John Facciola Third Interview: January 15, 2010

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Oral History of Magistrate Judge John M. Facciola
Third Interview
January 15, 2010
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 January 25, 2010. This is the third
interview.
MS. BRACEY: So, it is the morning of January 15, 2010, and where we left off was
sort of the state of the legal world and I think we’re going to move on
to law clerks. Hiring, and choosing, and how great they are. So, how
many law clerks, just of, sort of how many staffed —
JUDGE FACCIOLA: Well, when I first arrived here, to succeed Judge Attridge, he had
already a secretary and I came out of a culture which was quite
different from Judge Attridge because he was of a generation that
wrote things out in longhand or dictated, and I was word processingdependent from the U.S. Attorney’s Office. So, the secretary I had
wasn’t busy, she didn’t like it, she was bored, and she decided to
retire. And upon her retirement I availed myself of the opportunity of
converting that position into a law clerk position, because Magistrate
Judges can now do that as can District Court Judges. So, from that
point on, which was very early in my career, I have had two law
clerks. One of them, Sarah Podger, has been a professional clerk,
that’s her career, she’s been with me now, I think for eleven years.
While the other is a rotating person, who serves for a year. I prefer to
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have the rotator serve for a year for several reasons. Number one, I
think a year does it, they gain enough experience, and I can’t pay them
very much. And the second thing is, I like the fresh, new blood
coming in every year. So, I’ve had wonderful law clerks. I’ve grown
very close to them. Recently at his portrait hanging ceremony; Judge
Robertson described his law clerks’ children, as his grandclerks. So I
have six grandclerks. I don’t know if it’s unique in the federal
judiciary, but if, you can see behind me, I have performed wedding
ceremonies of many of my clerks. There are only two I didn’t do, and
they are both Catholics, and needed a priest, and I couldn’t pass their
physical. Amy Easton, I married. And Amy is an interesting story. I
was at the U.S. Attorney’s office and it decided to start using college
kids as interns. And I was against it. And I said, “What in the world
are these college kids going to do?” And she was assigned to me and
she showed up in her Michigan sweatshirt. And I showed her how to
use the library and within a week she was producing work better than
most of the lawyers. So I told her, “Amy, if I ever become Judge,
you’ll be my law clerk.” So, we lost contact with each other. And I
tracked her down through the Ohio State Admissions Office where she
was going to school. And I called her, and out of the blue I offered her
the clerkship. So we were reunited. And she was my clerk. Then my
first clerk was Julie Anna Potts. It was funny, she was, she had a thick
Southern Alabama accent, and I had a Brooklyn accent. So for about
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the first month, I think we needed a translator. But fortunately, down
in Alabama, Judge Carroll, John Carroll, Magistrate Judge Carroll, his
secretary was from Brooklyn. So we had a full-way translation
system, if we didn’t understand each other. She kept talking about
somebody named, y’all, and I thought that was like a Swedish cousin.
I didn’t realize it was the plural view, y’all. “All y’all” was my
favorite. And she was wonderful. She since has gone on; she became,
just this past week, she’s now General Counsel to the Senate
Committee on Agriculture, having served as a lobbyist for the Farm
Bureau, General Counsel for the Farm Bureau, which is the largest
lobbying organization on earth. Kevin Muhlendorf, I married him as
well. If you look over there you’ll see in that picture my signing the
ketubah, the part of the Jewish wedding ceremony, in which I sign the
contract between the couples. And that’s Kevin next to me. And
Sarah, I performed her wedding at the St. Regis as well. She married a
gentleman from Great Britain. And so I’ve been very close to my law
clerks. And the fun one was this Katie Anderson. That’s Judge Mary
Ellen Coster Williams, of the Court of Claims, who is my dear friend.
We worked in the civil division together under Judge Lamberth. And
Cos is, I call her (she has to have a nickname with all of those names),
Cos and I flew out to Michigan, and the reason for that is, my law
clerk married her law clerk, and we performed the wedding ceremony
and had a blast. Danced the night away in an old converted barn out in
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Michigan right on the lake. It was very beautiful. So, now they have
kids, and I have pictures of the kids here in chambers, and I think
one’s blowing into town today. That was another interesting wedding
I did. She married a Remesh, a physician from India. And Meredith is
about almost six foot tall, a very beautiful woman. And her Remesh’s
mother went to India to get the saris for the women in the wedding
party, and they had a traditional Indian wedding, and it was just
magnificent, and her hand was all decorated with the henna, and it was
very beautiful. And then we did an American ceremony thereafter.
And then the most recent one was a lot of fun. Michelle Tupper, my
law clerk, married a guy who is a very gifted carpenter and works on
remodels, remodeling, particularly buildings in Washington that have
aged in magnificence. And they both love country music, and he has
played at the Kennedy Center. He used to be with a band. And that
was really a boots wedding down in Kentucky. So we had a lot of
good country music, and had a lot of fun. So, it’s been a really good
kick.
MS. BRACEY: You seem like you have a lot of women who are law clerks.
JUDGE FACCIOLA: It’s interesting. If you look back over my career, there are very few
times when you will find that I have men working for me. I had an allfemale staff at the U.S. Attorney’s office for a while and most of my
law clerks have been women. I can’t say I’m even conscious of that,
but they just stand out in terms of their qualifications. I suppose it has
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something to do with the fact that my three sisters were eminently
qualified professionals. So, I’m very comfortable around women who
are in a professional capacity and enjoying themselves.
MS. BRACEY: And what makes a good law clerk?
JUDGE FACCIOLA: The ability to say no. The ability to stand at the cliff and say, “No,
Judge.” “See the stop sign? Stop right there, cause you are about to
drive right off of this cliff.” As I tell them from the first day, you are
not here to say yes, you are here to say no. “Judge, this is not what
you should do.” They’re here to cool me off. Make sure I blow off
steam and don’t do anything that I shouldn’t do in anger. And they are
here to perform, you know, the disciplined approach of finding what
the law requires and bringing it to my attention and helping me
articulate it. We write a lot more than most chambers. I noticed this
morning, I think, I was looking up something. I think I have 560
published opinions, which is after twelve years, about 40 a year. So,
that’s remarkably large, I couldn’t have done that without the excellent
work. And we do it a lot of different ways. There may be situations
where they give me a draft, and I’ll mark it up and then we’ll talk it
through. There may be other situations, perhaps more common, where
I’ll write and give it to them and they’ll whack it. But it is an editorial
process. Our law clerks learn, as I learned when I was very young, it’s
important to be a good writer but it’s much more important to be a
good editor. And to know how exactly to say things with power. I
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have a lot of fun with my law clerks. I am of a literary bent of mind,
and classically educated. So, I am always sneaking in literary
references that they are giving me a hard time about But I never took
the job, they didn’t tell me when I took the job that I would have to be
dull and I refuse to have a dull prose style. Nobody is persuaded by
something that’s turgid and can’t be read. And the law clerks help me
immensely there. They also serve as sounding boards in terms of
approaches. They also acquaint me with new things, you know, with
new perspectives. The world keeps changing and the arrival of a new
group, a new person each year, helps me understand how that new
generation is seeing things, particularly in the area of technology. And
how that generation views concepts of privacy, and so forth, is very
important to me.
MS. BRACEY: And how, what have you seen trend-wise with your clerks?
JUDGE FACCIOLA: I’ve seen that the number of people applying has gone through the
stratosphere. I think I had 1165 applicants for one job in the last year.
Now, a lot of that is the product of the computerization of the system.
So, in the old days, a law clerk would have to spend 47 cents for 200
envelopes and mail one to every judge in the system. Now he or she
just pushes a key stroke and it goes. But we are overwhelmed with
applicants. So the winnowing process is much more difficult, I think,
although the computerization of it through this OSCAR system is very,
very helpful. The second aspect of it is, I think the law schools are
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doing a better job in having the students write more earlier in their
careers. The one thing that distresses me, however, is I would like to
see Law Review experience be traditional Law Review experience. I
don’t think you should escape from the Law Review experience
without writing something.
MS. BRACEY: Oh, as opposed to just editing?
JUDGE FACCIOLA: As opposed to just editing. So, that’s the only thing. But the quality
keeps going up. And it’s interesting they each bring different skills,
they bring different attitudes, different ways of doing things. They are
radically different. Some are aggressive, some are not. Some have
views on a particular matter that are different from others. Kevin was
our closet conservative, he was a, you know, a George Allen
Republican from Virginia. And he was always being teased by the
other law clerks for his ways. One of them brought extraordinary
technical skills to the job and that proved very valuable to me. He had
made his living for a while as a computer programmer and when he
worked with me on the White House backup tapes and his
understanding of the technology was crucial to my understanding of
the technology. So that now has become particularly significant
criteria and I look at that very carefully ‘cause I want people to be
comfortable in the 21st Century world we live and unfortunately that’s
a technical world, or fortunately.
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MS. BRACEY: Could you just put, so we know what the OSCAR system is?
JUDGE FACCIOLA: OSCAR, O.S.C.A.R. stands for Online System for Clerkship
Applications something or other. About 5 years ago, you can’t
imagine how badly this had gotten out of hand. Remember we’re the
home of two courts, and two of the most prestigious courts in the
country. So, you can imagine the number of applications we got. We
had to hire contract people to go through the mail. Thirty-five to 40
buckets of mail would arrive the day after Labor Day. And they all
had to go through the machine and be sorted and all of this. And then,
another aspect of this is that there were no restrictions on recruiting in
terms of the year that a person was in law school. So, people were
interviewing 1L’s and there was all this one-upmanship. So, finally
everybody came to their senses. The first aspect was the agreement
that we would only hire, only interview 2Ls for permanent positions,
that we wouldn’t do so before September 8, the day after Labor Day.
