Citing Wikipedia in a motion filed before the judge who calls information from the Internet “highly questionable” would not be wise. See, Trademark Props. v. A&E TV Networks, 2008 U.S. Dist. LEXIS 87731, 7 & n2 (D.S.C. 2008). Similarly, avoiding the overuse of acronyms in briefs filed with a certain appellate court in California would be prudent in light of the comment of an appellate judge on that court who considers them to be the “uglification of the English language.” See, National Paint & Coatings Assn, Inc. v. South Coast Air Quality Management District, 177 Cal. App. 4th 1494, 1498 n1 (Cal. App. 2009).

In addition to opinions, some judges author other works, such as law review articles, treatises and even written materials for CLEs. Accordingly, search for those materials as well. For example, in its appeal to the Second Circuit in the lawsuit concerning the right of Maurice Clarett (a freshman running back at Ohio State University), and others similarly situated, to be drafted early, attorneys representing the NFL cited a law review article authored by one of the judges who potentially could have been assigned to the panel: “An added in-your-face element: to support their arguments, the NFL lawyers quoted from a law review article co-written by former Yale University law professor Ralph Winter. Winter is now a judge on the Second Circuit Court of Appeals who could be assigned to hear the case.” See, “Brief: Judge made legal errors,” USA Today, April 7, 2004. Or if you were going to argue to Hon. Patrick Higginbotham (Fifth Circuit), the sufficiency of an expert witness disclosure made pursuant to FRCP 26(a)(2)(B), it might be good to know that he authored the relevant chapter on that rule in Moore's Federal Practice.

Other Resources

Judges sometimes give interviews, and their noteworthy conduct oftentimes is reported in the press. Therefore, it makes sense to take advantage of the vast news databases that exist online; what you uncover through such a search might be meaningful. For instance, in early 2008, a Georgia county superior court judge told a reporter from the New Yorker that, with respect to the defendant in case currently before him, “everyone in the world knows he did it.” See, “Judge in Courthouse Shooting Case Steps Down,” The New York Times, Jan. 31, 2008. The comment was supposed to be “off the record” but, in fact, was reported. As a result, the judge had to resign.

Because relationships, financial situations, personal and real property holdings and other information are contained in public records, databases housing such information might also be searched as well. For example, the original sentence of Terry Barton, the individual who was convicted for starting the largest wildfire in Colorado's history, had to be thrown out by the Colorado Appeals Court because the trial judge appeared to be prejudiced, based on the fact that he lived in a house that was affected by the fire and was forced to evacuate. The appeals court determined that the trial judge should have recused himself. See, “Wildfire sentence tossed Appeals court says Hayman culprit's judge should have recused self,” The Denver Post, Dec. 17, 2004. A public records search through real estate information easily reveals the appearance of such potential bias.

Timing is critical to every litigator ' and to his or her clients. So to uncover whether your judge has cases pending for more than three years, has had motions pending for longer than six months, and more, check out Civil Justice Reform Act Reports (www.uscourts.gov/statistics/civiljusticereformactreport.aspx).

The Judge As an Attorney

Finally, if the judge in question is new to the bench, you still have to conduct some research ' just in a different way. To date, President Barack Obama has nominated over 60 individuals as federal district court judges, and already 30 have been confirmed. If one of these new judges were assigned to your lawsuit, you would have no significant judicial history to research and learn from. But all is not lost ' just search for a judge who was formerly a practicing attorney ' as an attorney. That means learning about the lawsuits he or she handled, the clients represented, the other attorneys he or she worked with and against, and more.

Conclusion

Knowing as much as you can about the key players in your case is critical. Certainly, that includes witnesses, experts and opposing counsel. However, with the wealth of information about judges now online, it can oftentimes pay off to conduct similar research on them. Accordingly, take advantage of such resources in order to better inform your strategic decisions.

