Alan Kay Interview 3

Mr. Ernst: August 1, 1997. This is the third in a series of interviews of Judge
Alan Kay in his chambers for the Oral History Project of the District of Columbia Circuit.
When we left off last time you were in the U.S. Attorney’s Office and I know that for a brief
period of time you were in the office of the General Counsel of the Department of Commerce.
Would you describe how that job came up and what it was like?
Magistrate Judge Kay: When I was in the U.S. Attorney’s Office, I met a fellow
named Maury Dunie. I think he had been Assistant United States Attorney who had recently
been appointed as Deputy General Counsel of the Department of Commerce. He called me and
indicated there was a class action suit that had been filed against Standard Oil. (It was EXXON
then I think it was ESSO, I think Standard Oil of New Jersey.) The Secretary of Commerce also
had been named as a defendant because the Johnson administration had gone on record urging
American businesses to borrow money overseas for overseas projects rather than taking money
out of the U.S. As a result, I think Standard Oil had floated a bond issue in Europe to finance a
refinery they were building overseas. However, the rates being charged were higher in Europe,
so a group of unhappy stockholders filed suit against Standard Oil. As part of that Standard Oil
of New Jersey brought in the Secretary of Commerce as a third party defendant in effect saying,
we were doing what the government told us to do. Maury Dunie, who was then a Deputy
General Counsel at Commerce, asked if I would go over there to help them in defending the
Secretary of Commerce. That’s how I got to go to Commerce.
Mr. Ernst: And you could have said no, but you wanted to do it.
Magistrate Judge Kay: I could have said no, but I wanted to do it. Another
person with whom I had worked in the Public Defender’s office had moved over to Export
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Regulation Division in the Department of Commerce, so I knew someone over there. As I
thought this might be an entree into international law it appealed to me initially. The case struck
me as being interesting, and I had been in the U.S. Attorney’s Office for 3 years. I thought it
might be an interesting change.
Mr. Ernst: Was it typical to leave the U.S. Attorney’s Office after 3 years?
Magistrate Judge Kay: No, but I was close to being 30 years old and I thought if
I was going to go into private practice this was a good time in my career to do it. I planned to
stay at the Department of Commerce for maybe a year or two and then to seek my fame and
fortune in private practice.
Mr. Ernst: What happened with the Standard Oil case?
Magistrate Judge Kay: Our part was resolved when the Secretary of Commerce
was dismissed as a co-defendant. I moved on to other things in the Department of Commerce
General Counsel’s office.
Mr. Ernst: Should we talk about those things?
Magistrate Judge Kay: They are fairly mundane. One project I worked on there
was a change to the Customs headnotes. I’m not sure if you’re familiar with the duties on
products coming into the United States, but at that time Congress decided to improve the
economies of insular possessions by modifying the import duty regulations. Now countries like
the Virgin Islands and Saipan could have their products come into the U.S. duty free if the
products had doubled in value during processing. Congress was encouraging business people to
establish businesses in the insular possessions, and to have the indigenous population contribute
to the value of the product. The concept was well meaning, but in reality what happened was
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that the business people saw it as an easy and inexpensive way to avoid using workers in the
insular possession and still get the duty-free status. One area on which I worked for a period of
time was the quotas for watch companies. Watch manufacturers saw this as an easy vehicle to
bring watches into the United States duty free. The “movements” of watches, the internal
working parts, are generally very inexpensive. The most expensive part of the watch is the case
and the strap, or watchband. The watch companies would bring in the movements, the most
expensive being two to three dollars, and then put on a case which might be worth triple or
quadruple that. There was very little labor involved — packaging and then shipping — so
companies such as Hamilton, Benrus and Longines, and a big name company, Bulova, were in a
position to bring in fifty to a hundred dollar watches merely by putting a case on a movement.
The movement being made in Switzerland or the Far East, or Russia, and the case was
manufactured somewhere else. Ail the individual in the Virgin Islands did was to put the
movement into the case in an air-conditioned warehouse, and it would come into the United
States duty-free. So we held hearings and in effect created quotas so that the watch companies
had to vie for how many watches they could bring in duty free. We tried to restrict it.
Mr. Ernst: An international trade dispute does sound like it was something that
would give you an entree into an international law practice. Did you look for international jobs?
I take it at the time there weren’t necessarily jobs in the law firms which had labels on them.
Magistrate Judge Kay: Sure I looked. Perhaps I was somewhat naive in terms of
what I expected from working at the Department of Commerce. After I had been at Commerce
for about 9 months, I realized that the work was not particularly stimulating, and an individual
from a law firm — a fairly good one — made me an offer. I turned them down and shortly
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thereafter received another call from an acquaintance who suggested to me that his firm was
interested in developing a litigation department where there would be a variety of work that
would be interesting and stimulating. I would be the only litigation lawyer here in Washington,
D.C., and there would be another litigation group in Boston. I had made a commitment to stay at
the Department of Commerce one year, so on the 365th day I left the Department of Commerce
and went into private practice.
Mr. Ernst: And what was the name of the firm?
Magistrate Judge Kay: It was called McCormack and Bregman. Eddie
McCormack was the son of the Speaker of the House. Speaker McCormack was the former
Attorney General in Massachusetts who had recently run in the Senate primary against Senator
Ted Kennedy.
Mr. Ernst: Did you find the idea that it was going to be your show more than the
earlier offer you got attractive, or was it something else?
Magistrate Judge Kay: Being the only litigator was not the primary reason; there
were other reasons I turned down the first firm, which I would prefer not to discuss.
Mr. Ernst: I note that there were two people who graduated from George
Washington about the same time you did — Stanley Bregman and Tyler Able — did either of them
contact you?
Magistrate Judge Kay: Stanley Bregman contacted me. I had known him
casually at OW. Tyler Able I knew very well because we were both in the same legal fraternity.
He was the former chief of protocol in the Johnson administration, and Bregman had been
assistant to Senator Hubert Humphrey, so they were both politically-oriented individuals. I was
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not so politically oriented, although I had sympathized with the Democratic party. Stanley
Bregman painted a very promising legal practice and that appealed to me.
Mr. Ernst: In your role as litigator, was your work generated from the normal
course of other lawyers’ practice, or did you have to drum up your own clients?
Magistrate Judge Kay: One of the prerequisites was that I was not going to be a
rainmaker. I just didn’t have the base or network to go out and generate business, but certainly
Eddie McCormack was a quintessential rainmaker, as was Stanley Bregman. He represented a
number of quality clients. TWA, I remember, he did work for them.
Mr. Ernst: Was it lobbying or more regular legal work?
Magistrate Judge Kay: I think a lot of the work for TWA was lobbying work and
there were peripheral activities. The CAB was the regulatory agency at the time, and TWA’s
regulatory work was done by another law firm. But there were tort issues involving TWA’s pilots
that came up that I would work on.
Mr. Ernst: Where did you do most of your litigation? In D.C. or all over?
Magistrate Judge Kay: It was here in the District, with some cases in Virginia,
and also Columbus, Ohio.
Mr. Ernst: Did you work primarily in the federal courts?
Magistrate Judge Kay: I was primarily in the federal courts.
Mr. Ernst: You had been lawyering for some time before you actually joined the
firm. Were there any surprises for you when you entered private practice?
Magistrate Judge Kay: Not that I can recall from this distant perspective, just the
keeping records of hours worked (the bane of every lawyer’s existence). I remember that was
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tiresome, but otherwise I don’t think there was anything unusual that I didn’t expect. I missed
the collegiality I had at the U.S. Attorney’s Office because at the firm I was the only person with
litigation experience. For all intents and purposes at the time it was a small law firm, so it was a
one-person litigation department. For assistance I would tap into the people in Boston; there was
an individual named Ken Zimble and a fellow named Frank Larkin, an exceedingly talented
person who had been a dean at one of the law schools in the Boston area before coming on board,
and subsequently became a judge in Boston. So I would use them if I needed litigation resources.
