Second Interview: December 28, 2009Catherine Nugent2019-03-27T18:29:11-04:00
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Oral History of Magistrate Judge John M. Facciola
December 28, 2009
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable John M. Facciola,
Magistrate Judge of the United States District Court for the District of Columbia, and the
interviewer is Kali N. Bracey. The interview took place on December 28, 2009. This is the
MS. BRACEY: Okay, we’re starting again, with the oral history of Magistrate Judge
Facciola. And we’re here on December 28 beginning with your
appointment as a Magistrate Judge.
JUDGE FACCIOLA: Yeah, well actually the story begins a few years before then. I had
applied for the position that went to Judge Robinson and then applied
for a position that went to Judge Kay. So, the third time, apparently,
was a charm. By the time that had happened, I had been with the U.S.
Attorney’s for 15 years and I had been practicing law for about 25
years, and I thought it would make sense to make application. The
application process was, first of all, a written application, and then at
the suggestion of Judge Richey, I made it my business to visit with
each of the judges. Some of whom I knew well because I had
appeared before them, and others whom I did not know as well. Some
I had known from my experience at the Superior Court and they had
come over here. So, I interviewed with all of them. A committee is
appointed pursuant to the statute. The committee has lay members and
members who are from the profession and the practice of law. And I
interviewed with them. The list was progressively narrowed as time
went by. So I think they started with 150 and that got down to X and
then to Y and then it was down to the last 3 or 4 people. And then I
remember my interview.
MS. BRACEY: How did the positions become available?
JUDGE FACCIOLA: Well, in that case, Judge Attridge retired, announced his intention to
retire. A Magistrate Judge must, under a statute, must give no less
than one year’s notice of whether he will take another term. So, Judge
Attridge has decided he would not take another term. And his term
had expired. Now, once you hit 70 you must be certified every year,
by the judges, okay. But Judge Attridge announced his intention to
retire and the position became open.
MS. BRACEY: And how long are the terms?
JUDGE FACCIOLA: Eight years. So, I’m in my second term.
MS. BRACEY: So, you had left off at your interview.
JUDGE FACCIOLA: So then I had the interview with the judges, and I thought that went
well, and then the time went by and I kept my fingers crossed. And I
got the phone call and they told me to go buy a robe. And so I did.
And then there was another process, which is a process of vetting me
by the FBI, and that took quite a period of time because they went
back to high school. And I filled out forms about my experience. It
was strange that it took so long, because obviously I was an Assistant
United States Attorney and had at least a moderate amount of security
clearance. But they interviewed a lot of people about me, and they
interviewed me on several occasions. And I gave them my history,
and so forth. And I still remember it was, it was interesting. This was
a period of time, if you remember, when there were a lot of concerns
about nannies, remember that? And I remember a lot of questions
about our cleaning lady, we had to explain who she was and we always
paid our taxes, and I think they interviewed her. So, I thought that was
kind of funny.
MS. BRACEY: They interviewed your cleaning lady?
JUDGE FACCIOLA: They interviewed my cleaning lady. We really loved her very much.
She was almost a part of our family. She had a son who had some
troubled times and we tried to help out there, my wife being a teacher.
So, the vetting process ended and then I was told to arrive and to
come. And I believe I started, something like on August 4, and then
my investiture would be later in October. Now, shortly after, I think
the day they announced it, the next day I got a letter from Judge Kay,
welcoming me. Alan and I had not known each other before then, and
we chatted, and then, I had told him how much I was looking forward
to it, and that was the beginning of a friendship that’s very deep, and
has lasted until today. And then he and Judge Hogan were very fond
of an intern, young woman named Julie Anna Potts, and I was hiring
kind of off-season, and they said, “Well you’ve really got to interview
this young woman.” And I’m funny when it comes to personnel
questions, I’m very instinctual. And I met Julie Anna, and we went
and got a cup of coffee at the old National Building Museum, I was
still at the U.S. Attorney’s office, and I said, “Well, you got the job.”
And she seemed to be stunned. But we began together at that time.