And then, that led, under Jim Robertson’s leadership primarily, to the
creation of a computerized system by which law students apply. And
basically, each student in the database has a package: opening letter,
résumé, letters of reference, transcript. And I can look at all of those
without leaving the computer screen. Then I can box them. You
know all the ones I’m particularly interested in. All the ones maybe
worth a second look. And then I can search in a lot of different ways,
e.g., law review experience. In my case, I frequently, and have been
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successful most of the time, look for some experience between college
and law school. And then, some experience after law school. I very
rarely hire right out of law school. I like people with experience in
various areas.
MS. BRACEY: So, what areas?
JUDGE FACCIOLA: Usually the law firm or governmental. It works out better, I think,
because a year of experience is good. Coming out of law school to a
clerkship can be, you know, a real cold shower. And law firm
experience or governmental experience, I think, sharpens writing
skills. Also, it puts you in the position where you got to get work out
on a deadline. It creates people I can talk to about you so I can see
how you functioned in game conditions. So, there is a natural trend in
the federal judiciary accelerating year-to-year of insisting upon some
experience after law school. And given the market, you know, you
can insist on anything you want these days, because the market favors
the buyers as opposed to the sellers. Now, it’s interesting in my law
clerks, I’ve corrupted all of them. They’ve all gone on, most of them
have gone on to public service, I’m proud to say. Amy was with a
firm for a while, didn’t like it. She’s at the Department of Justice.
Katie’s at, in the Inspector General of IHS. Kevin is making a heck of
a career for himself at the SEC. So, as I say, I corrupted all of them,
they’re all in public service, with one or two exceptions.
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MS. BRACEY: Very good. Are there any judges on your court who are particularly
effective at influencing other judges getting them to get things done?
JUDGE FACCIOLA: Yeah, but not by force of personality. Probably by force of their
opinions and so forth. I think you’d have to say that Hogan is a leader.
You know, if you’re disagreeing with Tom Hogan, you better really
give it a heck of a lot of thought because it’s been very, very carefully
done. And again, they have different perspectives, but I think of the
ones I’ve met, I think Tom really leads the pack; just as recently as
yesterday, I noticed a particularly principled decision. I know now,
after I read his decision, the question became, is whether a contrary
decision would make any sense, and if it doesn’t, then he’s right. In
other words, I don’t have to accept what he says because he’s a
coordinate judge, but nevertheless he has an important leadership role
in a lot of my thinking. And that is true of several of them. I can’t
think of any whom, whose opinions I would disregard, that’s certainly
not true. But, you know since we are coordinate judges, what we try
to do, is try to interpret what the circuit has said. One of the problems
I have now, and I think it’s the most distressing change I’ve seen, is
computerized legal research permits young associates to think that if
they find a district court case in Nebraska it’s the law. So, you have
this unfortunate situation where a phrase is taken from a case and said
to be the law, as opposed to the old idea of pulling down the circuit
authority and seeing where it is before you do anything else. And I
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don’t know if that’s the product of legal research or the product of
computerized legal research, but something has gone wrong there, and
it leads to a mountain of work that is kind of misdirected.
MS. BRACEY: And is that, is the work that your law clerks then have to find the
circuit, because it exists —
JUDGE FACCIOLA: Oh no, I have to find it. That’s exactly what I’m doing when you
walked in.
MS. BRACEY: Okay, because it actually, because sometimes they cite Nebraska
because there’s no circuit law —
JUDGE FACCIOLA: Or because Nebraska’s cool. It’s got a phrase in it they like. And that
is not really the methodology that they’re required to engage in. And
my law clerks always come back to me and say, “Judge I read this
brief by this party and there are no citations to any district cases or any
circuit cases.” I say, “Well, then we’ve got work to do, don’t we?”
We go in and there it is, there is circuit authority and it’s not been
handled, it’s not been grappled with. There’s just maybe too much
information out there, you see what I mean?
MS. BRACEY: Right, so you can’t filter.
JUDGE FACCIOLA: No. In the old days, you just pulled down, you just looked at what this
circuit said. Now, you can do that in the system and I’m surprised not
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more people don’t do it, or at least their work product suggests that
they hadn’t done it.
MS. BRACEY: Anything else on that? Like what you are seeing in terms of trends
and what you’re seeing from litigants?
JUDGE FACCIOLA: Yeah, that’s one of the concerns I have. The second concern I have is
there’s still a lot of time being burnt up on stuff that’s really not that
important. In other words, if you’re around the adversary system long
enough you know its values. But you also see, one aspect of it is it
leads to fighting for the sake of fighting. Lawyers actually take
seriously that a judge is going to read an opposition to a motion for an
extension of time. I have news for them. Nobody has time to do that.
So, I see a perceptible trend among judges, losing patience with
adversary system for the sake of the adversary system. And as
recently as yesterday I was invited to the conference in May that’s
being run by the Advisory Committee on the Federal Rules under
Judge Koeltl in New York. And we’re going to be looking at these
surveys that were recently done in terms of the cost of discovery,
electronic discovery, by the FJC, by the Institute for the Study of
American Law, and by American Trial Lawyers Congress. But the
point of all of that is, is trying to look very carefully at cost and benefit
ratios and doing something about that. So that trend is, I think I see
greater emphasis by the judges on the value of cooperation as opposed
to the naked adversary system burning up time and money. So that’s a
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very perceptible and obvious trend. And I’m very excited about being
a part of it, or at least being there kind of at the inception of the
thinking.
MS. BRACEY: And do you think what’s driving the issues in the adversarial system is
the availability of all this electronic information, or is there something
else . . . . ?
JUDGE FACCIOLA: Well, yeah. I think what the problem, the first problem I think is that
there’s just so much of it. In other words, if we all managed our
electronic data better than we do, we wouldn’t have a problem.
However, there is a natural temptation now, because storage capacity
is so cheap to save everything. Well, if we save everything the cost of
finding anything is that much more. And I’m a bad offender of it
myself. I realize that if I could clean up that hard drive and get rid of
these cases from five years ago which nobody cares about because
they’ve been resolved on appeal, and if the case is over, it certainly
would be a lot easier to find it. But, you know who has the time to do
that? And I’m not disciplined enough to go back in there. As a result,
finding things is that much harder. It leads to this whole sub-industry
of search of vendors selling search capability and others. So, I don’t
know if it’s, it’s hard to say, was it the chicken or the egg? Whether
we were thinking about these issues and electronic discovery came
along, or electronic discovery coming along and we got thinking about
these issues. But there now has been this perfect storm of all of these
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things coming together. You know, a friend of mine, Pat Oot, was
employed by Verizon and they spent 4 million dollars in discovery in a
particular case. And I had a discussion of this at Georgetown this
summer. Justice Breyer was there. I said, “Can you imagine the good
we could do for the children of the District of Columbia with 4 million
dollars? Where is this money going?” And as a result, Pat was hired
by Verizon with the single responsibility: get those costs down. So
we’re going to see that trend is perceptible and it’s leading to whole
new ways of thinking about it. So this conference in May could be
terribly significant. Then the other development I think is very
interesting and it’s a coincident development is the interpretation by
the District Court’s of the Supreme Court’s decisions in Twombly and
Iqbal and where that will take us as a coincident sort of development.
MS. BRACEY: And have you seen any, any —
JUDGE FACCIOLA: The first thing I’ve noticed, and I’ve been, is I’m looking at it, some of
the statistics, I think we’d all agree, that the rate of dismissal is going
up in those judicial districts where there are prisons, which is
understandable.
MS. BRACEY: The rate of dismissal is going up?
JUDGE FACCIOLA: Yeah.
MS. BRACEY: Okay.
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JUDGE FACCIOLA: Because the pro se petition is the plaintiff’s. Iqbal was a qualifiedimmunity case. And I handled a lot of those cases when I was an
Assistant. So I could see that. The general trend, there was a good
article in the Northern Illinois Law Review by a lawyer who studied
the cases post-Twombly in a Title VII area without the benefit of Iqbal.
And he saw a perceptible trend upward in the rate of dismissal and
came up with some proposals of how to meet Twombly’s requirement
in terms of what, a Title VII complaint? And I think we’ll see more of
that, assuming Congress doesn’t push back with legislation, which is,
you know, is pending.
MS. BRACEY: Right, right.
JUDGE FACCIOLA: That’s a very, very; I think that’s a very important trend that bears a lot
of watching.
MS. BRACEY: And would you like to see it go down, I mean, or you want it to be
accurate, and sort of —
JUDGE FACCIOLA: Yeah, I think there’s a fine line. This professor convinced me, that for
example, in a Title VII action you should at a minimum say, what was
the discriminatory act, and what its consequences were, all right? And
conclusory pleadings are just not going to do it. And I think Rule 8,
that’s what Rule 8 means, a short, plain statement. So, I think that
trend is good, but it may be of academic interest if leave to amend is
always permitted. So, that really was where the rubber is going to
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meet the road. I don’t know, we’ll see. But in the pro se cases it could
have a very dramatic impact.
MS. BRACEY: And it seems like it already is.
JUDGE FACCIOLA: It seems like it is, yes. I’ve even heard the verb, oh, I think that should
be “iqballed.”
MS. BRACEY: Wow, and once it becomes a verb.
JUDGE FACCIOLA: Once it becomes a verb, it’s like Kleenex, you know, we’ve got a
problem.
MS. BRACEY: Right, in Xeroxing.
JUDGE FACCIOLA: We got a thing in Xeroxing, yeah, so. But I think that’s, if you ask me
one of the most, one of the most significant developments that I’ve
seen in the past five years, I’d say it’s impossible to exaggerate the
importance of Twombly and Iqbal. They could have a very dramatic
impact.
MS. BRACEY: Let’s turn for a moment, to sort of your memorable and difficult cases.
And right now, you’re sort of on the forefront of this e-discovery
thing, if you want to talk a little bit about that.