Mr. Ernst: If you were sort of lonely as a litigator in the firm, were professional
activities important to you, or were you mostly concentrating on your work?
Magistrate Judge Kay: No, I was fairly active in the junior bar. I’m not sure
what it’s called, that part of the bar association for the younger lawyers.
Mr. Ernst: I think it’s now called something like the Young Lawyers’ Division
Magistrate Judge Kay: Either the Young Lawyers’ Division or the Young
Lawyers’ Bar of the voluntary bar association. Bear in mind that until ’72 the bar associations
really were voluntary bar associations. Don’t ask me which, one is the District of Columbia and
the other is the Bar Association of the District of Columbia. I was fairly active in that group. In
1968 the chief judge of this court asked me to become a member of its grievance and admissions
committee. At the time that committee was responsible for bar admissions in the District of
Columbia as well as any problems or grievances filed against lawyers, so in 1968 I joined the
committee as a bar examiner.
Mr. Ernst: Did you have any ongoing contacts with the district judges through
your work for the D.C. bar? The more I think about your current role as magistrate judge, it
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seems to me very important that you feel like a part of the federal judiciary, and that you always
had some contact with it and understood it, an inside view different from just a normally
practicing lawyer.
Magistrate Judge Kay: I had clerked for two federal judges, and as a result I
probably met in a professional capacity most of the judges in the courts. I was known by and
knew every judge in the D.C. Circuit. Not only at the district court level but also at the appellate
level. Then in ’68 when I joined the bar committee on admissions and grievances it merely
reinforced the relationship that I had with the judges. It reinforced the acquaintances I had with
many lawyers and turned them into friendships because as a committee of the court we met with
certain members of the court. There would be issues that came up where we would have to meet
with certain individuals. As I recall, there was a liaison judge. In effect, we were an ann of the
court, and we wrote the questions and graded them, and we divided the committee into two
components: the admissions side and the grievance side. I stayed on the admissions side until
1972 and then moved over to the grievance side.
Mr. Ernst: Did the committee have much discussion about the importance of
maintaining a really distinctive standard of admission to the bar in the District of Columbia? I
mean the word is now that the District of Columbia is sort of out of the business of establishing
its own standard. What a local bar has to decide on is whether there is a distinctive law and a
distinctive community that they are trying to maintain and preserve, or whether they are looking
for standards of competence that are general throughout the profession.
Magistrate Judge Kay: You want me to talk about 1968?
Mr. Ernst: I didn’t have anything in particular in mind. If I just stepped on a
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land mine, it was completely inadvertently.
Magistrate Judge Kay: No, you haven’t stepped on a land mine. I just have to
be circumspect in discussing it. 1968 was four years before the creation of the multi-state bar
exam which, as you well know, is a standard multiple-choice exam which is used by all but
perhaps three jurisdictions in the United States. Before then each state had its own exam which
consisted of an essay exam. We had six bar examiners who were each responsible for
developing and grading ten questions. Looking back with the hindsight of 25 years experience in
bar examining, I have to say that back then there was an inconsistency in examining. Each
examiner was responsible for developing questions, and there was little, if any, coordination
between bar examiners. There was no method of establishing consistency from one bar exam to
the next. There was no training of bar examiners. Perhaps you know what I mean as a professor.
You start crafting exam questions the first semester that you teach, and I hope, over the years
acquire some skill at crafting questions. Bar examiners are generally appointed, were appointed
at that time, with no view as to their abilities to write a question. Looking back, I shudder at the
quality of the questions and whether a February exam was more or less difficult than a previous
exam or the exam that followed. There was no internal mechanism of equating and scaling one
exam to the other. I arbitrarily assigned a certain number of points to each question on my exam
without really having the ability to know whether it was a IO-point question or a 20-point
question. I’m sure it was pervasive among all the bar examiners, so looking back I would have to
say that was a period when there was some inconsistency in the bar exam. It was also a period
when there was a lot of criticism as to the potential prejudice, actually racial prejudice, of bar
examinations. There was a growing concern among racial minorities that bar exams tended to
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favor the white majority. They were designed for people who came out of a white, middle-class
background. Prejudice just in terms of the fact patterns, be it a fact pattern involving a country
club, or golf, or something like that. It was also a period where there was a desire to find an
alternative mechanism of testing. Certainly people within the bar-examining community felt that
the current method of testing could be discriminatory, coupled with the fact that certain people
felt that bar examiners took time out to go and look at from where people graduated. People also
questioned whether or not there was some sort of racial designation on the bar application. It
certainly never occurred in the District of Columbia. I never had time to go and look as to
whether or not an applicant was African-American, or white, or Asian, but there certainly was a
perception among those taking the bar that bar examiners discriminated. So it was a interesting
time to be an examiner. Looking back, I think the exam was a problem in need of a solution. In
1972 things started to change when the MBE came on line, and I think since then there has been
a much greater emphasis in improving the quaiity of bar examinations and making them more
equitable.
Mr. Ernst: Were all ranks of the Washington bar interested in the work and
represented on the committee?
Magistrate Judge Kay: The bar examiners were primarily drawn from the
uptown lawyers. When I was on the committee there was one African-American, as I recall, and
there was a woman on the committee too. Judge Joyce Green was a bar examiner for a while,
and Patricia Roberts Harris who I attended law school with was also on the committee.
Mr. Ernst: I guess I have a very vague understanding of what an uptown lawyer
is. I know that would include criminal lawyers, and I have a vague sense that it’s a bunch of
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people on K Street today, but I don’t know if that’s necessarily the case.
Magistrate Judge Kay: No, we’re talking about the same arena of lawyers. The
uptown, K Street then being the H Street lawyers, as opposed to what today you would say are
the Pennsylvania A venue lawyers. There were lawyers from large firms on the committee. I was
from a small firm, and so was Joe McCarthy. Bill King and one or two of the other lawyers were
from larger law firms. I think the larger firms were better represented on the committee because
they had the time. It was a lot of work. By way of example, I recall one July exam when 700
people took the exam. With ten questions, which if my math is right, translates to 7,000 answers
to read. We got those answers at the tail end of July, and we were expected to grade them by
October and do everything else to still make a living. That was a lot of work. I recall spending
virtually every evening and 12 hours a day on Saturdays and Sundays to get them done. It was an
arduous chore; one that I don’t relish doing again. So in answer to your question, no, I don’t
think you would view the committee as being well representative of the D.C. bar. The people on
the committee were quality people, for whom I had a great deal of respect. I think Bill Gardner
was on the committee. Now Bill Gardner was an African-American who came out of a small
firm. Patricia Roberts Harris of course came out of a big firm. She had the luxury of time and
she was an indefatigable worker. For a private practitioner it would have been difficult to take
that job as a bar examiner. Whoever did the selection, I guess the chief judge had two
perspectives. One, someone who he felt could do the job, and two, someone who perhaps
wouldn’t have the will power to say no when asked to do it.
Mr. Ernst: But you did it for a while.
Magistrate Judge Kay: I did it until jurisdiction was transferred to the D.C.
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Court of Appeals in 1972. I managed to avoid getting involved in it again until 1980 when I was
importuned in a moment of weakness by Judge Catherine Kelly to whom unfortunately I could
never say no.
Mr. Ernst: Why did you do it? Was it simply because you were weak-willed
and couldn’t say no?
Magistrate Judge Kay: It was intriguing; it was interesting. I’ve always felt
strongly, and again in this day and age this is going to sound a little naive, about giving back and
a sense of responsibility toward the profession, so that crossed my mind when I agreed to do it. I
must tell you in all candor I felt ill-equipped to do the job. I did not have an academic bent, so it
was with a lot of trepidation that I said yes and then proceeded to move into the job. I was
replacing a fellow named Milton King, who was an old time lawyer, a delightful fellow whose
name you may have come across in interviewing Bernie Nordlinger. I think I went down to see
Mr. King, and I said I was going to be replacing him on the committee. He was quite
encouraging, and I said ten questions twice a year seems like a lot of questions, and he said, ” no
problem at all, no problem. You won’t have any problems.” I asked, “What do you do Mr.