She was a graduate of George Washington. And she was my first law
clerk. And I learned last week, I’m delighted to say, she’s now
become General Counsel of the Senate Committee on Agriculture, at
the ripe old age of 33. So, God bless her. So, we began, it was nice,
because the first month nobody knew we were here, so we could kind
of get set up and go to work, and then I began in criminal in
September. Now that time was one of the most remarkable things I’ve
ever encountered. I had only been a Magistrate Judge for a few days,
and of course having been an Assistant, I knew the run-of-the-mill gun
and drug cases. And I was, my chambers was on the first floor, and I
was sitting there minding my own business working on something and
these three guys with suits show up. Now, that probably was a
Thursday, and the story about Monica Lewinsky had not broken. If
you remember it broke over the weekend, and it was on all of the
Sunday talk shows. So, but they brought me a search warrant to seize
the semen-stained dress of Monica Lewinsky and I became one of the
first people in the U.S. to learn of this and I’m afraid I wasn’t very
judicious. I was used to cops saying they wanted to break-in an
apartment to find cocaine, and I got to about, to page 3, of all this lurid
detail, and I said, “Holy shit, he did what? Where?” So, ever since
then, you know, I have always told people I should keep the pen, and
you know I don’t think the Clinton library would be very interested in
it, but, so that was amazing. It became my introduction to what the
most wonderful thing about this job is; you never know what in the
world is going to come in the door. You know, every expectation you
have is critically defeated by reality and that was it. So then I began
doing my work.
MS. BRACEY: So, did you sign the warrant?
JUDGE FACCIOLA: Of course. And I think she got it cleaned and they never did get it. I
don’t know. Jake Stein and Plato Cacheris would ultimately represent
her and they’re both good friends, and I don’t know, I never asked
them what happened to it. But it was, it was very interesting. We had
that summer, we called it Monica Beach. It was a warm summer, as
they all are, but this was particularly hot, and I guessed in the first
week in the investigation, one of them got criticized, one of the
reporters, or photographers, that somebody got into the building, one
of her friends, and nobody took a picture of it. So every day there
would be three guys across the road and we called it Monica Beach,
because they would come with beach chairs, and one guy would
obviously have to go get the coffee and one guy would go get the
donuts, and the other guys would get the newspaper. And they’d just
shoot a picture of everybody coming in and out of the courthouse. So
I was taking my laundry over to the drycleaners here and I had shirts
and they took my picture. And Judge Robertson came in, and he was
teasing me, and he said, “That’s probably your dirty laundry.” It’s
interesting sometimes when I show people around, they are all faded
now, but for a couple of years, you actually could walk over there and
you could see, it said CBS, CNN, they had their designated spots on
that, on the sidewalk out there.
MS. BRACEY: It was all very scientific.
JUDGE FACCIOLA: Yeah, it was. But it was, as usual it was an exciting and interesting
time to be around in the Court.
MS. BRACEY: Did you have any sort of training or was that your training?
JUDGE FACCIOLA: No, not really. There was very little training. Now, the training before
I arrived was nothing, but then it gets very intense very quickly. And
you go to what’s called baby judge school. And you’re off the
premises and we went to San Antonio, and there’s an intense, at least
week-long training. And then I did that. I think we went twice. And
the first aspect of it was an introduction to criminal and civil and then
we followed it up with additional trainings, particularly on civil and
negotiations, so that really was where my training took place. And
that was, that’s done by the Federal Judicial Center. Ironically, I am
now a member of the board of directors of the Federal Judicial Center,
MS. BRACEY: So, you know how to help shape those trainings?
JUDGE FACCIOLA: I hope so.
MS. BRACEY: And what did you learn about, sort of unofficially, how the court
JUDGE FACCIOLA: Well, I learned fairly rapidly that the system of assignment was
idiosyncratic. In other words, there wasn’t the same sort of wheel for
which I was used to. You filed your paper, and, you know, instead,
the judges would assign Magistrate Judges to particular matters. So I
realized that my life would be a function of having criminal every third
month, but then of having whatever came to me from the other 14
judges, in no systematic way.
MS. BRACEY: And did you develop a particular relationship with any of the judges
that effected —
JUDGE FACCIOLA: Well I knew almost all of them. So that was, that was, but I knew
some better than others. I didn’t know Judge Friedman as well as I
would get to know him, or Judge Sullivan, but I became very close to
them as years went by. So it was, it was, I don’t remember a point of
time, where no one knew me, everybody just about knew me, but they
knew me at various levels.
MS. BRACEY: And is that the way the assignments work now?
JUDGE FACCIOLA: Yeah, they still work that way. Yep.
MS. BRACEY: Okay. And so then how would you get an assignment, does it show up
in your —
JUDGE FACCIOLA: Well, we have what’s called the 295 Forms. So, it can happen a lot of
different ways. A judge can say I want Facciola to handle this
discovery dispute. Does a 295 issue as an order? Sometimes the
phone would ring, and it would say, “John, I’ve got these people
they’re ready to kill each other, can you spend some time with them,
and I’m going to assign this to you.” And then, more systematically
matters would be assigned to me for settlement. And then they would
come in and we would get the case and immediately set a date for the
people to come in and begin the settlement process.