It seems like you can't read a legal publication these days without coming across an article about a judge in hot water. For instance, in September, it was reported that “[a] West Virginia Supreme Court justice has refused to take himself out of a case involving the state cap on punitive damages, even though he pledged during his election campaign that he would never vote to overturn the law imposing the cap.” See, “New Recusal Controversy in W.Va. High Court,” The National Law Journal, Sept. 27, 2010. Are these types of incidents simply occurring more often and, therefore, warrant reporting? We don't think so. Rather, we believe that the explosion of information about judges now available online has enabled researchers to uncover indications of possible bias, prejudice and other relevant tidbits. For instance, with respect to the above-noted incident, the justice's comments are easily found via a search online (and, notably, the justice ultimately did recuse himself. See, “Ketchum reverses course, recuses himself,” West Virginia Record, Sept. 28, 2010).

When it comes to researching information about a judge, several questions should come to mind:

• How knowledgeable is the judge about this area of law (i.e., has he or she handled this type of case previously)?
• Does the judge have a conflict of interest (e.g., via relationships with parties, attorneys, etc. or via a financial/property interest in the outcome)?
• Is the judge biased (e.g., based on expressed personal opinions, political connections (such as contributions to and contributions from))?
• Does the judge take the time and energy to drill down into the legal issues, or does he or she tend to “look for the easy way out” and resolve matters without addressing the substance of claims?
• Does the judge sit on cases or motions for extended periods of time, or does he or she resolve matters quickly?
• Does the judge rule on dispositve motions, or simply deny them as a matter of course and send cases to a jury?
• Does the judge have any particular likes/dislikes/idiosyncrasies that should be known?

Answers to these questions can sometimes play a critical role in how a litigator represents his or her client, but real research has to be performed. How to do it? Gone are the days when we could simply send a note to colleagues and local counsel inquiring as to their knowledge about, and experience before, an unknown judge ' and be done with it. Yes, their personal contact and knowledge is of critical importance, but in today's world, with so much information now available online, a litigator must do more.

Open Web Searching

Yes ' you do it ' run an “open Web” search on the judge's name. For instance, a quick search of the name of Federal Bankruptcy Judge Robert Kressel (D-MN) reveals that he has very specific guidelines that go beyond even the court's local rules. Specifically, he advises attorneys to avoid superfluous words, to never use the word “undersigned,” and even to “[p]lease use the possessive noun 'its' and the contraction 'it's' correctly.” (see, http://lawyerist.com/lawyerist/wp-content/uploads/2009/12/Judge-Kressel-Order-Preparation-Guidelines.pdf). Pity the young associate who submits a motion that violates these guidelines.

An open Web search might also lead you to sites, such as Judgepedia (www.judgepedia.org), that contain profiles of judges that provide information about their educational history, legal career, notable cases and more. You might also come across anonymous ratings at sites such as the Robing Room (www.therobingroom.com) or Courthouse Forum (www.courthouseforum.com).

However, be careful with information found on the open Web, especially those sites that are less well known. Just because it exists at “Larry's Web site,” does not mean it is true.

Biographical Information

After tapping your colleagues and friends, and then surfing the open Web, check out the various proprietary databases available online. Your first searches should be through more-official biographical information. Resources, such as the court's Web site, the Judicial Staff Directory, the Almanac of the Federal Judiciary, and the Web site of the Federal Judiciary Center, offer valuable background information (but note that official information about state court judges can prove harder to find). For instance, if you were handling a big tobacco lawsuit, wouldn't you want to know if the judge assigned to your case is on the local Board of Directors for the American Lung Association? (At least two federal district court judges are, or have been.)

Also consider checking out public profile information available at sites such as LinkedIn and Facebook. Relationships, friendships, or even comments revealed through such sites might be telling. In fact, in January 2010, a state court judge in Georgia resigned after it was uncovered that he had a “Facebook dialog with a woman who was a defendant in a matter pending before his court.” See, “Ga. Judge Steps Down Following Questions About Facebook Relationship With Defendant,” Fulton County Daily Report, Jan. 7, 2010.

When it comes to biographical information, also be sure to search for attorneys (in attorney biographical directories) who previously clerked for the judge handling your case. Such individuals are often willing to talk to you and can provide tremendous insight about the judge.

Authored Works

Opinions are great for ascertaining how a judge has addressed your issue in prior lawsuits. A powerful strategy ' one that has actually worked for us ' is to uncover all of a judge's prior opinions (whether reported or unpublished) on a particular issue. Then, if those opinions are favorable to your position, cite them (liberally) in your motion, taking care to point out after each citation that the judge authored the relevant opinion.