King?” He said, “Well, I go around to X in my law firm, and I say: ‘I want two questions from
you; and I went to Bernie and I said I want two questions from you.’ That way it’s very easy.”
Of course, I didn’t have those resources.
Mr. Ernst: Were you a proponent of the MBE when it was first proposed?
Magistrate Judge Kay: Yes, but I approached it with mixed feelings. I think I
saw the MBE as a multiple-choice test and rebelled at the idea that anyone could ask legal
question with a multiple-choice response. That horrified me. The flip side of that was that it was
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proposed and marketed as an examination that was facially neutral in terms of the people taking
the exam. It could be machine graded, so regardless of the gender or race of the individual, it
didn’t make any difference. That eliminated what really troubled me — the perception that a bar
examiner would be discriminatory in grading. I must tell you I was deeply troubled when I heard
stories from certain applicants that they felt that we were discriminating in our grading or that the
examination discriminated against people of color, or somehow or other we had prior knowledge
as to whether or not an individual was white or black, and that we had a mind set to grade the
exams differently based upon skin color. That really troubled me, and I saw this as a mechanism
of avoiding that criticism. Personally, I knew from my own grading process that the accusations
were not true, but whether it’s true or not, if someone has that perception it is a terrible cloud
under which to take a bar exam. As anyone who has taken a bar exam knows, you have enough
tension without thinking you already have one or two strikes against you. So to that extent, I
thought the MBE was an improvement. I was deeply grateful that I would never have to take the
MBE after I looked at it. And I should say I remain grateful.
Mr. Ernst: Moving to a different topic, but still staying in 1968, do you
remember where you were when the civil disturbances broke out after Martin Luther King’s
death? I know that a lot of lawyers with criminal defense experience were asked to come in and
help with the defense.
Magistrate Judge Kay: I recall that period. I did not participate in any
representation. I was concerned at that time, in view of my relationship with the United States
District Court and the committee on admissions and grievances, to what extent I should get
involved. I’m trying to think if ’68 was the year Martin Luther King was killed.
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Mr. Ernst: April 4, 1968.
Magistrate Judge Kay: Anyone who lived in D.C. during that period could not
but remember the horrors when we had rioting and burning on 7th Street. I don’t recall that I was
involved or to what extent the courts were overburdened. It was handled out of then the Court of
General Sessions, not in federal court.
Mr. Ernst: I guess I asked only because it was an important moment at
Georgetown Law. The Prettyman Fellows were enlisted to do some of the same training you had
done in Legal Aid Agency, but on an emergency basis for lawyers who were brought in, and I
just wanted to ask.
– Magistrate Judge Kay: I took no active role.
Mr. Ernst: And your office wasn’t proximate to the courts so it wouldn’t have
been a factor. Well you were with the firm for over 20 years. In thinking about what questions to
ask you, I thought it was important to ask you to talk about anything that struck you as a major
event in the life of the firm or major cases, I suppose given the focus of these oral interviews on
the D.C. Circuit, one question is whether you had any cases before the D.C. Circuit. If there are
events in the life of the firm that are important so that we understand your biography, we should
talk about those.
Magistrate Judge Kay: There were no unusual cases that I had during private
practice. It was a jack-of-all-trades, master-of-none-type practice. I recall there were a few
appellate cases. There was a period of time in the late ’60s, early ’70s when the U.S. Attorney’s
Office got backed up in their appellate section, and a few of us were co-opted back in, so to
speak, to take on one or two appeals. I think I came back and handled a few appeals for the U.S.
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Attorney’s Office while I was in private practice. There were some interesting cases that I had, I
guess not in this circuit. I was fortunate enough to represent a correspondent for ABC. He was
not an employee of ABC; he was a stringer. His credentials were pulled by the U.S. military in
Viet Nam for alleged violations of the exchange currency rules. Those were regulations that
were honored more in the breach than in the observance, but this young correspondent had
alienated the military information section by writing stories that made them very unhappy. They
saw this as an easy opportunity to get rid of him, so they charged him with violation of the
exchange rate regulations and pulled his credentials. The case came to Eddie McCormack up in
Boston who sent it out to me, and I ended up representing Mr. Spence and went over to Viet Nam
for a hearing in Saigon. It was an interesting experience.
Mr. Ernst: What authority held the hearing?
Magistrate Judge Kay: It was before a tribunal that was constituted of a member
from AID, the Army, and a naval officer. I may say loosely it was a stacked court. Prior to the
hearing I recall having a meeting with an Army colonel who told me if my client’s credentials
were returned he would personally rip off the eagles from his shoulder. So I suspected from that
that I was not going to receive a warm reception and the colonel’s forecast was correct. It was an
aborted effort to get his credential restored. But it was an interesting case, and they kept us
waiting for 2 weeks, although the hearing could have been over in half a day. They made us wait
for 2 weeks, so I was over there for 2 weeks.
Mr. Ernst: And was there any appellate procedure?
Magistrate Judge Kay: No, there was no way of overturning it. I recommended
that he get on with his life, and he did and actually did quite well. He moved over to Japan and
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wrote from there.
Mr. Ernst: I suppose it’s hard to generalize, but was there a lot of work that
came that way through Ed McCormack?
Magistrate Judge Kay: Through Ed McCormack, yes. There was another case in
which the Speaker of the House was sued. I think the suit was brought by Representative Adam
Clayton Powell, who wanted to be seated but the House dared not to seat him, so I think he
initiated a law suit, and I was brought in to assist representing the Speaker of the House.
Mr. Ernst: And let’s see that would have been with U.S. Attorney’s Office.
Magistrate Judge Kay: I think there was a lawyer from the House involved, and I
think Justice was involved. It’s been a long time, but I recall it was a law suit by Adam Clayton
Powell against the Spea.1<:er of the House.
Mr. Ernst: When you litigated in oiher federai courts did you gain any new
perspective on District of Columbia? Or was it just another judge in another place? Did you say,
“Gosh, I never realized how distinctive the practice was.”
Magistrate Judge Kay: I ran into a judge-actually he was the chief judge in
Columbus, Ohio-who was very reminiscent of Judge Alexander Holtzoff, another martinet.
But it’s always a challenge to appear before different judges. If as a lawyer you engage in any
litigation you try to learn the frailties and strengths of any judge before whom you appear and
hope you can avoid stepping on the judge’s toes.
Mr. Ernst: You felt when you litigated in district court here in D.C. you had a
pretty good sense of the judges from your prior work, but new ones are appointed all the time. Is
there a case that you can recall that would give us insight into whether your impression of the
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judges from the inside had changed?
Magistrate Judge Kay: Well, saying this with a degree of caution, I think the
quality of the judges improved in the 1970’s and 1980’s. There were fewer political appointees,
and we acquired some very fine judges. I recall appearing in one case before Judge Gesell and
was exceedingly impressed with his ability. He was a tough judge. He did not go gentle with
me, but I certainly respected his courtroom management and his skills as a trial court judge.
Mr. Ernst: Does the local bar get some of the credit for the improvement of the
bench? It’s a long complaint of Washington lawyers — I’ve seen it in the 19th century, where the
Washington lawyers just got tired of being the equivalent of a territorial court out West. The
territorial courts were dumping grounds for senatorial courtesy appointments. There were strong
and weak judges over the 19th and early 20th centuries. I always thought it took a strong and
active bar to have a determinative effect and I wondered whether the uptown lawyers were such a
bar. In your period, do you recall laments among the bar about being consulted or not being
consulted when there was an appointment?