MS. BRACEY: And how did you, did you sort of earn a reputation as being someone
who could facilitate the settlement process?
JUDGE FACCIOLA: Yeah, don’t ask me how. I came here, unlike Alan, the difference in
Alan’s and my career are striking in the sense that Alan actually made
a living as an arbitrator and mediator for a period of time, before he
became a judge. That was not true of me.
MS. BRACEY: And who is Alan?
JUDGE FACCIOLA: Alan Kay. So, when I came here, while I unquestionably participated
in settlements, I had no experience as a mediator, and I learned an
enormous amount from Judge Kay about how to approach it. And as I
explained, Magistrate Judges go to training. But it was primarily onthe-job training. Something I had to learn how to do. And try to grasp
what was going on. And in retrospect I think one of the advantages I
had is I came to it utterly ignorant of a preconceived way of how to do
it. And I had to respond to what was occurring before me and in front
of me. And that was good.
MS. BRACEY: And so how did you access Judge Kay’s knowledge?
JUDGE FACCIOLA: Just when I talked to him. We became very close, very quickly. I still
remember the first day I was supposed to take the bench, and I
couldn’t get the zipper on my robe up, and he helped me. And the two
of us were laughing so hard, that he could hardly do it. So, and that
became a relationship that has been, we’re notorious, it is said of the
two of us, one guy in frustration said, “You know it’s not, it’s bad
enough that you have a similar sense of humor,” he says, “the problem
is you have the same sense of humor.” He said, “I think you use it on
Mondays and Wednesdays and Fridays and he uses it on Tuesdays and
Thursdays.” So we have been known as two people who never take
themselves very seriously. We have this ridiculous love of old comics
who do what is called the Yiddish shtick. And bad jokes, Henny
Youngman, and all of this stuff. We’re the only two guys on earth left,
on earth, who remember any of this. But tomorrow night they will, the
Kennedy Center Honors will honor Mel Brooks who is out of that
generation of Mel Brooks, Woody Allen, Carl Reiner, those guys, and
that’s our kind of humor, you know. A guy goes into the doctor, he
says, “Doctor I can’t do this.” The doctor says, “Don’t do that.” So
that’s the kind of thing Kay and I do all of the time.
MS. BRACEY: Do you use it in court?
JUDGE FACCIOLA: All too frequently. And, but I just can’t resist the temptation. It’s
really a lot of fun and one of the great joys of being a judge is that the
lawyers take themselves very seriously. And being able to stick the
pin in is a lot of fun. The one story I love about Judge Urbina, did you
ever hear this one?
MS. BRACEY: I don’t think so.
JUDGE FACCIOLA: He’s got a room full of these lawyers in this big pharmaceutical case,
and they’re all in black suits, and they’re all stiff as boards, and he
turns to one of them and he says, “This drug is used to lower anxiety?”
He says, “Yes.” He says, “And it makes one feel better in times of
depression or great stress?” He says, “Yes.” And then he said, “Did
you bring any?” So that kind of stuff is one of the things I really
enjoy. And, you know, last week a lawyer said, I was trying to press
him to agree to do a deposition by video conference. And I said,
“What’s the difference between watching the Cardinals play the Cubs
in Wrigley Field, and being in Wrigley Field? It’s the same thing,
isn’t it?” He said, “No, your Honor. I want to smell the peanuts and
the popcorn.” And I said, “I’ll buy your crackerjacks and sing God
Bless America at the 7th inning stretch if you’ll go along with this.”
So I enjoy doing that.
MS. BRACEY: Did that work?
JUDGE FACCIOLA: Nope. But I got a laugh.
MS. BRACEY: Right. So, in terms of your mediation style, what have you learned
that’s helped you conduct the mediations?
JUDGE FACCIOLA: It’s funny. There came a point after I’ve been doing this for a couple
of years, when I thought, you know it might be valuable to teach a
course in this and learn what I can. So I wrote to the, you know, usual
suspects that publish law books. And I said I’m thinking about
teaching this course. And you know within days they come charging
in here, and I had a whole pile of them. And I was going through them
and I said, “You know it’s a good thing I never read these because I
break every rule that, and I’ve learned first of all, it is very much an
individualized process and that attempts to rigorously say what’s right
and what’s wrong ultimately fail. That’s because you’re dealing with
human beings”. And the first thing I learned about this, is you have to
have the patience of a saint. You cannot rush this process. You know,
it’s one part seduction, its one part therapy. It has a time, it has a
place, and it has its own dimension like any other human activity. And
you just have to play that out because you are, after all, getting people
to do, act against what is the normal way they would approach a
problem. That is, let’s fight. And propose to them a way that’s not
fighting, even though up to this point in the case, all they’ve been
doing is fighting. It’s a different mindset. So, the first thing I’ve
learned is patience. The second thing I’ve learned is that people
wonder why judges, Magistrate Judges, in particular, seem to do this
better. And I think I’ve figured that out. I’ve got a robe. And what I
mean by that is, that these poor people have been battered from pillar
to post. Depositions and interrogatories, it’s all been very artificial.