JUDGE FACCIOLA: Yeah, interestingly enough they are not the most difficult. I don’t
know why or how this happened. But I’m comfortable there. In 19, I
guess 97, there came before me, the McPeek case. And it was the first
case I ever touched that had anything to do with electronic discovery.
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And I got thinking about it and I said, “Well, this is a situation where
we’re going to have to measure cost against benefit.” And I
remembered the principle of marginal utility from my economics
courses and I said that the value of doing any more discovery than
we’ve already done is at the margin. And the next thing I know I’ve
created a test for e-discovery of marginal utility. I did, really? You
know, it was news to me. But that began my involvement in that. And
my involvement took a lot of different forms. But the two most
significant were my involvements with Georgetown in the CLE
programs devoted to e-discovery at the Law Center and my work with
the Sedona Conference. Georgetown is the more traditional CLE
while Sedona is a conference. It has more of a goal of creating the
best practices that are going to be used. And I’ve been involved in
Sedona, for, I guess, about 10 years now. I serve on the Advisory
Board, the Advisory Board of Judges who try to govern the
conferences, to what are appropriate topics on how things should be
approached. And then I work on various working groups. To get back
to what we were talking about, most specifically on the one I like
working on, is proportionality, cost and benefit analysis, and all of that
in terms of the overall trends. I’ve also done a lot of work at Sedona
in a lot of different areas. In complex litigation, with particularly
attorney-client privilege and Rule 502. So, those two aspects have
predominated. Then throughout the year there are other opportunities
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to speak. And the D.C. Bar, then groups that ask me to speak in front
of them. And I particularly like speaking to records managers, to
operation people in corporations. Because they tell me how it actually
works and what their actual problems are with the technology
constantly jumping ahead. And then I got involved with something
called the RSA. The RSA is named for three Israelis who created a
security company. Security in computers is very much related to
cryptography, because it’s really, when you think about it, the same
principle. It’s a kind of coding. And when I went out there I think I
was like the dodo, I was the first judge anybody had ever seen. And I
thought, well, this isn’t going to work, and because they first began
talking about things that frankly I didn’t understand. And then I was
on a panel and I looked around and realized, God I’m the only guy on
this panel without a PhD from either Cal Poly area, or MIT in
advanced mathematics. This is going to be fun. This is going to be
something. But I began to learn a lot and they began to learn
something from how a judge looks at these issues. So, now I have a
really pronounced interest in information security. The security of
information. How do we know that this thing is produced by the
computer and it is what it purports to be? That’s what RSA does.
That leads me into other issues in terms of protection of that data from
invasion by others and so forth. And to the general questions of
security. And I never stopped learning. Serge Jorgensen was a
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speaker last year and he got talking about encrypted data and the hard
drives and all of this. Serge did a survey for the Transportation Safety
Administration, and I still find this hard to believe, but it is true. Last
year, how many laptops do you think were left at the Atlanta airport
last year?
MS. BRACEY: Ooh, I’ve read this. It’s a lot though, it’s a lot.
JUDGE FACCIOLA: Yeah.
MS. BRACEY: It’s like 50,000 or something.
JUDGE FACCIOLA: It is. Exactly right, it’s 50,000. And so, then as recently as yesterday,
the San Francisco Chronicle had a piece where somebody took the
medical records from Kaiser Permanente home to work on them, and
then her car was burglarized. So these kinds of things, the security
community that I’m learning more about led me to think about
authenticity of documentation as well as some other issues. And the
security officials also get involved in production questions in terms of
electronic discovery, trying to create a matrix of having an electronic
records system that is secure but can yield quickly and efficiently that
which is required whether by discovery or otherwise. So, that has
become really a fascinating part of, you know, what I do, and it’s very
interesting. I haven’t had that many, thank God, that many data breach
cases. Let’s hope I never have them. But I had one involving the
V.A., the computer that was lost.
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MS. BRACEY: Oh right, right. That was big.
JUDGE FACCIOLA: That was big. Fortunately there were no damages. They, the V.A., did
a commendable job of cleaning up almost immediately, changing
passwords, setting up a place where people could go. And fortunately
no one was harmed. One guy had to wait one day to get mortgage
clearance cause there was some confusion about his bank records. But
that was cleared up.
MS. BRACEY: So, tell me a little bit about how the marginal utility, the principle sort
of has . . . . . cases . . .
eJUDGE FACCIOLA: Yeah, McPeek sues the Attorney General. McPeek is at the Bureau of
Prisons. And he says that things start going downhill for him when he
rejects the homosexual advance of the Director of the Bureau of
Prisons, which is quite startling accusations because the Director of the
Bureau of Prisons is Mike Quinlan. I used to represent Quinlan when I
was at the U.S. Attorney’s office, known him for years, and he was a
pretty upright, and standup guy. Well, in any event, so it was, the
question became that there were some e-mails that transpired back and
forth at a particular point in time, and they couldn’t be found. And the
question was whether you should search the backup tapes to find them.
And I said that the search had to be, whether you do the search, had to
be function of marginal utility. How likely is it that that search will
yield what we’re looking for? So, we did it in two stages. Stage one,
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we did a cursory review to see where the stuff might be. Then we
stopped. And the second McPeek decision deals with the question of,
given what we know, is the additional search worthwhile? And I
concluded that it was not. Because what was on the backup tape was
so distant in time from when these events occurred that it was
inconceivable to me that people were still talking about his departure
nine months after he left. So, that’s how marginal utility works.
Marginal utility is nothing more or less then what Rule 23 says. That
in determining whether how much discovery to permit_______, you
take in these factors and it’s a broad discretionary judgment. Now the
question is how do you do that cost-benefit ratio in terms of evaluation
of the case and this amount of discovery? I said in McPeek, we cannot
have a system where we spend $300,000 for an e-mail. And I still am
of that view. Now the question is, how do we balance those two
factors, how do we find what we’ve got to do? And that’s a legal
question, it’s also a technology question. Because as search
technology becomes more sophisticated, ever more sophisticated, there
is a shot that the cost of search will go down. What’s defeating us is
storage capacity. Because storage capacity keeps increasing
geometrically, there is very little motivation to have a true records
management policy and throw things out you don’t need anymore.
And that’s what we’re seeing.
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MS. BRACEY: Well, other than discovery, other than it might be found, you know,
sort of, the trend to have the automatic delete from your inbox, and
that sort of thing.
JUDGE FACCIOLA: Yeah. And so, that over the period of time in Sedona, Sedona working
groups worked on various things and then a bunch of us got thinking
about the possibility of seeing if we could come up with a new
paradigm. And to that end, I guess it was last year, we promulgated
what we call the Sedona Proclamation Cooperation in which we urge a
cooperative attitude towards this. And we’ve gotten so far 100 judicial
endorsements of it. So there’s a working group applying the
Cooperation Proclamation, for example, to in-house counsel, from an
in-house counsel perspective, then from litigation counsel, from an IT
department, from a judicial perspective. And so what we’re trying to
do is build up a series of two kits that people can use in an effort to
cooperate without jeopardizing their client’s interest. Now whether
that model will become the model remains to be seen.
MS. BRACEY: And who, what, who makes up the Sedona Conference, and how did
you —
JUDGE FACCIOLA: The Sedona Conference is the brain child of a man named Richard
Brayman. Richard was once a hard-charging plaintiffs’ antitrust
lawyer, who always wanted to put together a think group that would
step back a bit and think about these issues in several areas. And they
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were electronic discovery, antitrust complex litigation, patent, in those
four areas. The idea behind the Sedona Conference is that unlike the
traditional CLE program you see, membership is restricted to a group
of people who are committed to it. And those people are really a
working group. They are working towards the ultimate creation of
best practices and guidelines in these various areas. So, then they are
published and then refined as time goes by in each of those areas.
MS. BRACEY: And how did you join?
JUDGE FACCIOLA: Ken Withers (was at the A.O.) and I had known each other. And after
the McPeek case there was some interest in some of my thinking on
this issue and I was invited. And I’ve been involved ever since.
MS. BRACEY: And you’ve also gotten some press for the Center for Responsibility
and Ethics in Washington?
JUDGE FACCIOLA: Yes, I did. That was the White House backup tapes. Yeah.
MS. BRACEY: In U.S. v. O’Keefe?
JUDGE FACCIOLA: Yeah. O’Keefe dealt with two men, one of whom is accused of bribing
the other to get visas out of the Department of State in Canada, and it
involved searching the Department of State records. And O’Keefe and
another case that I worked on, I got thinking a lot about search
terminology and expressed my concern in that case, that that might
involve a more sophisticated expertise than most lawyers had. And
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that led me to do some more thinking about technical competence,
which has become, you know, one of the things I’m really interested
in. I guess it was two years ago, I spoke at the New York Legal Tech
about that, and I’m surprised they didn’t ride me out on a rail, but I
expressed my concern that a lot of lawyers who appeared before me
didn’t have any understanding of any this, and it was getting scary.
MS. BRACEY: Sort of like, what they were asking for, search the backup tapes —
JUDGE FACCIOLA: Or, yeah, they had no idea. Let’s search this. Or, you know, in
criminal cases, we had a child pornography case in which it was
important to understand how the police were capturing the information
in the chat room. And the lawyer got up, who represented the
defendant, he said, “You know, Your Honor, I just don’t understand
this computer stuff.” I said, “Come here.” I said, “You can’t say that.