Magistrate Judge Kay: I’m trying to recollect; I don’t have any specific
recollection of general consensus within the bar that there should be more consultation. I think if
you spoke to any individual member of the bar he would have told you that as a bar association
we should have greater input. Bear in mind that in 1972 the integrated bar was in its formative
years and was beginning to establish itself as having muscle within the legal community. I
recollect that there was great involvement by the ABA. I may be off base, but I recollect the
attorney general turning to the ABA for some sort of assessment as to the quality of the person
who was being nominated. You may have some better sense than I do as to when that occurred.
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Whether or not credit for improving the nominees would go to the White House or to the
Attorney General I don’t know, but looking back my sense was that there was a feeling that
people appointed to the federal bench were less political; they weren’t congressmen; it was not a
dumping ground for ex-politicians looking for a place to park themselves. But I think that is a
national change. Clearly without senators in D.C. there was a more neutral approach to
appointments. During the ’80s, I would venture to guess that notwithstanding the fact that we
didn’t have any senators, the majority of people appointed to the U.S. District Court were local
people. I’m trying to think who was appointed in the ’70s and ’80s. Judge Gasch was local; he
came out of the Corporation Counsel’s office. Judge Gesell was local, uptown law firm. Judge
Pratt was local. A number of judges came over from D.C. Superior Court — two Judges Green -as
opposed to the ’50s where you could look at our court and see former Congressman so and so,
or former Governor so and so. That waned in the ’70s and ’80s, and to that extent I think there
was a greater emphasis on quality.
Mr. Ernst: Did you pay attention or track the decisionmaking that produced the
Court Reform Act and the change in the district court’s jurisdiction?
Magistrate Judge Kay: You mean in 1972. I tracked it but not with great
emphasis. For the first time we were creating a second-tier state court system for the people in
the District of Columbia. Certainly this was exciting for those people who saw themselves as
District of Columbia residents because they were getting a court which had general jurisdiction at
the trial level and their own court of appeals, which elevated the stature of the local courts and
was resonant with the evolving desire for home rule. There was an interest in who would serve
on the newly created court. About 20 or 30 people were going to be appointed within a short
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period of time and there was a question as to whether or not there was going to be a requirement
of D.C. citizenship. The initial appointees were grandfathered, but any subsequent appointees or
appointments made within a period of time — I don’t recall specifically — to the superior court
and D.C. Court of Appeals would have to be residents. There was a lot of grumbling about that.
People felt if they lived in Arlington, or Montgomery County, or Prince George’s and their
practice was in the District of Columbia they should have an opportunity to serve on the court.
Mr. Ernst: You didn’t anticipate it changing your practice one way or another?
Magistrate Judge Kay: No, not at all. To the extent that I would get involved in
probate practice, I was moving from one court to the other. I knew virtually every one of the
judges of the new Superior Court and the D.C. Court of Appeals. Many of them were colleagues.
I could rattle off a whole litany of names of people with whom I served in the U.S. Attorney’s
Office: Tim Murphy, Joe Hannon, Don Smith, Fred McIntyre. They weren’t necessarily
contemporaries in the sense of being my age but they were within a ten-year span of my age. I
knew them from either the U.S. Attorney’s Office or having come in contact with them when I
worked in the court for a number of years. So I felt very comfortable not only with the court but
also with the quality of the judging we would get.
Mr. Ernst: Did you feel it was a good move for the federal district court?
Magistrate Judge Kay: I thought it was a good move for the district court
because it was assuming, perhaps for the first time, the constitutional role that had been ascribed
to the federal court system. It had been a unique court. It partook of state court jurisdiction
which was an aberration in the federal jurisdiction making for a much more interesting practice
for the judges.
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Mr. Ernst: That’s what I was wondering; you said an aberration?
Magistrate Judge Kay: It was an abberation, but it was an opportunity. It was an
abberation in the sense it was unique.
Mr. Ernst: Like Judge Skelly Wright doing landlord-tenant cases.
Magistrate Judge Kay: That’s right and doing it very happily, as opposed to
being a judge down in New Orleans. Yes, you had that aspect to but I’m sure from the judge’s
standpoint it was challenging. On the other hand, it gave them a more demanding calendar
because they had the run-of-the-mill, routine street crime. I did a study in the early ’60s when I
was in the Public Defender office, and as I recall we used to get about 1,200 criminal indictments
a year, which I think is in excess of what is handled by the court today. Now, of course, you
didn’t have the volume of drug cases and you didn’t have the volume of major white collar crime
cases so they were able to handle the unauthorized use of motor vehicle, rape and murder cases
along with constitutional challenges and administrative law cases. But, again, you didn’t have
the volume of civil rights cases that we have today; you didn’t have the Civil Rights Act. (Well
you had early civil rights legislation but not all the Title VII or the ADA cases.) So it was a more
stimulating calendar.
Mr. Ernst: What about for you? You can’t hold things constant, as you just
pointed out. All the legislation that happened that was in place in the 1970’s. So a clerk coming
in from a district judge would by virtue of those acts have a very different experience than you
had. What would have been different in your career if, all things being equal, the jurisdiction had
been given over to the District of Columbia and you weren’t seeing those cases as a clerk when
you were clerking for Holtzoff and Jones?
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Magistrate Judge Kay: What if? In my own personal career I don’t think it
would have made a significant difference. My career path probably would have been the same. I
say that because, aside from the public defender experience, the work I did in the U.S. Attorney’s
Office formed the basis of my going into litigation. I didn’t end up in a heavy litigation career,
but when you go into the U.S. Attorney’s Office you are seen to be a litigator regardless of the
nature of your work. The majority of the time I spent in the U.S. Attorney’s Office was on the
civil side. I spent a year in appellate, where the majority of cases were criminal. Other than that I
didn’t handle any criminal cases at the trial level in the U.S. Attorney’s Office. My criminal trial
experience was as a public defender. When I went to the U.S. Attorney’s Office I made it very
clear to the principal assistant U.S. attorney that I was not desirous of going into the Criminal
section. Everyone who went into the U.S. Attorney’s Office as a young lawyer was anxious to
become a criminal prosecutor. I had that catharsis in the Public Defender’s office, so to go and
work on the civil side was exciting for me. The head of Civil shared that feeling; he thought that
it was an exciting area, too.
Mr. Ernst: Did you ever appear before a magistrate when you were a litigator
that you can recall, and if so under what circumstances?
Magistrate Judge Kay: I never appeared before a magistrate; they were called
commissioners back them. The commissioner who was in place when I first came into this
courthouse was a fellow named Commissioner Splane. I did not appear before him because in
my role as a criminal defense lawyer we did not get cases until the defendants were already
indicted. Since the commissioner handled the case at the preliminary stage, we did not appear
before them, because in those days a defendant was not entitled to a lawyer at the initial
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appearance. The rules were changed in the early ’70s and defendants were entitled to
representation by counsel at the initial appearance. I never had occasion to go before
Commissioner Splane or to get involved in a bond situation.
Mr. Ernst: So you came into the job as a magistrate without any preconceived
notions of your role?
[END OF SIDE ONE OF TAPE]
Mr. Ernst: When the tape left off I was asking you if you had any preconceptions
of the magistrate’s role when you came to the job, and you were explaining that you had never
appeared before a magistrate and the reasons why and that was the case.
Magistrate Judge Kay: That indeed was the case. I never had an occasion to
appear before a magistrate or a commissioner. While I stated that I had little practical or actual
knowledge of what magistrates did, I was not unfamiliar with their work because I had known
Judge Margolis from law school days and he had become a magistrate in this court. I had spoken
to him on a number of occasions, so I had some general idea of what magistrates did. Perhaps in
fairness to myself the role of the magistrate changed rapidly between the ’60s, ’70s and the ’80s.