I’m probably the first judicial officer who can say, “What happened?”
And they can let it all come out. So I’ve learned the ability to listen.
It’s very, very crucial. And the third aspect that I think it is, always be
faithful to the rules of the game. And I use the word game not
pejoratively but as a compliment. It is a game, and is a game worth
playing. Litigation is a game, as well. It’s a little more highfalutin,
but it’s because people have to act in a certain way. But in any good
negotiation it has a discipline to it, and that discipline has to be
respected. The greatest most important thing is respecting the
autonomy of the parties. This is your lawsuit. It doesn’t belong to me.
It doesn’t belong to anybody but you and how it begins and how it
ends, finally is entirely up to you. And that autonomy can be
liberating or it can be terrifying. You know?
MS. BRACEY: For the litigants?
JUDGE FACCIOLA: Yeah. It’s like your kid going off to school. There’s one part of him
that can’t wait to get out of the house and go to college. There’s
another part of him that says, “What’s going to happen when I walk
out the door, who’s going to take care of me?” You know? And it’s
the same thing. So there is a tendency in that I think for most people
to respect their autonomy but need counseling and guidance. And that
counseling and guidance can come from the lawyer but can also come
from me if they want it, and they almost always want it. So people
who look at our styles, which is an interesting exploration, would say
of my style as being slightly more evaluative than Alan’s. So I may
say, “You really want to consider this aspect of this,” while Alan will
say, will not do that. And he’ll approach it in a different question. So
that’s the first difference in style. But again, that’s very much a
function of our personalities.
MS. BRACEY: And so you’re, and you’re saying you ought to consider this, in terms
of the weaknesses —
JUDGE FACCIOLA: This is going to go on for a long time. You’re relatively close to
retirement. I think I can hammer out a deal with them, okay? They
will be willing to pay you more if you retire. That’s a big, big
decision. I don’t want you to make it today, but I want you to think
about it. That kind of a thing. That could be liberating in one sense, it
also can be terrifying. And people react very differently to it. But
most of them deeply appreciate the guidance. Now, in that sense, a
judge can do this somewhat differently than a private mediator. A
judge can reasonably be expected to be a little more evaluative. While
a private mediator that might be considered intrusive by counsel. So
it’s a fine line.
MS. BRACEY: And when you mentioned that you got this stack full of how to
conduct a mediation books. What rules do you remember, thinking
that you —
JUDGE FACCIOLA: Oh, you should fight about who goes to whose office. That was a big
deal in one of the books. I stopped reading as soon as I read that.
Because I knew that this was the kind of nonsensical stuff that I never
could take seriously. Now this is not to say that an enormous amount
of social scientific research should be done in this process. It is
curiously understudied from my point of view.
MS. BRACEY: So that conclusion was not research-based? It was just —
JUDGE FACCIOLA: No. No. But the question we don’t have, for example, Judge Shaffer
in Denver has been doing something that I should have done 12 years
ago. When his settlement is unsuccessful, he makes sure he keeps a
record of the last number that was rejected. And then he watches what
happens at trial. And he’s beginning to collect that data. And to see
where it takes us. Nobody has really been doing that in a socially
scientific way, at least that judges have quick access to. And so the
process really is well worthy of a greater understanding and
differentiation between what is successful and what’s not successful.
And that remains to be done. But stuff about who goes to whose
office is not what we need.
MS. BRACEY: Have you started doing, keeping those sorts of records?
JUDGE FACCIOLA: No, I haven’t. I can tell you in every case I’ve ever had, I have my
notes of the last settlement conference. Sometimes, but you have to
remember, though, even if I have been “unsuccessful,” it may
nevertheless settle. Sometimes my job is to get the ball rolling. And
then the dynamic is different. Then the dynamic gets to what I would
call, the closing price. All right? Even if they leave me and they are
$20K apart, that will probably narrow as time goes by. So, it’s
interesting how few cases I can track, because even if I don’t settle
them, they somehow wind up being settled. But I’ve had cases that
have gone both ways. I’ve had cases in which plaintiffs turned down a
lot of money and got nothing. I’ve had cases where plaintiffs turned
down a lot of money and got even more. That’s the point. That’s
what we should study.