Now you’re confessing your ineffectiveness. This is absurd.” And
I’ve been, so at the New York Legal Tech I try to bring all of these
into my thinking to bear on this, and I pointed out that I live with two
people, my wife and my son, whose competence to do what they do, is
tested on a yearly basis. This morning, at 6:45, as I was going out the
door, my son was getting, or grabbing a glass of orange juice, and I
said, “How did you do?” He said, “Fine.” He had his certification test
last night, he’s 33 years old. And he’s certified in three areas. He’s
certified as a network administrator in computers, he’s certified as a
coast guard captain, and he’s certified as a scuba diving instructor,
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okay. My wife is going to class to get her certification. Then I turned
to the audience, and I said, “My capability to do my job was last tested
40 years ago.” Oooh. And I said, and when I say, when I propose that
the bar give serious thought to certification in this area, in meeting
certain conditions in doing what other industries do, and there is a lot
of back talk about that. I will say, “Okay, somebody name the last
lawyer in America who got disbarred from being incompetent. If
doctors were trained and certified as poorly as lawyers, we’d all be
dead.” So, this is very controversial. And I can see when it comes to
certification there are concerns. There’s a licensing concern.
Licensees have a tendency to be monopolistic. There are politics
involved. For example, in Michigan the private investigation industry
got concerned that forensic scientists would start taking their business
so they prevailed among the state legislature to pass a law that requires
forensic scientists get licenses as private investigators. So, that
licensing can be out-and-out monopolistic and I concede all of that.
And I’m one of the few judges who believes in this. But I’ll continue
to believe in it. I believe what I’ve learned from this is that these are
highly complicated areas and it is well worth it for us to take a hard
look at the people who do it. You could say, I suppose, well the
market will work, right? The market will, as this becomes more and
more prevalent as we go to medical records. I mean, for crying out
loud, Jiffy Lube has a computer. The market will insist that lawyers
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have this capability and this understanding. Well, I don’t know, but
while we wait for the market we ought to have some other way to do
this. In the computer industry itself, there is a constant process of
certification. And the people in it take great pride in the certifications
they get and they work hard to get them. And they don’t quite
understand why the lawyers with whom they work don’t have equal
obligations. And I don’t either.
MS. BRACEY: And no one really wants to fix that.
JUDGE FACCIOLA: Well, as I say, I think, I think it is fair to say that the market will do it.
I mean, I’m already seeing how lawyers who build up a competence in
this area, the world beats a path to the door, and they’re making a lot
of money. One supposes that the race will be to the swift. And the
lawyers who don’t want to get involved in this will find something else
to do with their time. But while we wait for all of that to occur there
are other problems that I think that have to be addressed.
MS. BRACEY: And there will always be people who still get the business cause
they’re cheaper even if they don’t understand.
JUDGE FACCIOLA: Yeah, but that would be a terrible cost for those people to pay ‘cause
they just may be represented by people literally that don’t know what
they’re doing. And the impact of this is not just isolated to the market
place. It has a significant impact on the judicial system, because what
we found and I think everybody agrees, and why Sedona came out the
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way it did on the Cooperation Proclamation is that cooperation is a
function of competence. The more competent the lawyer, the less
intimidated, and the more willing to talk to the other side. Let’s try
these search terms; my guy says this, what’s your guy say? What are
we going to do about this, what are we going to do about that? When
you have asymmetrical parties before you, one with a lot of
knowledge, and one with none, that’s when the judicial role increases
markedly.
MS. BRACEY: And so, do you find yourself doing a lot of educating?
JUDGE FACCIOLA: Oh yeah. One of the reasons I do as much lecturing and speaking and
writing as I do is because I want to be a part of that process. I think
it’s a crucial process. And when my career ends, I don’t know if I’ll
be remembered more for being the judge than being the lecturer. But I
don’t care, because I see them as intimately connected.
MS. BRACEY: And how, and do you also have to do education with the litigants who
are in front of you, in the courts?
JUDGE FACCIOLA: Yeah, but they welcome that. You know, as recently as this morning,
there are, the parties were having difficulty there, and I said I had
some ideas I want to share with you about how we might be able to do
that. And one of the elements of the Cooperation Proclamation is it
takes as a given, judicial intervention at the earliest possible time to
prevent problems before they occur. And I take that very seriously.
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Please, I don’t need 50-page motions, get in here. What’s the
problem? Well Judge, he says that he can’t get this e-mail system,
because you know its legacy data. I don’t think it is. And I say, what
does your expert say, what does your expert say? Let’s get them in
here, maybe there’s a way to do this. All of this is quite revolutionary
in the way judges deal with things.
MS. BRACEY: As opposed to waiting?
JUDGE FACCIOLA: As opposed to waiting, and as opposed to waiting for the traditional
adversarial briefing, and that, I just don’t think that’s a luxury we have
anymore. Now maybe, you know, an economy in a downturn may
teach everybody that lesson anyway. The lawyers are telling me that
the clients are not going to pay for this kind of discovery. So, the
problem may quickly take care of itself, I don’t know.
MS. BRACEY: Can you talk about the White House backup tapes?
JUDGE FACCIOLA: Yeah, it was a terribly complicated matter. And as I say, I was blessed
by the fact that my law clerk at the time had made a living as a
computer programmer. And over a period of time I really had to learn
very quickly all the technical requirements of two very complicated
systems. And then I made the rulings I did. I don’t remember exactly
if they were appealed. But I thought the most interesting aspect of the
case is when I got caught between the transition between the two
administrations. And wondered what was going to happen. And what
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the new administration would do. And in my opinion I describe
myself as being between a rock and a hard place, with 48 hours before
the new administration arrived. And as I, what I did was I put all of
the information in the custody of the archivist. And that seemed to
resolve it. And the case has now been resolved and stipulated. So, I
was very pleased by all of that. And it was complicated, it was
difficult. Because again, you had a relatively diverse system in a way
of keeping things without uniformity. And a system that changed as
time went by as all systems do. So, in a sense it was aberrational
because it was the White House but it, in a sense it was very normal as
a reflection of American business constantly being forced to make
technological change when the consequence of that technological
change maybe to obliterate it or destroy the data that’s there, even
though everybody is working in good faith. So, in that sense it was
unusual but it was very normal and it was a good education for me.
MS. BRACEY: And what did the parties want in terms of just, so when everyone
listens to your history, they know sort of how the —
JUDGE FACCIOLA: Well, yeah. The plaintiffs contended that due to deficiencies in, due to
the changes that the Bush administration made in the way records were
kept at the, in the White House Office of Administration, that e-mails,
a large number of e-mails had disappeared, all right? So, the whole
theory of the case was, where are they, and can we find them? And
what can we do to restore back online from legacy sources, from other
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data, where this stuff might be. So, the heart and soul of my job was
try to figure out all of the available depositories of this information and
what we could do to preserve them, so that they could ultimately be
searched, and we could ultimately determine where this material was.
MS. BRACEY: And when you said during the change in administration, what did you
do, you had everything sent to the Archives?
JUDGE FACCIOLA: Well, what I did was, I made the archivist who was already a party to
the laws of the custodian of all of this information so that it would not
go into a lacuna. And that must have worked because I saw last week
they stipulated to its dismissal. But, in that, in the opinion, I think it
was interesting in that the opinion is the opinion written by a history
major. I kept talking about how important, that this is the nation’s
history, you know, and I think in my final opinion, I quoted Napoleon.
He said, he didn’t really much care who wrote France’s laws if he
could write its history. And that’s how crucial all of this stuff was.
And I’m sure the White House thought I was a pain in the neck. But,
in the long run, we did preserve for history an enormous amount of
important information. And that leads, of course, to how we’re going
to grapple with that problem in the future. You know, they say that
this administration is particularly tech savvy and they must be, every
time I see them, somebody is on a Blackberry. So, you know, if the
president serves for four years, he may, his administration may
produce a billion e-mails. When they show Iraq on the TV, they go
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into the tent where the commanders are; do you notice they’re all on
computers? What legitimate military historian would write a history
of our engagement in Iraq without reviewing the e-mails of the
commanders and everything else? It’s inconceivable. It’s the very
stuff of history.
MS. BRACEY: It’s also so much of it is in pictures, and the e-mail, and so like many
things were discovered because pictures were e-mailed to family and
friends, and Facebook, and —
JUDGE FACCIOLA: Of course, visuals. Of course, yeah. So, it was, it was very interesting
and I liked it because it was pressurized; it’s almost more fun to be
under tremendous pressure to do something and get it done than it is to
have a more leisurely pace.
MS. BRACEY: And given that your background with the technology and you had the
law clerk’s background with the technology, did you feel like you
were sort of ahead of where the litigants were, or were they —
JUDGE FACCIOLA: I was where they were.
MS. BRACEY: They were where, okay.
JUDGE FACCIOLA: Yeah, I think we were all fortunately on the same page. It’s a rare case
when I’m ahead of them. I’m lucky to be on the same page. I’m a
little more likely to deal directly with the experts. In the first couple of
years, I had promulgated what I called, “Facciola’s Law,” which was:
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Don’t ever listen to a lawyer when he uses the word computer in a
sentence. Because like many judges I had lawyers get up and say,
“Oh, Judge we can do that.” And of course they couldn’t. Or, “Judge
we can’t do that.” And they could. So, I, I was always, I would say,
“Okay, is that your expert, Mr. Jones? Mr. Jones get up here, tell me
about this.” So, that was a way of jumping over that. Now as lawyers
become more sophisticated, I don’t have to do that. But, as I say,
we’re back to competence again. We never can run away from that.
MS. BRACEY: Okay.
JUDGE FACCIOLA: And we don’t test for that, you know? We don’t. I don’t know. It’s
interesting, we have to be the only profession on earth that goes
through education and never takes a test.
MS. BRACEY: Right, right.
JUDGE FACCIOLA: You know, so. You know, you go to a CLE program, because they’re
mandatory and there are three people paying attention, three people
doing the crossword puzzle, and you know, and that’s why
Georgetown and Sedona are alternatives to that, you know.
Georgetown emphasizes the academy nature of the place. Sedona,
you’re not here to sit on your butt and take notes, you’re here to work,
this is a working group, and we want to hear what you have to say.
That’s why I think, together they’ve had a real revolution in the way
legal education is done.
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MS. BRACEY: Have you, do you want to talk a little about your most difficult cases?