In the ’60s, when I was first in the courthouse, the role of the commissioner was literally that of a
committing magistrate who would hold bond hearings and be the first judicial officer seen by
someone coming into the criminal system. That has evolved into a position in the ’80s and ’90s
where the magistrate judges try cases with jurors, unlimited civil jurisdiction, still limited
criminal jurisdiction but a more expanded role in the criminal system: trying misdemeanors, petty
vices and ordinary hearings. Our responsibilities changed so rapidly that unless someone was
practicing in the criminal field or had extensive civil practice in the federal system, it was not
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unusual to be unaware of what magistrate judges responsibilities were. One of the problems that
I see nationally with respect to the role of magistrate judges is that the majority of people in
litigation practice are not fully cognizant of the statutory authority of magistrate judges. For
instance, there are many, many lawyers out there who are not aware of the fact that magistrate
judges can try civil cases with a jury. The lawyers who are concerned about delay in civil trials
have an advantage in those jurisdictions where they have one and sometimes more magistrate
judges because you can get a civil trial very promptly, if you want one. The reality of the
situation is that many defendants, particularly institutional defendants, are not necessarily
anxious to have an expedited trial. When there is a question of liability and the likelihood of
having to pay money, and perhaps a substantial amount of money, paying the judgment later
rather than sooner is something I think they prefer. But now I’m sounding cynical.
Mr. Ernst: I want to come back to those issues. I thought to ask you whether
you had appeared before a magistrate and I thought to ask you about your appearances before and
working with Article ID judges. It didn’t occur to me to ask you about your appearances before
other kinds of judicial or administrative officers with judicial responsibilities. Some of the
constitutional law in the area says essentially, “Look, we don’t have to worry about magistrates
intruding on the domain of Article III judges because they are in the midst of the judiciary, and
they are going to have Article ID models for judging.” So I have to ask, were there any
administrative cases that you were involved in where you said, “Boy, if this is what they think
due process is, I don’t want any part of it.”
Magistrate Judge Kay: Well there was a period in the ’80s when I appeared
regularly before the International Trade Commission, the ITC. I was working with an attorney
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whose practice was exclusively trade law, and I worked with him for approximately 4 years,
primarily representing Taiwanese businesses before the ITC. At the time there were a lot of
complaints that foreign competition was hurting their business, causing unemployment, and they
were in a position under the statute to bring an action against foreign industry, claiming that they
were being damaged and were seeking relief. In many instances it would be temporary relief,
putting quotas on imports or restricting imports in some fashion. In addition, I would appear
before the Federal Trade Commission (FTC) and administrative law judges at the FTC. So I had
many occasions to appear at the administrative level.
Mr. Ernst: Did you prefer litigation in court to appearing before the
commissions?
Magistrate Judge Kay: I preferred litigation in courts. The appearances before
administrative law judges and the ITC commissioners was a much more reiaxed practice, but on
the other hand, it was an “anything goes” type proceeding, which struck me as somewhat
unstructured. I’m being overly general. There were some administrative law judges who were
very structured in the way they ran their hearings. But by and large it was an anything goes
situation, which was in stark contrast with what I was used to in courtroom practice. The quality
of the administrative law judges was as spotty as one would find with Article Ill judges or state
court judges.
Mr. Ernst: Certainly in your practice you saw judges who ran courtrooms with
quite a range of formality, so you didn’t need to see administrative law judges to know of some
other way to run a court.
Magistrate Judge Kay: No, I didn’t.
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Mr. Ernst: Well, would you describe the selection process when you became
magistrate judge as you experienced it?
Magistrate Judge Kay: I had been in private practice for more than 20 years and
I was interested in doing something different. On a prior occasion in the late ’80s I was asked if I
would be interested in applying for a position as a magistrate judge. I think at that time the title
was just magistrate, not magistrate judge. The idea of applying for a judgeship struck me as
peculiar. But that was the process and as to my initial reaction, well I’m not really sure. I had
considered being a judicial officer earlier on in my career. I had a somewhat narrow perspective
that a judgeship was a very structured position, and in its own way, very limiting. I knew from
prior experience that the type of problems that came up were repetitious in many respects.
Balancing that against 20 years of a broad-based private practice which had afforded me a variety
of activities, a magistracy was not, as far as I was concerned, a career that I was looking to with a
lot of interest. So the first time it was mentioned to me I gave it some thought, then moved on
and gave it no more thought. Then in 1990, it was mentioned to me again and this time
presented as a position that offered a broad spectrum of responsibilities. There was a lot of civil
work involved and the jurisdiction had expanded. It struck me as intriguing and thought in my
waning years it might be fun. So sometime in late 1990, I applied.
Mr. Ernst: Did a judge invite you to apply or how was it done?
Magistrate Judge Kay: A judge of this court mentioned it to me, telling me that a
position was coming up.
Mr. Ernst: What was the selection process like after you applied?
Magistrate Judge Kay: I was advised that there was an application form and I
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picked it up. It was a very extensive application form. It was daunting just to look at it. I
learned very rapidly that the mechanism for selecting magistrate judges was by statute. The chief
judge was to select a panel when a vacancy became open. It’s a merit-based selection. The panel
consisted of around six individuals, of whom at least one or two have to be non-lawyers,
members of the community. The panel would cull through the applications and ultimately present
to the district court a number of candidates. My understanding is that the chief judge will say,
“Send us a group of five lawyers.” The committee winnows down the group, depending on how
many people apply for the position. They interview those that they deem likely candidates, and I
think in my situation they must have interviewed approximately 15 of us. So they interviewed
me; I was one of the 15.
Mr. Ernst: You interviewed with the judges or with the selecting panel?
Magistrate Judge Kay: I interviewed with this paneL It was a committee, but at
my interview I think there were two judges. Sometimes judges will participate in interviewing
process. I subsequently learned that I was one of the individuals whose names had been
submitted to the court. Finally the active members of the court vote on a nominee. It was a merit
selection process but in the end it becomes political in the nicest form of that word because the
judges vote and select one of the individuals.
Mr. Ernst: And is there no formal interviewing of you by the judges after the
selection process?
Magistrate Judge Kay: Nothing precludes that, and I think the judges can
conduct interviews. In fact, I think in this last go-round that there may have been some
interviewing by district judges of the prospective candidates. But let me backtrack. One of the
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judges asked me if I would meet with him. Neither of us knew each other, so he invited me to
have a brief chat with him.
Mr. Ernst: Was it hard for you to wrap up your work with the firm?
Magistrate Judge Kay: Not really, but there were a number of clients where it
was very difficult to say good-bye. I had a very good relationship with them, and they were not
very happy that I was abandoning private practice of law. Placing them with another lawyer with
whom we would both be comfortable was difficult. In terms of time frame I knew in early May I
had been selected, and I had until certainly early September to wind up my private business.
Additionally, I had applied in late 1990 for bar counsel. I had recently become chair of the policy
committee of the ]\,fl>RE, the multi-state professional responsibility exam, because of my
membership on the board of directors of the National Conference of Bar Examiners. I had an
interest in professional responsibility so when bar counsel came up I applied, Fred Abramson
and I were the two final candidates. I don’t know if you knew Fred Abramson, but he was just a
superb individual and I think when I interviewed with the board of professional responsibility, I
told them if I were in their shoes, I would select Fred Abramson, and they did. I like to think they
took my advice. Fred was just a superb individual who died tragically a year later. They called
and spoke to me at that time. I think they called me the day after I had been selected for this
position.
Mr. Ernst: And what attracted you to the bar counsel position?
Magistrate Judge Kay: I thought bar counsel was an exciting position to have.
There was a general consensus about two problem areas. One, there appeared to be an inordinate
delay in processing of complaints, which I thought perhaps I could help expedite. And two, there
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was a perception that bar counsel tended to focus more on struggling sole practitioners and that
the attorneys in the so-called uptown law firms were able to engage in conduct that the bar
counsel winked at. I don’t know if that’s necessarily true, but that perception certainly existed,
and I thought that I could do a reasonably good job. Looking back at the job the current bar
counsel has done, I don’t know whether I could have done anywhere near as well as he has. I am
a great admirer of current bar counsel.