MS. BRACEY: So that people have some, everyone knows what the result could be.
JUDGE FACCIOLA: Yeah. I mean, the point is. There’s a wonderful book, I just finished it
this weekend, called The Good Lawyer, by David Luban who’s at
Georgetown. And when you come right down to it, that we have an
adversary system is very much a product like everything else of our
history. And you know the notion of the law of combat, of having a
crusader on all of your side, they are very much ingrained in the
common law that we inherited. But the real question is, of all the ways
to settle this controversy, what is the best way? And that’s what we
have to study. But we are so engrained in doing it that way. It’s very
hard to jump out of our own skins and examine our self, you know?
You know, one thing I learned in that classical education, was, you
know, Socrates always said, “the unexamined life is not worth living.”
And that’s the problem. We’re so enmeshed in the process, we don’t
step back and say, “Well, why do we do it that way?”
MS. BRACEY: And that’s because there’s too many stick holders who don’t
necessarily want you to get it done.
JUDGE FACCIOLA: Yeah, that’s right. Yeah. That’s right. Now in terms of other things
I’ve learned, certainly from employment cases, I have had confirmed
for me the wisdom of the statistical base, shows that when you ask
people what’s important in their jobs, money comes in a poor fourth.
Particularly, at this time when so many people are out of jobs. And
maybe this is why the Europeans are so critical of us. But we
Americans take our jobs very, very seriously. They really are wrapped
up in our self-worth and I knew that kind of abstractly, but only by
doing settlements do I appreciate that, because we’ll be talking about
something, money or whatever, and then I’ll turn to the plaintiff, and
say, “What happened?” And it all comes pouring out. “Yeah, they all
went to lunch. Do you think they ever took me to lunch? Do you
think they ever would do that? And training, they all went to training.
Did I ever get to go to training?” It all comes out, all of this stuff.
And you realize you could of given this guy all the money in the
world, and you would not have —
MS. BRACEY: He wanted to be at lunch?
JUDGE FACCIOLA: Yeah, he wanted to be at lunch. And he would still feel as if he had
been cheated out of something to which he was due. And now as we
see in our economy that people are losing work. I mean, you know,
mature guys, men and women in their 50s or 60s, they can’t talk about
this without almost immediately beginning to cry. And as I say, the
Europeans who might say, “Those American are crazy, you know?
There have got to be other things in one’s life.” Try to understand
people as you search for alternatives. Consider how they are
important. I mean, it may sound stupid. But maybe a retirement
lunch, is what this case needs. And the most magnificent example I
ever saw of that was, the toughest case I ever had was, a couple of
years ago two off-duty police officers were both in line at some
restaurant or bar, and a fight broke out, and both of them went to break
up the fight. It got out of hand, and both of them drew their guns.
Each was unaware that the other was a police officer. Neither of them
were wearing their badges. One killed the other. Both of them, this is
astonishing, were the sons of police officers. So, we tried to settle that
case. And one officer’s mother was the principal of a school. And
she, I had, when I was in the U.S. Attorney’s office, I was a part of a
group of assistants who adopted that school, and I went over there, and
so I knew her, and my wife’s a teacher, and we just got chatting about
our children and her husband was a police officer, her daughter was a
police officer. This is a cop’s family. And I noticed that she was
wearing around her neck, her son’s badge. And what really broke her
heart was there was an investigation of what happened that night, and
perhaps because of its existence her son was not given the traditional
honors given to a police officer who dies in the line of duty. That
really broke her heart.
MS. BRACEY: It was a District police officer?
JUDGE FACCIOLA: Yes. And one of the things we worked on was to see if she could meet
with the chief of police just to talk about that and explain it. Now, you
might, in the world, the way the world looks at things, you’d say, well
you know, what’s the money and all of that? Money had nothing to do
with it. That’s what we have to do when you settle cases, where are
these people hurting? And how do you alleviate that?
MS. BRACEY: And did that one settle?