You said that the electronic discovery ones are not the most difficult.
JUDGE FACCIOLA: Yeah, well, difficult in the sense that one has to spend some, all right, I
mean, you know, if it’s attorney-client privilege, I know what
attorney-client privilege is. But, I don’t know until I’ve learned it,
how the technology of how the White House keeps its e-mails, so
that’s the difference. You know, it’s funny, when I look back over it,
the most difficult cases I’ve had, the most complex cases I’ve had,
having involved large accumulations of data, and getting my hands on
them. I think uniquely, Magistrate Judges find themselves at the
bottom of the food chain, in the sense of, you know, we’ve got five
thousand documents here, somebody’s going to have to look at them,
and it’s going to be you. So, those have been most complicated
because they have been involved in the necessity of managing an
immense amount of data which then serves as the premise of the legal
conclusions that have to be reached. And that requires the skill of
organization. Where is this stuff? And so forth and so on. Going
through it word by word. Now, the question is whether or not that
luxury will continue to exist in a computerized future. You know, it
was relatively easy when I first became a judge to say, “Okay, you say
its privileged, you say it isn’t, let me see it.” Now that there are 7,000
documents, yeah, how are we going to do that? So the complication
has arisen in my case, not so much from the legal issues, as the
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conquering of the data sets, will I understand what factually this is all
about? Certainly in terms of difficulties, I had a 21-day trial with
issues popping up. And I thought that was very challenging and
demanding.
MS. BRACEY: What kind of case was that?
JUDGE FACCIOLA: It was a breach of contract case, basically. The interesting thing about
what judges are finding, is the day never ends, because of e-mail. In
other words, you’re trying a case and you finish at 5:00 and you came
here at 7:30 in the morning and there are five e-mails with lawyers
trying to raise issues. Your Honor, we want to see you this morning,
and so forth and so on. So, trials are very demanding because you find
you have to work, literally it’s a 12- or16-hour day, and all weekend,
because then you got to do your instructions and rule. I have a
tendency to memorialize a lot of my trial rulings in writing. So, I write
a lot of opinions during a trial, and I find that it’s very demanding. In
terms of the most challenging, two of my big electronic discovery
cases have been particularly challenging because the issues kept
coming on us, and we had some really grave difficulties with
information that was on servers that no longer existed, and so forth.
And they prove it very challenging. Challenging because it was and is
so difficult to draw the line between how much more can we do, and
how much money is that going to cost, and is it worth it? That’s very,
very difficult.
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MS. BRACEY: And do you have to deal with this, sort of the one-email syndrome?
Where can we find this one e-mail . . . . ?
JUDGE FACCIOLA: Yeah, well I think the better. The smoking-gun syndrome. You know,
it’s like the old joke about the, you know, the kid. There’s the story is
told the family has an optimist and a pessimist kid and they take the
pessimist kid and they put him in a room full of toys and they come
back in half an hour and he’ s broken all of them, and he’s sitting there
crying. And they go in the room with the optimist and they filled it
with horse manure and he’s in there with a shovel saying, “Santa Claus
left me a pony and I know it’s in here somewhere.” All right, so the
problem is lawyers are trained to find everything that is important and
everything that is relevant. And the problem with doing that is, it may
simply be impossible to do because the data set is so big. One of the
great frustrations is, you can really kill yourselves and get all of this
stuff and find out that it’s monumentally insignificant. And that’s
another gigantic problem. It’s hard for me to say, what were the most
difficult ones because difficult would suggest, I think in all, the legal
issues have been interesting. That fact that I’m going to write is a
clear indication that it’s not settled and I’ve got some work to do. But
I don’t remember any one where I felt, you know, I’ll never get out of
here. Some are longer than others. I had a very challenging situation
involving a lawyer, gosh it was difficult. He, poor guy, his life
collapsed around him, and during the middle of the case he got
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indicted and he was representing some very poor people in Texas and
involved in that was just an absolute nightmare. It was very, very
complicated, and very, very difficult. And because of that, it just made
it hopelessly complicated. But I can’t think of any of them where I
said, where I ever said, this is impossible. I always kind of think,
there’s a way out. And there usually is.
MS. BRACEY: And that means in sort of a settlement kind of case? Or in a —
JUDGE FACCIOLA: No, in terms of intellectually. You know, I’ll get through this. And
some are difficult simply because they take so long; been around for so
long, require work for so long. There is an exhaustion level that sets
in. And that’s something a judge has to fight. The solution there is to
go for a walk, a good long walk. Don’t let it get you down. This too
shall pass. That’s difficult. Because you so desperately want it to get
done, but it may be a very good idea to put it aside over the weekend,
not come in and hit it fresh on Monday morning. Then you say, “Oh
yeah, that’s what I meant, sure, yeah, yeah, I see.” That’s a fine line a
judge always draws.
MS. BRACEY: And do you have any in particularly sort of memorable cases?
JUDGE FACCIOLA: Yeah, gosh. Well, the White House backup tapes was very exciting,
the arrival of the new president and all of that. I can’t think one that I
didn’t enjoy. I mean, I really had a lot of fun. And in each one of
them, there was something that really engaged my intellectual interest.
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So, I can’t think of any that sort of stand out and say, “Oh my God,
why did I get this one?” Obviously, patent cases are tougher, they’re
arcane and you have a lot to learn very quickly, but you got to do it.
And we’re generalists. That’s the great thing about the job. I have
never heard a good argument for a specialized judiciary. I think that’s,
you know, how judges have handled this kind of thing, in a special
court for this, and a special court for that. I suppose so, but if you do
just one thing all of your life, you never get the cross-fertilization of
learning from other things.
MS. BRACEY: This could apply to —
JUDGE FACCIOLA: Well think about it. For example, it was only thanks to the problems
that arose from electronic discovery that caused anybody, particularly
Judge Grimm, to look at attorney-client waiver, which gave, which
was the genesis of Rule 502. So, if we had Judges who did only one
thing, that process would never occur, that kind of cross-fertilization.
And you see that every day sitting there. Wait a minute, you know,
this relates to this. That’s important. And I’m not so sure if you have
this homing in on one thing you get that.
MS. BRACEY: Can we talk a little bit about – you said you also had an interest in the
attorney-client privilege; you just touched upon that with the ediscovery.
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JUDGE FACCIOLA: Well, yeah. What happened was the lawyers were saying to us, in the
early days of e-discovery, we’re getting killed here. Because we’re
going to have to go through each piece of paper, or each e-mail to see
if there’s anything privileged and this is costing us a fortune. And
Judge Grimm leaped on that in a case called Hopson. And he said,
Well, wait a minute, a compelled disclosure is not a waiver. If the
parties make an agreement then merely seeing something that would
be privileged is not in itself a waiver. Then that may be, and I blessed
that as a judge that would bind them. But then the question is how do
we bind the whole world? But Paul’s opinion led to consideration of it
and it became Rule 502 which now defines the circumstances under
which there is a waiver and says that it’s limited and limits it. And
that was a direct product of that thinking. So, there was a situation
where an issue that arose in electronic discovery cross-fertilized the
evidence rules. In other words, what I’m saying – and I’ve got an
article about this coming out pretty soon – in a sense, is that we’re
kind of blowing up the law school curriculum in the sense of its
segregation. You know you study conflicts here, and then you study
jurisdiction here, the problem is all of this stuff cuts across that you
maybe going to have to revise that curriculum. You know, someone
says, well, why don’t you teach a two-credit course in electronic
discovery? And the answer is: I don’t want to teach a two-credit
course in electronic discovery because that suggests it’s some sort of
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arcane thing like a two-credit course in international arbitration. No,
no, no. That lets you off the hook. The real question is how are you
going to modify your course in civil procedure to live in a world where
all discovery is going to be electronic? Or, you know, how are you
going to look at evidentiary issues in this world where fundamental
information is produced electronically? You see what I’m saying?
MS. BRACEY: Right.
JUDGE FACCIOLA: So that, we keep blowing up the curriculum. And, it’s a very fertile
time and we’re going to have to put it back together again.
MS. BRACEY: And make it —
JUDGE FACCIOLA: Well, yeah and make it principled.
MS. BRACEY: Make it useful.
JUDGE FACCIOLA: Yeah.
MS. BRACEY: Do you think, and this sort of opens up a different topic of, do you
think there are other ways it should be changed, given what you have
seen?
JUDGE FACCIOLA: Yeah, I, in my life, I think it probably was either the first or second
class at Georgetown that actually had electives. For many years
lawyers were told what to take. And they were told what to take
because they had to meet certain requirements to take the bar, or ABA
requirements for certification. That all exploded and the traditional
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mandatory curriculum went out the window. And was replaced by a
pure elective system. I mean, I assume people keep taking the same
things. But my concern there is I don’t think you should become a
Johnny One Note in your first year of law school. I think the breadth
of your education is important. I remember a young woman, really
brilliant young woman, and she decided at the end of college that the
only thing she was interested in was international human rights. And
had no interest in taking corporations, or taxation, or anything else.
And I told her dad, who is a physician, that your daughter has seen a
toenail and she decided she wants to be a podiatrist. And she ought to
allow herself to see these things; how this all somehow comes
together. And I can’t tell you how many people at Georgetown when I
started who thought they were going to be patent lawyers and were not
patent lawyers, or whatever. So, I think there is a genuine interest, or
should be a genuine interest in the law schools in giving people the
breadth of experience, and resisting any temptation on the student’s
part to become a Johnny One Note. And if that means you are
required to take certain courses, so be it. I don’t know.
MS. BRACEY: How do you balance that with the people who say, but I need a job.
And it’s nice if I’m more marketable if I’m a, you know, a patent
lawyer.