Mr. Ernst: Well, we talked about the fact that there were precursors to
magistrate judges. We also talked about the fact that the role of the judge had changed
dramatically since you started practice. The Civil Justice Reform Act was being passed in
January 1990, the same year in which you were contacted about the magistrate judgeship. This
makes me wonder if you felt when you started working as a magistrate judge that you were
pioneering, that you were involved with institutions ihat were starting from the ground up? I was
just wondering whether you know what expectations there might have been about what a
magistrate could or should do, or if there moments when you felt you were creating an
institution?
Magistrate Judge Kay: I felt that while the size of the District bar had exploded
in the previous 15 years, there were a number of people in the bar who knew me or knew of me,
and perhaps I could bring to the position a reputation that I would be fair. My gray hair might
also help; age being a factor as to whether or not they would readily accept me as a judge. There
was the excitement of an expanded jurisdiction with the hope that perhaps the bar would accept
magistrate judges. Clearly, we’re in the position where lawyers can judge shop, and, I think
every litigator would love to be able to select his or her judge. I don’t think this is unknown to
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the bar who are practicing before us; that they can say to the trial court, to the district judge, we’ll
consent to go have this tried before a magistrate judge, and by the way we would like to go
before Judge A, B, or C. Personally I don’t see any problem with that. If you’re going to consent
to try the case before a magistrate judge, then perhaps you should additionally have the right to
designate which magistrate judge. I’m sure there are people who would disagree with that and
say that if you consent to try before a magistrate judge then whoever is next in line to take the
case should be assigned the case. I don’t subscribe to that because of how Congress has
established my jurisdiction. If you’re going to litigate the case you should be able to select which
magistrate judge hears the case.
Mr. Ernst: Is that practice general among the district courts or does it vary in
other jurisdictions?
Magistrate Judge Kay: It varies by district. I would prefer that the utilization of
magistrate judges not vary as much from circuit to circuit. In some circuits, for instance, the
magistrate judges go on the wheel along with the Article ID judges. When the case is ready for
trial the litigants opt out of the magistrate system, if you will, and say, ” I want my case tried by
an Article ID judge.” In those situations the magistrate judges get the case from the day it is filed
and handle the case, up to date of trial, and then if the parties want the case tried by the judge
who has been managing the case, they can stay with the magistrate judge, or if they so elect, they
can have it tried before an Article ID judge. They don’t know necessarily which Article ID judge
they will get, so perhaps they are going from a known to an unknown quantity. In other circuits
there are magistrate judges who spend the bulk of their time doing prisoner litigation.
Mr. Ernst: Does that depend on the particular plan that is adopted in a particular
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circuit?
Magistrate Judge Kay: It depends on the volume of business, and on the
jurisdiction. You have certain jurisdictions where you have a lot of prisons and a lot of prisoner
litigation. You have some jurisdictions where you have a lot of Social Security cases. The
Administrative Office of the U.S. Courts has on many occasions concluded that magistrate
judges should service the district courts in a broad capacity and not become specialists or focus
on one area. I think that is what appealed to people who become magistrate judges. As I
understand it the caliber of the people who now apply for magistrate judgeships, has vastly
improved over the last 10-15 years. Just by way of example, for the last two magistrate judges
positions in this court, including mine, I think there were 99 applicants for my position and I
think 110 or 115 for Judge Attridge’ s position. I think the most recent application list for district
judgeship before Congresswoman Norton’s panel was 26 applicants. Also, since now there is no
D.C. residence requirement for magistrate judges positions, that may have had some impact.
Mr. Ernst: Did you give much thought to the term and tenure of office when you
were making the decision to come in?
Magistrate Judge Kay: Not really. My understanding was that if your behavior
was reasonable and in all other respects you performed reasonably well the 8-year term would be
renewed automatically at the end of the term. Also, at that time in my career, I didn’t know how
many terms I had available. I don’t believe in retirement as such, just in switching and doing
something new. I would hope that I would be able to stay in my current position as long as I can
perform a helpful service and enjoy it.
Mr. Ernst: I was wondering because 8 years takes you through a good part of
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your career. I’m sure for many lawyers lawyering is what keeps them alive, but who knows what
you do when you’re 65. If it had been a shorter term would you still have taken the job?
Magistrate Judge Kay: I don’t think that was a factor.
Mr. Ernst: It was the work mostly?
Magistrate Judge Kay: Yes. As an individual I guess I don’t project that far into
the future.
Mr. Ernst: Well, let’s see, we said that one of the things that you thought was
important when you came in was that you had gray hair, that you had been lawyering for a while,
and that although the bar had expanded dramatically, particularly in the last few years, that you
were a known figure in the legal community who could work with the existing bar. Were there
other traits that you think were desirable that you brought to the job? I know this is asking you to
boast, but I am asking you to boast.
Magistrate Judge Kay: And I am going to decline gracefully.
Mr. Ernst: Do you want to generalize and say what qualities magistrate judges
should have or should not have?
Magistrate Judge Kay: Well, much of what we do on the criminal side is fairly
routine, in the sense that it’s repetitive and not terribly demanding. We handle initial
appearances of people before the court, have them advised of their rights and set bond, hold
detention hearings if they are held without bond, followed shortly thereafter by a preliminary
hearing where probable cause is determined. Other criminal matters are petty offenses, such as
people who demonstrate in front of the White House or at the Smithsonian, hearings on violation
of supervised release from an Article ID court, consent hearings on violation of probation, and, of
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course, your own hearings on violation in cases where we had taken the plea and done the
sentencing. One thing that I carried with me from my public defender days is my belief that the
perception of fairness is given to a defendant when he or she first steps into a courtroom and
meet a judicial officer. I always felt that whether the defendant believed he or she was getting a
fair deal was very, very important. I felt, however prosaic my telling them about their rights, that
it was very important that they should feel they were being treated with fairly and with respect. It
may sound a little hokey, but it was important and I tried to adhere to the notion that however
despicable the act that they committed, under our system of jurisprudence they are entitled to be
treated fairly and equally. If they did wrong, they were going to be punished as they should be,
but from the law’s standpoint, we’re going to treat them as human beings. Hopefully, that may
generate a change in their behavior down the road. That was something I carried over from
many, many years, and I think I tried to maintain ihat.
Mr. Ernst: Some of those criminal duties, I understand, date back to the
commissioner system. Would the job be as interesting and as desirable if you didn’t have civil
trials by consent?
Magistrate Judge Kay: I think it would not have the appeal. Civil work is
challenging, interesting, and there is a great variety; I find it fascinating. I have engaged in a lot
of settlement activities as a judge and it has become a fair part of my calendar, as a matter of fact.
I have a broad range of activities as a magistrate judge, excluding felony trials which would be
interesting, but I cover a wide spectrum, and I find that after 6 years I find it just as exciting now
as it was when I started.
Mr. Ernst: Was this role as mediator something — going back to the pioneer
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metaphor — that developed? No one probably anticipated what was going to happen with
magistrates.
Magistrate Judge Kay: That’s true. I’ve always been interested in ADR as an
alternative to resolving disputes with a judge or a jury. That goes back some time.
Mr. Ernst: Had you done some mediation in private practice?
Magistrate Judge Kay: I was a mediator in Superior Court dating back to ’88,
when they started their revolving open door program in Superior Court. Then they started an
ADR program out of the district court, and I became a mediator in this court. I mediated a
number of cases, and I think I was an arbitrator in one case. I found it stimulating and exciting
because the mediator has no intrinsic authority. You are required to use your intrinsic skills to
bring people together to help them fashion a remedy . Dealing with people, one on one, was very
exciting. People who find themselves in court bring to that process a lot of contention. They are
disputants, they don’t like one another. To break down those barriers and get them to move into
a conciliatory process is quite a challenge, and that’s what I liked about it.
Mr. Ernst: Would you want to discuss that process in context of the First Union
case? If The Washington Post can be trusted, Judge Green was apparently so happy with your
performance that she offered you a chocolate bar.6 Were parties pretty far apart?