JUDGE FACCIOLA: Yeah. Yeah. All the money in the world is not going to bring her
back her son. Right? But she had to come to grips with that, and deal
with it, and so did I. I mean there are terrible stories in me. We have
cases, you know, people being hit by Metro buses and having to watch
the video tape of the accident, and babies dying and thanks to some
problem in a hospital. I mean, there’s a lot of tears. You know, we
Magistrate Judges kid, that we’re the only judges in America who keep
Kleenex in our chambers. And we have to. That this can be a very
emotional process. In a way, you know, if I have two business people
here, and they are fighting over a contract or something like that, I can
leave them in a room, and get out. That’s what they do all day. He
says 10, he says 20, they reach 15. You know, they know this much
better than I do. But when there is this, this emotional aspect of this,
in other words, people still look to the system of justice to be a system
of justice, to right a wrong and to vindicate the violation of some
sacred trust. The justice system may or may not be able to meet their
needs. I mean, all we have is money. But dealing with that
confrontation is the heart of what we do.
MS. BRACEY: And so you mention having the mother of the slain police officer meet
with the chief of police?
JUDGE FACCIOLA: Yeah.
MS. BRACEY: Do you ever, can you think of any, sort of other, sort of nontraditional,
nonmonetary, I guess, that you’ve worked out at settlement?
JUDGE FACCIOLA: Yeah, Yeah. I had a situation where the guy, they loved this guy. And
he was a very good man, and he had worked for them for years, and he
fell off the wagon. And he got loaded, and they said, “Look we’d love
to have him back, but he drives a truck. What are we going to do if he
shows up loaded?” And I said, “Bring him here.” They said, “What?”
I said, “Here’s the deal. If he shows up, and you think he’s drunk, all
right? I’ll stop whatever I’m doing and we can get together and talk
about it.” And they all looked at me like I was crazy, and then they all
agreed. I’ve never heard from them since. Okay? But I often will
introduce the notion of coming back to me for an additional mediation
if the deal they work out goes sour. And that’s very important. It’s
one thing to tell somebody, well you have your rights under the law
and they can’t retaliate against you, but that’s not a lawsuit. And
that’s more of the same. So, I’ll preserve my jurisdiction, and they’ll
come back, and I will continue to work with them. And that I find, I
think it’s very important in a mediation for the people with whom you
are working to understand you have a dog in the fight, that this is just
not another case and they’ll leave and you’ll go on to do something
else, that you want to be invested in this because it is crucial and very
important. And the mediator has to convey that. You’ve got to care.
Now it’s interesting because the traditional wisdom of people of whom
I admire like Herb Cohen. He always says, “I care, but not too much.”
That’s one way. You know, it is a fair criticism of what I do to say of
it, what I am doing is relieving them of solving their problem. There’s
a responsible school of negotiation that says you never want to permit
these people to think that their problem is your problem. It’s their
problem. And it’s less their problem if you – they won’t get invested
in trying to solve it. Those are competing and warring ends. I don’t
think there’s one answer. But in terms of my own personality, I have,
I can’t wash my hands of this. That’s just not the way I do things. So
it’s an interesting process. It’s like kids, you know, I mean if you,
there’s always that fine line. When do you push them out of the nest,
and when do you keep them? Some judges, as I say, will say that one
of the bad things about the mediation process is that we permit lawyers
to be as unreasonable as possible and not to learn how to deal with
each other. Because then they come to the judge and the judge yells at
them. I don’t know.
MS. BRACEY: Then they’re deluding themselves?
JUDGE FACCIOLA: That’s a risk I’m ready to run.
MS. BRACEY: Right.
JUDGE FACCIOLA: To try to accomplish other things.
MS. BRACEY: And you mention that in the truck driving case with the alcoholic truck
driver. They never came back. Do other people ever come back?
JUDGE FACCIOLA: Yeah, sure. They’ll come back, and it will turn out that, it will turn out
that there may be other ways to look at it, there may have been a
misunderstanding, or it may turn out and they’re back at each others’
throats again. There’s nothing much I can do. One of the problems
we have with the employment situation is when the people go back to
MS. BRACEY: They still don’t get taken to lunch.
JUDGE FACCIOLA: Yeah, that’s a problem. And now there’s a new atmosphere there. But
time can heal all wounds. Because people come, the people go. The
people who were abrasive to each other then may be in different
situations. So you always got to hope that things can be worked out. I
mean, anything is better than carrying these crosses for six or seven
years. I mean, it’s almost torture for people to go through this. And if
I can bring that to an end, you know, I’ll run whatever risk I can to do
MS. BRACEY: How long were you at, were you on the bench before you felt like you
really got it?