Opinions, however, can reveal so much more. For instance, one Federal District Court judge has cited Shakespeare over 30 times in his opinions (including at least twice in 2010). It's therefore not all that surprising that, in their motion for summary judgment filed with that judge a couple years ago, the authoring attorneys cited Shakespeare ' and that the motion was ultimately granted. See , Family Life Church v. City of Elgin , 561 F. Supp. 2d 978 (N.D. Ill. 2007). Citing Wikipedia in a motion filed before the judge who calls information from the Internet “highly questionable” would not be wise. See, Trademark Props. v. A&E TV Networks, 2008 U.S. Dist. LEXIS 87731, 7 & n2 (D.S.C. 2008). Similarly, avoiding the overuse of acronyms in briefs filed with a certain appellate court in California would be prudent in light of the comment of an appellate judge on that court who considers them to be the “uglification of the English language.” See , National Paint & Coatings Assn, Inc. v. South Coast Air Quality Management District , 177 Cal. App. 4th 1494, 1498 n1 (Cal. App. 2009).

In addition to opinions, some judges author other works, such as law review articles, treatises and even written materials for CLEs. Accordingly, search for those materials as well. For example, in its appeal to the Second Circuit in the lawsuit concerning the right of Maurice Clarett (a freshman running back at Ohio State University), and others similarly situated, to be drafted early, attorneys representing the NFL cited a law review article authored by one of the judges who potentially could have been assigned to the panel: “An added in-your-face element: to support their arguments, the NFL lawyers quoted from a law review article co-written by former Yale University law professor Ralph Winter. Winter is now a judge on the Second Circuit Court of Appeals who could be assigned to hear the case.” See, “Brief: Judge made legal errors,” USA Today, April 7, 2004. Or if you were going to argue to Hon. Patrick Higginbotham (Fifth Circuit), the sufficiency of an expert witness disclosure made pursuant to FRCP 26(a)(2)(B), it might be good to know that he authored the relevant chapter on that rule in Moore's Federal Practice.

Other Resources

Judges sometimes give interviews, and their noteworthy conduct oftentimes is reported in the press. Therefore, it makes sense to take advantage of the vast news databases that exist online; what you uncover through such a search might be meaningful. For instance, in early 2008, a Georgia county superior court judge told a reporter from the New Yorker that, with respect to the defendant in case currently before him, “everyone in the world knows he did it.” See, “Judge in Courthouse Shooting Case Steps Down,” The New York Times, Jan. 31, 2008. The comment was supposed to be “off the record” but, in fact, was reported. As a result, the judge had to resign.

Because relationships, financial situations, personal and real property holdings and other information are contained in public records, databases housing such information might also be searched as well. For example, the original sentence of Terry Barton, the individual who was convicted for starting the largest wildfire in Colorado's history, had to be thrown out by the Colorado Appeals Court because the trial judge appeared to be prejudiced, based on the fact that he lived in a house that was affected by the fire and was forced to evacuate. The appeals court determined that the trial judge should have recused himself. See, “Wildfire sentence tossed Appeals court says Hayman culprit's judge should have recused self,” The Denver Post, Dec. 17, 2004. A public records search through real estate information easily reveals the appearance of such potential bias.

Timing is critical to every litigator ' and to his or her clients. So to uncover whether your judge has cases pending for more than three years, has had motions pending for longer than six months, and more, check out Civil Justice Reform Act Reports (www.uscourts.gov/statistics/civiljusticereformactreport.aspx).

The Judge As an Attorney

Finally, if the judge in question is new to the bench, you still have to conduct some research ' just in a different way. To date, President Barack Obama has nominated over 60 individuals as federal district court judges, and already 30 have been confirmed. If one of these new judges were assigned to your lawsuit, you would have no significant judicial history to research and learn from. But all is not lost ' just search for a judge who was formerly a practicing attorney ' as an attorney. That means learning about the lawsuits he or she handled, the clients represented, the other attorneys he or she worked with and against, and more.

Conclusion

Knowing as much as you can about the key players in your case is critical. Certainly, that includes witnesses, experts and opposing counsel. However, with the wealth of information about judges now online, it can oftentimes pay off to conduct similar research on them. Accordingly, take advantage of such resources in order to better inform your strategic decisions.