Magistrate Judge Kay: That was an embarrassing comment. Just to give you
some background, I think I was in court on another matter, and I got a call to come off the bench
because Judge Green wanted to speak to me. She asked me if I would be kind enough not to go
back on the bench — to defer what I was doing until later on in the afternoon — because she had a
6 The Washington Post, June 19, 1993, p. Cl.
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full courtroom. It was a dispute involving the District of Columbia mayor’s office and First
Union Bank. They were in the process of taking over another bank, in full compliance with the
federal reserve regulations, but a question arose as to whether or not the District of Columbia had
any veto rights and to what extent the banking committee of the D.C. Council was part of the
approval process. She had to rule on either a TRO or preliminary judgment, and would I please
see whether or not I could bring about an amicable resolution short of having to make that ruling.
So I went up to her courtroom, and much to my chagrin, saw there were about 100 people sitting
there. Little did I know that of that group maybe 30 of them were actually directly involved in
the case. They were a vast array of people representing the D.C. Council — a D.C. Council
member was there, as were representatives from the mayor’s office — and a bevy of lawyers
representing the bank. I think I placed people in about three different rooms, engaged in shuttle
diplomacy from one to the other, and by about 2: 15 I had effected some sort of a resolution of
their dispute. I had arranged for a member of the D.C. Council to make contact with his
colleagues who had already dispersed for the weekend. I told them they had to make contact
because they were convening Tuesday morning, and I said there would be a vote early Tuesday
morning to approve the plan. He said he wasn’t sure they would approve it, but I strongly
suggested this person get the necessary votes over the weekend, and it all worked out. Judge
Green was able to resolve the matter without having to rule on the motion, but she was concerned
that I had worked through the lunch hour. She knew I was a chocoholic, so to take care of my
growing appetite she offered to buy me a bar of candy, which she made good on sometime later –
– I had a pack of M&Ms. First Union was one of the early cases I got into with mediation, and
then of course things mushroomed.
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Mr. Ernst: How do you calm people down when you see them after the litigation
has started and have gone through some motions normally?
Magistrate Judge Kay: There are people who are much more sophisticated than I
am in terms of mediation but here are some of the things I see as important to the process. The
parties have to believe that the mediator is a person of integrity. They have to feel that he or she
can be trusted because, in effect, they are giving up their right to have a court resolve their
dispute, and they are putting their faith in you, the mediator, to somehow bridge the dispute. So
they have to trust you. That’s very important. They have to feel that if they tell you something in
confidence you will honor that. This is something of which I am very cognizant. I will not give
my opinion of a case. When you go to trial, a judge or a jury is going to decide who is right and
who is wrong. The mediation process doesn’t require that finality. And I tell them that right up
front, “Look I am not going to make a judgment call as to whether you Mr. Plaintiff, or you Mr.
Defendant, are right or wrong. That’s not the issue before me. If you want to apportion blame or
liability, go to trial.” I tell everyone who comes before me when I’m sitting as a settlement judge
or mediator, that they have a right to go to trial and lose. I tell them that I’m not attempting to be
funny or facetious. I tell them, “You sit at this table with me, and you believe after having
consulted with your attorney that you are going to win because your lawyer has told you, in the
lawyer’s parlance, which I guess they learned at some race track, that you have a 50-50, 60-40,
70-30 chance of prevailing. Your opponent, sitting right across the table from you, right there -you’re
looking at him or her — his or her lawyer has told him or her the same thing. I will assure
you; I will absolutely guarantee both of you that both of you are not going to win. Now the
process that we are going to engage in is to effect, if we can, a resolution whereby perhaps you
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are not going to get, plaintiff, all that you yvan~ and you, defendant, are not going to walk away
unscathed. But perhaps you can both walk away feeling that you haven’t lost. That’s the process
we’re going to go through. There is no guarantee that it will come to pass, and if it doesn’t, so be
it, you’ll go off to trial, and you’ll get your win/loss situation. Now what you say to me stays
with me; you cannot go before some judge at some later time and say the mediator said this and
the mediator said that. Then I tell them to tell me about the case. Now I may know a lot about
the case, or I may know very little about the case. I may not be an expert, and in all likelihood, I
probably am not an expert in that area. A lot of programs will say that the mediators should be
experts in Title VII, but I stay away from it. I ask them to tell me about the case because I want
to know a number of things. I need to know how emotional they are, and of course everyone gets
emotional about their case, even the third-level supervisor in a monster entity is emotional,
particularly if the issue is discrimination. So however outrageous the company, however horrible
the product they sell or make, or if they feel very strongly about toxic waste or things like that,
I’m still dealing with human beings who have feelings. I need to know how they feel about the
case, how hurt they are, what kind of relationship they have with their lawyer, in effect who is
controlling whom.
Mr. Ernst: Do you do this with a lawyer in the room?
Magistrate Judge Kay: I’m doing it with all of them in the room. That’s how I
invest the first half hour or hour of a mediation session. I see glances. Hopefully, at the end of
that first session, I know whether the lawyer or the client is going to be the control. Sometimes a
lawyer can be an inhibiting factor, on both sides. Bear in mind that in a dispute with an agency
or a corporation I may have a trial lawyer, and I may have in-house corporate counsel. Now I
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know for a fact that the in-house corporate counsel has written numerous memos to his or her
supervisor, or the president of the company, or the vice-president of the company, or the
personnel department, giving a whole litany of reasons why this case has to go to trial and how
the defendant is going to prevail. At some point in this mediation process I’m going to be asking
the defendants to effect a compromise which may entail rehiring, and paying money, and the
individual lawyer sitting there has written numerous memorandum saying, “Don’t pay a nickel.”
At this point, I know the lawyer feels very uncomfortable with going back to his superior and
telling him that this crazy judge wants us to come to a negotiated agreement. The president, or
whoever is in charge, is going to say to the lawyer, “But if we’ve got a winning case, why are you
going along with this crazy judge who is suggesting that we pay money or we hire people?”
That’s when I have to evolve a mechanism that will have a neutralizing effect, or woo them into
a re-education.
Mr. Ernst: What can you offer that general counsel?
Magistrate Judge Kay: I say the same thing to both sides, recognizing that,
generally speaking, it goes in one of the plaintiff’s ear and out the other, that if a case is going to
settle, the case will settle on the basis of economics not emotions. I tell them, “General counsel,
you may be absolutely right that if you go to trial you will prevail. But do you know how those
8, 9 or 10 people who will sit on that jury are going to react to you, or your president. You’re a
lawyer, even a law professor who doesn’t do much litigation. Can you tell me that if you go to
trial you will have a guaranteed slam dunk?” Most lawyers will tell one another there is no such
thing as a slam dunk. You have no idea how a jury is going to react, or for that matter, a judge.
In any case you are always at risk and, while you may well prevail in the abstract, to get to the
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court of appeals it may cost you $300,000. Doesn’t it make sense from a business standpoint to
try and resolve this case if you can get away with paying only $50,000 or $60,000? Now
occasionally people will say they would rather give their lawyer $50,000 to$60,000, and if that is
the way they feel then there is no point in discussing a settlement. I will only seek to negotiate or
have the parties negotiate a compromise if there is a genuine desire to resolve the case. If they tell
me they have a slam dunk, or alternatively, that there is no basis to compromise because they feel
compelled to establish who is right and who is wrong, then I tell them to go off and have a trial.