JUDGE FACCIOLA: I still don’t. The day I figure I got it, I’ll quit. No, I mean that there’s
always something to learn every day. I think I became fairly more
comfortable with the settlement process recently after doing it for
about 10 years, and with the litigation process on the criminal side, I
think I’m really comfortable now. But now there’s a whole new wave
of things I have to learn because of electronics. And the computer
revelation, and cell phones, and PDAs, and searches of computers. It
is a very new world. So with that, there’s always something new to
learn. But I don’t think you ever really get up in the morning and say,
I’ve got this locked. There’s always this wonder and what’s coming at
me, did I get it right? Making sure I’m looking at everything, you
know, am I prejudging this? Am I really thinking it through? So, I
guess you get a little more comfortable and there’s no substitute for
experience but there’s always that sense of what’s next, a sense of
wonder that the process can be so complicated.
MS. BRACEY: What about sort of the collegiality of the court?
JUDGE FACCIOLA: It’s remarkable. Yeah, I mean, it’s astonishing. We get along
famously. We’ve been blessed by Chief Judges who are collegial.
The thing I always say is, I always count the number of seconds
before, between Judge X says, “I’m jammed up, can somebody take
motions duty?” And the response, it’s usually about 30 seconds. So,
we’ve always had that here. And there are various ways to go about it.
The Chief Judges we’ve had are very inclusive in their thinking. They
are not “tyrants from on high,” we get along very well. I think it’s
crucial that we try to have lunch together every day. And that’s very
important. That may seem kind of silly, but it’s a way of putting us in
the same room and getting us to talk to each other. We socialize
together, our families know each other. It’s just a very, it’s a very
interesting atmosphere. People from outside would be quite surprised.
There are other courts where, unfortunately, it doesn’t exist. But we’re
also blessed geographically, we’re all in the same place. We have to
MS. BRACEY: In the same building?
JUDGE FACCIOLA: Same building. We have to get along.
MS. BRACEY: __________ physical building. Right, so if you are in a broader sort
JUDGE FACCIOLA: Yeah, Texas, I understand it, two judges are 300 miles from each
other. So, yeah.
MS. BRACEY: It’s hard to get along. More difficult.
JUDGE FACCIOLA: More difficult, yeah.
MS. BRACEY: And how does that sort of, how does your relationship with the other
judges influence your work?
JUDGE FACCIOLA: Well, it’s very easy to pick up the phone when you have guidance or
help, or to work things out. It’s that, and also the atmosphere breeds I
think a sense of confidence. I mean, you have to remember that vis-àvis the District Court Judges, they are my Court of Appeals. So I am
never afraid to do what I got to do for fear of being criticized. I know
I may get reversed, but I know it will be for a principled reason. It
won’t be because of some petty jealously or anything like that. And
that’s a very liberating feeling.
MS. BRACEY: And you mentioned that the District Judges were your Court of
Appeals. Have you ever been reversed and had a conversation about
it, or —
JUDGE FACCIOLA: Yeah. I’ve been reversed but I never had a conversation about it.
What’s done is done.
MS. BRACEY: Do you take that and use it for your next —
JUDGE FACCIOLA: Yeah, it’s usually so idiosyncratic. It’s only occurred, I think two
times in twelve years. So, it’s not that common. But when it happens,
you know, I appreciate it. Very interesting issue. In a settlement, I
became troubled by the fact that I thought the lawyer might find
himself in a difficult position of advancing simultaneously the interests
of a child and the child’s mother in a particular matter. And I came up
with a stratagem of appointing amicus for the child and I was reversed
on the grounds that I had no business of intruding on the fundamental
relationship between a mother and a child. I think reasonable people
could differ about that. But, so what, you know? And in those
instances, you know, I have somewhat different views. But you learn
pretty early as a judge that differing views are perfectly consistent with
collegiality and you can’t let one interfere with the other. Because if
you do then you get petty jealousies and tyranny and a lot of other very
MS. BRACEY: Do you have any sort of relationship with the Court of Appeals
JUDGE FACCIOLA: Yeah. Merrick Garland and I were Assistants together. I’ve gotten to
know many of them because they have lunch with us.
MS. BRACEY: They have lunch as well, too?
JUDGE FACCIOLA: Yeah. Not in the same number as we do. But those that do, seem to
come all the time. So, they’ve become friends. And there’s a lot of
good-natured joshing about that. As you can imagine, people sticking
the pin in each other. It’s a lot of fun.
MS. BRACEY: So, what about your relationship with the attorneys that appear before
JUDGE FACCIOLA: It’s been good. I mean I, I can’t, I’ve had, you know looking back
over my career, I remember two times when I got angry. And now I
regret both times. I just don’t, when I began my career as an Assistant
District Attorney in New York, there were these old crotchety judges
who just were terrible, they just yelled at people and all that, and I
guess that experience shaped me, and I just don’t like to conduct
myself in that way. And as I say, the two times I’ve lost my temper I
lived to regret it and promised myself I’d never do it again. So, to tell
you the truth, when I am tempted, I’ll take a recess, go in the other
room, take a couple of quick deep breaths, blow off some steam and
then come back out.