JUDGE FACCIOLA: Yeah, I guess so. Oh yeah, I’m not saying that. I think that it’s
perfectly legitimate to specialize at some point. But not at the cost of
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not doing anything else. I mean, when I taught trial advocacy,
students said “I’d like to take trial advocacy” and they hadn’t yet taken
evidence or civil procedure. I said, “What am I going to teach you?” I
mean, you know, look at square one. So, I don’t know how law
schools resolve that. But in terms of electronic discovery, certainly
one could make the argument that the curriculum could be revised in a
lot of different ways. And I use the word curriculum broadly to
include post-graduate and CLE programs. For example, we might just
want to take a topic like creation of information, and look at it from a
lot of different perspectives. We’d look at it from a constitutional
perspective. We’d look at it from the perspective of intellectual
property and copyright. We’d look at it from the perspective of
defamation. We’d look at it from the perspectives of privacy
protection. That’s the kind of thing I’m talking about.
MS. BRACEY: And you put some e-discovery in there too.
JUDGE FACCIOLA: Of course. Yeah, you see what I’m saying, yeah.
MS. BRACEY: Right. Who is going to come look at it? And your work with Sedona
and the attorney-client privilege is sort of —
JUDGE FACCIOLA: Well, yeah, we’ve looked particularly there. The piece I wrote I think
was called, Sailing on Rough Seas, or something. It was just before
502 came out, and I talked about the problem of the expenditure funds
in doing that. And then when 502 came out we had a special session
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in complex litigation on 502 and it’s so intimately related to electronic
discovery, that continues; I don’t know if they’re going to address it
this year, but there’s still a lot of work on that as well.
MS. BRACEY: Do you ever have any, or can you speak about sort of instances of
personal conflict between, you know, the rule of law and your personal
philosophy?
JUDGE FACCIOLA: Yeah, I think so. My first problem is, I’m not as convinced as I was
many years ago that the adversary system is the future. I think there
are a lot of problems. For example, ethically lawyers view the
adversary system as an absolute, and therefore has absolute
requirements upon them. I simply think it is one way of resolving
disputes. It may be no better or no worse than other ways, but there’s
nothing sacred about it. And I think there is a tension in, always in my
mind between a lawyer’s zealous advocacy and my perception that this
is a fight over nothing. And this client should not be paying for this.
This is just not right. I find that to be a deepening concern on my part
where there is a conflict. In terms of other aspects of that, I mean, I
have never found any conflict between what I personally feel and in
my criminal obligations. Blessedly, I don’t have any kind of final
responsibility in capital punishment cases, which would be, as a matter
of my faith, very difficult for me to handle. But at the same token, I
do find that my, in sentencing that my personal views do enter in. I am
becoming more convinced that the lock ‘em up mentality isn’t going to
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work anymore. We’ve got a small window of opportunity to where
people get out of jail to begin the process of the transformation. And I
love being involved in that process. And I’m sure the U.S. Attorney’s
office would describe it as being too patient. But my own personal
views intrude there to require that patience, particularly when the
violation is not outer-directed but inner-directed. In a recent opinion, I
said of one of my defendants, when Mr. Jones looks in the mirror he
sees his own worst enemy. Every time I try to get him a drug
program, he lasts 30 days, and then flunks out of it. He’s got mental
problems. I put him in therapy and he flunks out. You can see why
the U.S. Attorney says, “Come on for crying out loud, throw the guy in
jail.” Well, as long as he’s not hurting anybody, I’m going to go that
extra mile. So that’s a point where I don’t see there’s a conflict but
there is, there’s a tension between lock ‘em up, lock ‘em up, and what
I personally believe.
MS. BRACEY: And you make the recommendations on sentencing to —
JUDGE FACCIOLA: I make the, when the guy has violated supervised release. I’ll make
those recommendations.
MS. BRACEY: And then mostly followed?
JUDGE FACCIOLA: Very rarely is there any different view.
MS. BRACEY: So you are, sort of the, you mentioned you weren’t sort of the final
decision maker in death penalty cases, but —
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JUDGE FACCIOLA: Yeah, thank God.
MS. BRACEY: Just because there aren’t that many? Or is it —
JUDGE FACCIOLA: It just works out that way. I don’t try the case. And I don’t sentence
the defendant. Somebody else does.
MS. BRACEY: So let’s move a little bit into the jury system.
JUDGE FACCIOLA: Yeah, God bless them. I’m a great believer in the jury system and I
have said on more than one occasion to anybody who will hear me, I
would not live in a country without the jury system. It’s as simple as
that. You know, if history teaches anything, it is that governments are
always looking for more power. And the resistance to that assertion of
power has to come from the people themselves and it does in jury
trials. And I have loved juries; I get along with them famously. And I
say it, you know, people look at me like I’m crazy, and I say it again, I
will not live in a country without a jury system.
MS. BRACEY: And how many jury trials do you see a year?
JUDGE FACCIOLA: Unfortunately, not as many as I would like. Maybe one or two.
Which is a general trend, you know. We’re seeing an America, we try
very few cases and that’s just the way the dynamics of that have been
studied by a lot of different people. But the net effect of it is there’s
just not much, there’s just not many cases to try.
MS. BRACEY: And what do you do, criminal jury trials?
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JUDGE FACCIOLA: No.
MS. BRACEY: Okay. You do civil jury trials.
JUDGE FACCIOLA: I can pick a jury to try a criminal case, but I can’t try it.
MS. BRACEY: And what is it about jurors that you like?
JUDGE FACCIOLA: Their common sense. Their extraordinary dedication and willingness
to put down what they’re doing and get involved in the process. The
fact that they quickly can be comfortable, get comfortable with people
they’ve never seen before and become close to them. The fact that
they, they truly try to do their jobs. I mean, people who bitch about
the jury system ought to remember that in the Kevin Gray case there
were 180 counts in the indictment and the indictment was God knows
how many 100 pages long, the jury found 3 typographical errors.
Showing how careful they were. How demanding. So, as I say, is
there a better way to do it? Yeah, show me. I’ll be glad to listen. But
I can’t think of one. You know, the British whom I admire deeply,
have eliminated jury trials in civil cases. Yeah, so be it. But I’m not
one of them.
MS. BRACEY: Do you sort of have any thoughts on the state of the judiciary now in
terms of a lot of the vacancies and getting things done?
JUDGE FACCIOLA: Yeah, we desperately need some help. You know, I just don’t know
where this is going. I mean, we’ve got four vacancies now and it’s
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starting to hurt. It’s pretty obvious. That’s true generally all over the
country. Yeah, we’ve got to get cracking. I just don’t know what the
answer is, but you know. And now there are rumors flying around
town that Stevens is going to retire. Well, if Stevens retires, the
Judiciary Committee will focus on his successor to the exclusion of
everything else.
MS. BRACEY: Right. It happened with Sotomayor.
MS. BRACEY: Yeah, it happened with Sotomayor. So, that could mean that our
vacancies, even if Congresswoman Norton gets them out, let’s say by
the end of January, we still may be looking at early fall at the earliest.
And it takes months and months and months to do this. I was always
stunned that how long it took the FBI to vet me after I was appointed.
I was Assistant United States Attorney for 15 years.
MS. BRACEY: Right, you’ve been vet.
JUDGE FACCIOLA: Yeah, I mean, yeah, but I am concerned about it. And as bad as it is
here, in the border states, it’s horrible. Magistrate Judges are just
overwhelmed in those states.
MS. BRACEY: And how does it effect, does it mean that things get done more slowly,
does it mean —
JUDGE FACCIOLA: And this court is particularly burdened with the Guantanamo cases
which thankfully, we don’t, the Magistrate Judges don’t touch. But
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it’s really a perfect storm with everything coming together. The other
thing rescuing us is that the U.S. Attorney doesn’t seem to be bringing
as many criminal cases to us as they used to.
MS. BRACEY: So at least there’s some relief.
JUDGE FACCIOLA: There’s some relief. Although the cases they are bringing are the big
monster, 11-week conspiracy trials for, you know, Columbian drug
pushers.
MS. BRACEY: None too complicated, I mean very complicated.
JUDGE FACCIOLA: Very complicated. And large number of defendants, and security
concerns, and wiretapping concerns, and all of this stuff, so it’s tough.
MS. BRACEY: And when they bring a case, they bring a case.
JUDGE FACCIOLA: That’s it.
MS. BRACEY: The Feds, yeah. Have you seen any, I mean, when you came to the
Court, were there that many vacancies, or were, there wasn’t more?
JUDGE FACCIOLA: Yeah.
MS. BRACEY: Okay.
JUDGE FACCIOLA: Yeah, well look what’s happening now is, and it’s happening
universally all over the country, the baby boomers, the Clinton
appointees, are now hitting 65. Just a process of time. So they’re
ready to go. And their vacancies have to be filled.
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MS. BRACEY: Do you think that judges have a broader sort of societal role, or —
JUDGE FACCIOLA: Yeah, I think so. I think, one of the, I learned, I think it was Judge
Wald. I didn’t hear it from her directly, but from another source, she
always warned about the dangers of isolation. You know sitting by a
word processor thinking you run the world. And I’ve done everything
in my power not to get isolated. Which explains why I keep getting, I
try getting involved in the community, through Catholic Charities, and
in bar activities, CLE programs and all of that. They are crucial to me
to live the life I want to live, and not in isolation.
MS. BRACEY: And do you have to go places, where people don’t know you’re a
judge? Like is it helpful to go to sort of be —
JUDGE FACCIOLA: It follows me around, you know. No. Most people ask you what you
do for a living, so it’s kind of hard to avoid —
MS. BRACEY: Right.
JUDGE FACCIOLA: One of my Catholic Charities work, the kids all call me judge, they get
a kick out of it.
MS. BRACEY: But they, I guess they don’t sort of see that they’re going to practice
before you, you know what I mean? Like if you’re in CLEs there may
be people who feel like they’ll be before you someday, or they —
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JUDGE FACCIOLA: Yeah, most of them are. The ones when I do the D.C. Bar. It’s a room
full of friends, you know, hey, you know, give me a hard time. But it
doesn’t really seem to be a problem.