They’re entitled to a trial; there is no requirement that I resolve the case. Initially, I establish
those sort of ground rules, and then allow the parties to ventilate their hostility. First of all they
have to trust me. Second, I have to get them to trust one another. Only if they trust one another
will they start talking. I have to get them to step across to the other side of the table and put
themselves in the shoes of the other party. It’s not a quick process, although I have settled cases
in short order, or I have been known to say, “Do you want to settle this today?” and we’ll just go
at it. But when someone comes to me after their lawyer has told them they had a $300,000 case,
and the defendant is offering them $5,000 or $10,000 to bring them down from $300,000 to
maybe a $50,000 to $70,000 figure, that is a big jump in a personal injury case when the lawyers
bring in an ad damnum and a complaint of a million dollars. They’re not realizing that the
individual walks out of the lawyer’s office thinking: one-third to my lawyer leaves me with
$700,000. After I take care of all my aches and pains, I’m going to buy a BMW, and redo the
house. Several months, a year, a year and a half later, the lawyer brings the client before me and
says, “Judge you’ve had a lot of experience. Would you explain to Mr. Jones what this case is
really worth?” I have to say, “Mr. Jones the range in cases like yours doesn’t go beyond thirty,
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forty or fifty thousand dollars.” Then he looks at the lawyer, thinking, where’s my BMW; I’ll
have to get a Ford Escort instead. That process takes time, and I think one of the advantages of
having a magistrate judge as opposed to an Article ill judge is patience, which I think is one of
the prime requisites of being a mediator. I would say the most important criterion of being a
good mediator is patience, patience, and patience. An Article ill judge does not have the luxury,
or the patience in many instances, to be patient. Whereas we magistrates have a little more time.
I think the trial judge should not be an intrusive or active mediator of cases that he or she will be
trying. I make it a standard rule to not try a case where I’ve acted as the settling judge.
Occasionally, I break that rule. If I am designated as the trial court judge, I will make a concerted
effort to resolve it, but I’m very cautious as to how far I get into the settlement process, because I
am well aware that in many instances you say things that might be seen as prejudiced, biased if
you will, toward one side or the other. How do you go about it? You establish trust, vis-a-vis
yourself and with the lawyers. I don’t have to tell you that lawyers can be an inhibiting factor if
you have individuals where there is no love lost. I have to find out whether or not they are going
to be doing business together; if it’s a business relationship, that brings a different perspective to
it. I have to put all the relational aspects into the mix, and I could go on giving you anecdotal
stories of how this has worked, or not worked.
Mr. Ernst: I have one last thing that I would like to go through for this session.
You pointed out what you as magistrate judge can do that an Article ill judge can’t do. Given the
role, and how you’ve also spoken in general terms about how you do things that other kinds of
mediators do — like giving a seasoned assessment of what a case is really worth — that’s
something that a senior lawyer, a litigator who is attached to a court might be able to do as well.
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To distinguish you now from the general mt?diator, or a senior lawyer who is a mediator, as well
as from the federal judge, how important is it that these people are calling you judge?
Magistrate Judge Kay: I ascribe a great deal of importance to that. One, it’s
easier to me to establish integrity. Whether or not it’s justified is something else, but it’s easier to
establish because there is a willingness to believe a judge is a person of integrity. Two, I do not
have to countenance posturing from lawyers to the same degree that a non-judicial officer would
have to tolerate it. Now does that mean I don’t permit any posturing? Not at all. It’s important.
There is a lawyer and a client, and as anyone who has practiced law knows, the lawyer at least in
an appearance, has to show the client that he or she is going to bat for the client.
[END OF TAPE]
Mr. Ernst: You were talking about how important it was that you were a judge,
and you said you let lawyers posture because you are sensitive to the attorney-client relationship.
Magistrate Judge Kay: Increasingly I’m finding lawyers tend to act as the alter
egos. Their clients have a great desire not only to resolve the dispute, but also in the process to
remove certain limbs of the adversary. For many litigants decapitation would be a great way of
resolving a case. There is a buildup of hostility that has come from the months and perhaps the
years before they reached my chambers. As a judicial officer I can curtail that without the lawyer
losing face in front of his or her client. I will permit a certain amount of posturing and then I’ 11
put a stop to it in a non-offensive way because I need to have the support of each side.
Interestingly, you would think some very basic human characteristics would surface during a
settlement discussion. For instance, I think when most individuals want something from
someone they think they have a greater likelihood of getting it if they are pleasant, courteous, and
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nice to the other person . Yet I see people around this very table making comments and
statements that are downright hostile which they follow immediately with a demand for money. I
have to explain very gently to them that they are much more likely to get money from the other
side if they are pleasant and civil. To me that is such a basic concept, but they don’t realize that.
They are so angered by what they feel has been done to them that it’s just an extension of the
hostility that we see so prevalently in other aspects of society. As a judicial officer I have much
better control. Now I must tell you that when I was mediator I was reasonably successful even
without being a judicial officer. But I think it’s easier to be a judicial officer because I do not get
insulted as readily as I would if I were an attorney without the title judge in front of my name.
There are situations, albeit not common, when being a judicial officer is an impediment. If you
have a discrimination suit where the claim is perhaps sexual harassment and you have a woman
who may already be very sensitive, the more formalistic setting of a judge’s chambers may
hinder the mediation process. She may be embarrassed to go into the statements that a certain
individual made to her or discuss what happened. In that environment I try to be aware of those
types of issues. I have access to a very fine ADR section, or program, in this court where I could
enlist the help of someone who is not a judge. Returning to relationships between lawyers again,
I can be more effective. There have been situations where I determined, after an hour or so of
negotiation or mediation, that there was a competitiveness between the lawyers. I’m not sure if
you are familiar with one-upmanship, like Stephen Potter’s one-upmanship where one lawyer felt
that the other lawyer was more sophisticated, and more articulate. As a result the lawyer very
candidly admitted to me that he felt inferior, vis-a-vis his colleague. All this did was to stimulate
the other lawyer to up the ante, as he was not insensitive of their dispute. What I did was to ask
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each lawyer_i_f they would t~ey Illind, since there were insurance companies involved, if I dealt
with the claims agent of their respective carriers, and temporarily exclude them from the process.
They both acceded to that, and I brought the two claims agents who got along fine together. We
were able to effect a formula for who was going to pay what to whom. I don’t know whether or
not they would have readily agreed to that if I were not a judicial officer. One of the nice things
about being a judicial officer is that people are reluctant to say no when I make a request. (I have
to be very careful what I request.) I can lighten the environment by relaxing people. One of the
nice things about being a judge is that judges don’t tell unfunny stories. Regardless of the quality
of the story I tell, they will in kindness or deference smile or laugh, as the case may be.
Mr. Ernst: A lot like law professors.
Magistrate Judge Kay: That’s right, especially at final exam time. That is a part
of the process that I use. I use levity; I relax peopie. You know, we as human beings have a
tendency to take ourselves way too seriously, judges in particular, and lawyers next. It’s very
important if you are trying to generate a relationship with each side of a dispute so they trust one
another and begin to see one another as human beings and not ogres and mean, ornery people.
This is what is fascinating. How much does that have to do with the judicial process? Very little,
but by the same token, as I hasten to tell litigators who sometimes frown upon the mediation
process, these same lawyers will go into a trial environment, where they will dress up the client,
ask him to wear clothes befitting of whatever image they want to create, and use demonstrative
evidence to influence a jury. In other words, they use the same techniques that a Middle Eastern
rug salesman would use to sell his or her wares on the market, and yet these same lawyers will
frown upon the mediation process because it has a non-judicial aspect. It was just another
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mechanism until courts became so popular in the last 100 years; most people resolved their
disputes either by the traditional methods of war, or they negotiated them. Certain cultures do
not run into court every time there is a dispute, and many of our problems today would not be in
the realm of the traditional causes of action that came out of the common law of trespass and
contract and all those things. Judges are called upon to decide whether or not school uniforms are
appropriate, whether or not seating should be fair and line of sight, and whether it violates the
ADA to have seats at the new arena, whether or not the sign language interpreter can look out of
the window, or a teacher can look out of the window when there are deaf people in the class.
These are non-traditional causes of action that I think perhaps lend themselves to non-traditional
resolution. The other thing the mediator has to do is bring enthusiasm for the process. With that,
why don’t you go home to your friends?
Mr. Ernst: Very fine.
Magistrate Judge Kay: And I’m going to go work out.
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