MS. BRACEY: A self-imposed timeout?
JUDGE FACCIOLA: A self-imposed timeout. Exactly.
MS. BRACEY: Do you ever impose timeouts on other people?
JUDGE FACCIOLA: Yes, I do. I would say, “Counsel I think we better take a break here,
and you better be a little more careful with what you’re saying. Don’t
call other people a liar in open court. Don’t do that. You’ll live to
regret that. Take it from me. Let’s do that.” Cooling-off periods are
MS. BRACEY: Do you care to discuss any of the outstanding, good —
JUDGE FACCIOLA: I think that, well, I don’t know. The quality of the bar has been, in my
opinion, is very good. I can’t single out any one of them. But there
are some, you know, one thing that amazes me is how ferociously
devoted they are to their clients. I may disagree with the contentions
the lawyers are making, but very few of them ever leave it in the
locker room. There is a ferocious dedication to the client’s interest.
And I think that’s very good. This is a good strong bar, I think as bars
go. The one concern I have is that it’s a relatively small trial bar, and
it never seems to be getting much bigger. And I think the way things
are going it’s not going to get any much bigger.
MS. BRACEY: And you mean criminal and civil?
JUDGE FACCIOLA: No, more on the civil side. The criminal bar still is going to be the
Assistants, and the Federal Public Defenders and this good cadre of
people under the Criminal Justice Act that we appoint, and that’s a
good strong bar that knows what they’re doing. On the civil side, what
we have is, the old are getting older and the young are not coming
around. A lot of reasons for that. In the old days, you could cut your,
you know cut your eyeteeth on a slip and fall case. Insurance
companies don’t pay for that anymore. You know, they give a guy
5,000 bucks and say, either settle it, or try it for that money and don’t
come back here. So, the problem is, and since we settle so many
cases, I don’t know where the young lawyers get their training in civil
matters. They are taking endless number of depositions but that’s one
thing, but trying a case is quite a different thing. And it’s a major
concern I have about the future. Now in terms of the quality of the
bar, one of the things my law clerks always say, and I think it’s quite
true, one of the problems we have is, the good are very good, and the
bad are awful. There are some —
MS. BRACEY: The range is —
JUDGE FACCIOLA: Yeah, the range. I mean, it’s interesting and there are some who I’m
deeply troubled by. Whether they are, really know what they’re doing.
MS. BRACEY: And that’s the civil and the criminal?
JUDGE FACCIOLA: No, not in the criminal side. The criminal side will stop it because it’s
not an effective assistance of counsel. But on the civil side, there is
some work that has to be done there in improving that. In other words,
there’s just not a bar we can turn to and say, you know, these young
people can do this. There’s no substitute for the experience. I mean,
when I was an Assistant, for example, the Assistants would try
misdemeanor cases before juries. Well, that was considered ultimately
a waste of time because all you had to do was limit the exposure to six
months and it could be tried by judges. So what was gained in
efficiency was lost in terms of, I mean, in getting that experience, you
know. I mean, you don’t want that your first case be a rape or a
robbery, you know? Shoplifting at the Target will do.
MS. BRACEY: Right. And on the civil side are you concerned about the plaintiffs’
bar or the defense bar, or both sides?
JUDGE FACCIOLA: Both. Yeah, both sides. The problem is you don’t see a new group of
people coming up and you say, oh this one’s really good and you
know, you’ll see them once and never see them again. The exception
to that is the employment bar which I think has a tendency to get a lot
of repeat business. But other than there, on the civil side, I just don’t
see this accumulation of young people that are going to do this and do
it for the rest of their careers. It’s just not going to happen in this
market. Which is unfortunate.
MS. BRACEY: And the market is not getting any better, I guess?
JUDGE FACCIOLA: Not from what I can tell, yeah.
MS. BRACEY: Is there anything you can do about that?
JUDGE FACCIOLA: No. I mean, it’s the same old story. That’s the way the society is
going. If no one wants to pay that amount of money to pay those
lawyers to do that thing, there’s nothing anybody can do about it now.
I’m not among the group of people who say well, you should use pro
bono work to do things. I mean, I think you should do pro bono work
because it’s worth doing. Whether it’s going to give you valuable
experience or not, it’s important. That’s the true important thing. By
the same token, certainly you can encourage young lawyers to do that
kind of stuff but to do it for the right reason. It just may not yield the
kind of experience they hope.