MS. BRACEY: And it’s not difficult to maintain your friendships?
JUDGE FACCIOLA: Oh, no. I’ve done everything in my power to make sure I do. The
Sedona Group, for example, we call ourselves, Sedona in Exile,
because it’s in Arizona. We have lunch once a month, just to stay in
touch, how you doing? And last month, Judges Robertson and KollarKotelly joined us. So that’s a good way of putting people together.
And I’m a great believer in the Inns of Court. I’m a great believer in
all of that. I think judges who get isolated are just crazy, you know. It
just isn’t, it’s not what we’re doing, we’ve got to be reflective of the
community in which we serve.
MS. BRACEY: And do you think that requires effort? Because it seems like it would
be an isolating problem.
JUDGE FACCIOLA: Oh yeah, sure. Yeah, it is. And then it brings all new demands upon
you, because you’re a member of things, but that just comes with the
territory.
MS. BRACEY: And how do you think sort of society views judges – separate from
how you want to be viewed, how do you think —
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JUDGE FACCIOLA: I think there’s a fundamental misunderstanding of what we do. And
there’s a fundamental, unfortunately a misunderstanding of the
operative documents under which we operate. I was looking at the,
there’s one effort to do that, Justice O’Connor and Justice Souter have
done a series of programs for high school kids about what the courts
are like. There’s a good program that I work on, the Marshall-Brennan
Constitutional Literacy course at A.U., introducing it to young people.
But I think there is a fundamental misunderstanding of what we do,
what powers we have, and that is troubling to me. Maybe we’re our
own worst enemies. One of the reasons I write so much is because I
want, the people who pay me, the taxpayers should know what I’m
doing and why I‘m doing it. And I think most judges feel that way.
But they get a little distressed that there’s no understanding. I always
remember a woman who went to the oral argument in the Nixon
subpoenas case and she was sitting there, and she said, she came out
and I asked her what she thought, and she said, “Well I was amazed.”
She said, “I understood every word. I thought they would be talking in
Latin.” Well, we don’t talk in Latin. We talk in English, and we talk
about things that everybody should understand and in a sense lawyers
like to think this is very arcane thing we do and you’ve got to pay us a
lot of money. Well, yeah, that may be true in one sense but it’s not
true in the sense of understanding what judges do. And I think that
there is concern on my part, that there’s a fundamental
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misunderstanding of how our powers relate to legislative power, how
we are supposed to be limited, how we are supposed to be deferential.
Here, The People Rule is one of my favorite books and understanding
what judicial review is and so forth. There are also is I think in the
criminal law a failure to understand that if man’s rights have been
violated, his rights have been violated and there has to be some
consequence of that, even if that consequence is letting him go. And I
think there is a perception encouraged by some people in our society
that, for example, juries go crazy and they give away mountains of
money. I can’t tell you how many voir dires I’ve had in which people
have not pointed to the McDonald’s case where the lady spilled the
coffee. The insurance industry apparently did a wonderful job of
having everybody see that’s how things go. My daily experience is the
precise opposite of that. So, I’m worried about that and to work
against it, I bring kids here to do a moot court before me in May and
talk to them a little bit about the history of this court, and getting
themselves involved in the system. And they love it. And a marshal
comes by and talks about what he does, and court reporters, and court
clerks, everybody does it. And I think that process is never-ending.
But certainly we, I don’t know about, if you would agree with me, but
the tone of civil discourse in this country is going terribly wrong.
Most things you listen to sound like people who really hate other
people. And that’s not the way it goes. The language used about some
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judges’ decisions by some of these bloggers is just scary. And it’s
troubled me.
MS. BRACEY: It has led to some violence. I mean it has led to some —
JUDGE FACCIOLA: Yeah, you should see some of the things that were said about me after
the White House backup cases. There were references to my ethnic
heritage. And all this wonderful stuff about what a dumb wop I was.
And this kind of stuff is scary. I mean, just yesterday there was Judge
Hogan’s decision on one of the Guantanamo cases. This blogger who
said, who is this fool named Hogan? He’s going to unleash these
dangerous people. Does he give a damn? And we’ve had the judge
who’s presiding over one of the cases involving the claim that the
president was not born in the United States. There’s been some great
nastiness out there and putting on the internet his vehicle so you can
see the license plate, or his home where the apartments where his law
clerks live. A subtle, not a very subtle kind of intimidation of him.
And after Judge Sullivan ruled in a gun case in a particular way, his
face was on the internet in the middle of a target. So, Justice
O’Connor has spoken about this at great eloquence. And I think, I’m
not afraid, and never will be afraid. But, what I am afraid of us is
about a society that has forgotten how to talk to each other. That’s not
what we’re about. It’s just getting very, very bad, and very scary.
MS. BRACEY: Right. And the internet sort of makes it easy to —
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JUDGE FACCIOLA: Yeah, because you can hide. You can be the blogger from Portland.
You don’t have to say your name or whatever. But with that said,
judges are as eligible for fair criticism as everyone else. And if you
can’t take it, go home. People sit at this table during settlements and I
say, “My only desire today is that when you leave, you both hate me
equally.” Because then I’ve done my job. I’ve got you to do what you
don’t want to do. But I would love to see that, the level of that
discourse get back to where I hope it was, where someone says Judge
Facciola said that. I think he’s wrong for the following five reasons.
Not Judge Facciola is a dumb wop. That doesn’t advance the
discourse.
MS. BRACEY: No. And do you think that there are any sort of influences the court
has or that you’ve personally had on any public policy, or should have
any on public policy?
JUDGE FACCIOLA: I think so. I mean I think the 502 was a judiciary at its very best. We
saw a problem. We realized that we had a unique perspective. And
we marshalled our resources and we did the job. And Judge Rosenthal
deserves an immense amount of credit. Not only because of the genius
but because of a shrewd, political maneuvering, and she got it done.
So, yeah. And we’ve done other good things like that as well. And I
think more things are coming in that way. You look at Judge Walton’s
work on rapes, on his work as Chair of that Commission on Rapes.
You look at Judge Friedman’s work on the 100-to-1 crack differential
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and what that has done. You look at the attention it’s brought to those
kinds of things. I mean, in a million different ways judges have an
obligation to try to formulate policy at least in advice to the legislative
body because we see things that they don’t. How likely would a
federal judge like Reggie, how likely would it be that he would
become an expert on prison rape, and yet he did, because he brought
with it the unique gifts of a judge.
MS. BRACEY: And it’s fortunate that you have those opportunities. You know,
you’ve learned, and that if you see a problem and you can act on it.
JUDGE FACCIOLA: Of course, yeah.
MS. BRACEY: What about the impact of, we’ve talked a little bit about the impact of
political events, like the Monica Lewinsky on your life, but what about
sort of social or economic events?
JUDGE FACCIOLA: It’s interesting, in the old days when they actually had Law Reviews in
libraries, I used to take them out from random eras, because they
almost perfectly reflected what was going on in the minds of law
students. It’s interesting if you, that ‘39 through‘45, it was the power
of the federal government to deal with the Depression, and the war,
and the Second World War and the dangers. Then it was the Cold War
and national security. In my era of the ‘60s it was the law and the
urban poor. You know, that was, you know, how the law should be
more concerned about people that were disenfranchised from the
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political process. So, I think the law cannot escape the social and
economic context in which it lives. And they always have a very
dramatic impact on it. You know, I just, I found this wonderful Law
Review article it seemed arcane, it was about a contract case in the
‘40s involving the steel companies and the resistance to it by the
federal government was based on the perception that in the war we
were going to have to swallow some of the antitrust laws to get the war
won. And the major concern was that these big steel companies would
then take advantage of that. And that was the heart and soul of this
contract case. And what looks like a silly little contract case, is really
a very dramatic inculcation of public policy. That’s why it’s so
fascinating. And that’s, you know, I loaned Judge Huvelle a book
called, Wolf Hall about Thomas More, and Henry the VIII, and all of
that, and you know, think about that, and lawyers involvement in that,
and the oath, and all that. I think that’s the most exciting thing about
being a lawyer or a judge. We are engaged. We’re right where it’s
happening.
MS. BRACEY: And do you have any sort of feelings toward the terms, or reactions to
the terms judicial activism, or judicial legislation?
JUDGE FACCIOLA: No. I think there is a legitimate and sophisticated academic criticism
that suggests that judges should be more deferential to the exercise of
powers by the other branches. Judicial activism is a blogger’s word.
No, but I think that’s a legitimate concern. I was reading just
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yesterday, there’s now academic criticism of how over the past twenty
years, is the court’s engagement class actions looking towards
institutional reform may not have been the best way to go about that.
So, I think it is perfectly legitimate to talk about what judges should be
doing and what judges shouldn’t be doing. And that’s fine. And if
you want to call it judicial activism, that’s interesting. I mean, in those
controversies which would now, for example – today in San Francisco
the attack on Proposition 8 is a perfect example of the people having
spoken but have they spoken in a way that violates the Constitution?
What is the judge’s role on all of that? I think that’s a fascinating and
exciting discussion to have. We never stop having it, which is good.
MS. BRACEY: And do you see any evolution in your philosophies since you’ve
become —
JUDGE FACCIOLA: No. I’m still, I still find myself most comfortable with Brandeis’
decision in Ashwander. I, you know, as I say, here the people rule,
and I rule through their elective representatives. So, I always am
looking in the first instances, where is my jurisdiction? You know, I
always try to keep in mind, as someone said, I should have a sign on
my desk that says, remember, stupid, in the last election, nobody voted
for you, which is true. And nobody did vote for me in the last election,
or in any of the previous ones either. So, I think that’s a legitimate
concern. That courts have limited jurisdiction. That’s what it’s all
about. And here the people rule. That’s why I think this Proposition 8
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case is going to be so fascinating. And I suppose you could look at the
White House backup tapes as my being a judicial activist. But I
stepped into a vacuum. And what choice did I have? And the best of
all possible worlds, I wish Congress would create a system that would
explain what would have to be kept and what would not. But until it
does, here we are. Now in terms of institutional reform, I don’t agree
with those. I think in the long run, the work of the federal courts in
trying to forge institutional reform has been most beneficial. Can I
point to five kids who are better educated now than they were 20 years
ago? No, I can’t. But my sense of it is that they have held the
municipal feet to the fire and brought about social change on behalf of
disenfranchised people who otherwise would be ignored. I think it’s
no answer to say well, you know mayors, whether in Philadelphia,
New York, or San Francisco, who are insensitive to these needs will be
thrown out of office. I suppose so. But Bloomberg is not going to go
out of office because of people’s concern of how he handles the
mentally ill. Or Fenty is not going to be thrown out of office. So the
political process there is not going to yield the same motivation that a
court would, can or must. But by the same token I can understand why
mayors feel that kind of intrusion is illegitimate and can hamper the
kind of progress they are trying to make.
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MS. BRACEY: Because it’s also so persistent. Because usually these things are not
Bloomberg’s problem or Fenty’s problem there like . . . 30-years-ago
problem, right.
JUDGE FACCIOLA: They are institutional. Thirty years ago. I worked on a lot of
institutional cases as a lawyer and I remember one involved St.
Elizabeth’s Hospital, and you know there are actually people who
were born in St. Elizabeth’s Hospital and never been anywhere else in
their lives. Did you know there is actually a place where you would
leave a basket at St. Elizabeth’s with a baby in it that you didn’t want
anymore?
MS. BRACEY: I didn’t know that.
JUDGE FACCIOLA: Yeah. And that’s what was done to a lot of kids with Down syndrome.
There used to be, there was a time in American history when mentally
retarded people were institutionalized. I remember at St. Elizabeth’s
seeing the place where it was. Now they were severely mentally
retarded, not functioning at all. But, yeah. And there’s a perfect
example of how institutional reform brought about some change, the
treatment of those people. With that said, would I prefer that the
legislative body had gone in there, and came up with a system, with
checks and balances, and budgets? Of course. As I said, nobody
voted for us in the last election.
MS. BRACEY: But it’s also when you come in, it’s too late.
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JUDGE FACCIOLA: Of course.
MS. BRACEY: I mean, it’s not too late, it’s so late.
JUDGE FACCIOLA: It’s very late. So then we’re in a way, performing a legislative
function of putting in place the system perhaps that should have been
there in the first place. Municipalities have the capability to do this
stuff. I mean, yeah. And that’s what I think we’d all prefer that they
do it free of this sort of intermittent judicial activism.
MS. BRACEY: And they prefer not to get sued.
JUDGE FACCIOLA: Yeah. But in many areas that have been successful. The treatment of
the mentally ill, used to be, the mentally retarded I think over the past
twenty-five years you would have to describe it as a remarkable
success when you think where it used to be. But poor people being
thrown in these barbaric facilities for all their lives, when they
presented no danger to anybody.
MS. BRACEY: Right. What are the qualities of a good judge?
JUDGE FACCIOLA: Patience, patience, patience. I think so. Those are good qualities of a
good magistrate judge because if you are trying to settle cases, you
must have the patience of several saints. Saint Francis, Saint Anthony,
every saint you can find. Because the process is a dynamic process
that has its own discipline and its own logic. And it must play itself
out. And you can never move faster than the process will let you.
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And you learn that every day. You know, they’re twenty thousand
dollars apart. You’ve been at it all day. You’re ready to tear your hair
out. But now is not the time to do anything except stay there, get a
glass a water, and say, “Well where are we folks?” Are you really
trying this case for $20 thousand? How about this? Here’s a middle
ground for you. Ten now, ten a year from now. Sigh of relief, we did
it. But no one has ever settled a case by being impatient. In terms of
other qualities I think a good judge has to have is dispassion and
understanding that the first reading was not the right reading and that if
you’re really going to understand this case/guy you better read that
three or four more times so it penetrates truly. And openness to new
ideas and an appreciation that not every legal issue has been resolved
and we get paid to resolve them. And that that is an exciting and
interesting process and not an intimidating one. You can never be, you
know, Dr. Martin Luther King said; he would say, “There could be
paralysis by analysis.” You’ve got to decide. That’s the judge.
Knowing that moment. Judge Sporkin always says it’s a moment
when a judge cracks a case. It’s that moment when suddenly, ah, I
know. He’s saying this, he’s saying this. The answer is right here
between them. Or it may be over here to the left or to the right of
them. But it’s there. And having the patience to go through that
process. Enthusiasm for the job is very, very important. And stamina
to hang in there. When most of this is probably a six-day-a-week job.
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And it’s got to be that way. It’s not the kind of the job where you can
just walk away from. My wife will tell you, all too frequently, she’ll
think I’m crazy. Because I’ll be sitting there watching a football
game, and I’ll say, “Yeah, that’s it!” And she’ll say, “What are you
doing?” And I say, “Well I finally got it.” And she’ll say, “You know
you’re crazy.” I say, “Well you knew that when you married me 40
years ago. It’s too late to do anything about it now, woman.”
MS. BRACEY: What are the qualities of a good lawyer?
JUDGE FACCIOLA: Qualities of a good lawyer. From a judge’s perspective they are, a
good sense of proportion between resources and result. Judges are
very impressed by an efficient lawyer, that is a lawyer who has gotten
to the point and marshaled the resources needed to get to that point
without bringing more to bear than is necessary. Patience with the
judge who may not be getting it on the very first bounce; compassion.
An appreciation that the other side has a point, and a willingness to try
to understand that point. But a zealous desire to answer that point. An
appreciation of how the system is not perfect and needs the
cooperation of everyone to move from A to B. Easy grace with the
juries. Addressing them in a non-condescending way. The story I told
to some people yesterday, one side of the case were very sophisticated,
scientific people, and I told them that there’s a wonderful judge in
Maryland, and I don’t know her name, but she’s been a trial judge, an
appeals judge then went back to being a trial judge. Seen everything.
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She said the most impressive expert witness she ever had before her,
she saw him at a social occasion, and she said, “Of all the things
you’ve done in your life, what is the one thing you did best?” And he
said, “Teach seventh grade.” And she said, “That’s it.” That’s why he
was so damn good. And I said, and that’s not demeaning. And as I
told these people yesterday, if you can’t explain it to a seventh grader,
you don’t understand it. And that’s what lawyers do. And I used to; I
actually did that exercise when I taught trial advocacy. I would give
my students a concept res judicata; explain it to a twelve-year-old.
Explain it to a twelve-year-old. And that’s to me the heart and soul of
being a lawyer. We live in a horribly complicated society. And what
we’re looking for is generalists who can understand that.
MS. BRACEY: You mentioned that in the middle of football games, you think about
cases. So, considering your workload, describe the quality of your
family life.
JUDGE FACCIOLA: It’s excellent. I have the good fortune to be married to a woman who
is devoted to her work as I am to mine, and we’ve had an
understanding from you know, the day we got married, that this is
what we are. This is, we’re public servants and we take it very
seriously. When the kids were younger, we had a fierce devotion to
them and to their activities in sports and education and we were able to
balance the two. And it’s never really been a problem for us, because
we give each other the space we need. You know. In a typical
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evening when she at least was a classroom teacher, you know, I’d be
looking at a brief and she would be doing a lesson plan with one eye
on the television. So, then we got used to it. And so, we never did get
that chalet in Gstaad but we’ve had wonderful careers. And it’s hardly
a secret, it’s hardly a surprise that both of our sons are in public
service. But public service is demanding. It’s not, you know. But
that’s what it’s all about.
MS. BRACEY: What’s the hardest part of your job?
JUDGE FACCIOLA: Trying to find the proper balance, just like a lawyer, of resources and
result. Am I spending too much time on this? Why can’t I get this
done? Dammit, I want to get this done. But I’ve got to do it right,
finding that balance. It’s like sailing. There’s a point where you have
put up the right amount of sail, and the boat goes properly. Too little
sail, it doesn’t. And ironically, too much sail and it doesn’t. Finding
that. Same thing is true of the tiller, you know. An inch is too much.
And that’s it. So, it’s that proportion. You know, the judges I always
envy who have always been my idols, once had that magnificent
ability to get to the heart of the issue. Like Gerhard Gesell. You
know, some people say, you know, that judge is very sharp, he catches
it on the first bounce. Hell, Gesell used to catch it before they threw
the ball. No one could be that good. The guy is 29 years old; he was
general counsel of the SEC, for crying out loud. I mean, those guys
come along once in a lifetime. But those are the one judges I most
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love. Who crack the case instantaneously. And that’s the toughest
part of being the judge.
MS. BRACEY: Where in a lawyer’s career do you think a judgeship should begin . . .
.?
JUDGE FACCIOLA: Towards the end. Yeah. I think there’s a big experience factor if you
do it too young, and so forth. I think maturity is, it’s a big part of it.
MS. BRACEY: And what does sort of rises out or at least in private practice you see
some people who are judges for a while, and then leave —
JUDGE FACCIOLA: Yeah, I’ve meant some of them. Yeah.
MS. BRACEY: The Ken Starrs, and you know the Abner Mikvas and people like that
who —
JUDGE FACCIOLA: Yeah. There’s one I worked with on electronic discovery issues who
was a district court judge in Delaware and is now at Covington in a
patent practice. And that’s a new trend. It’s interesting. I just wonder
if their subsequent careers give them as much satisfaction as their
previous careers.
MS. BRACEY: There’s now nothing to look forward to.
JUDGE FACCIOLA: Well, you know, there might be. Who knows? I would like to see
judges be compensated so that wouldn’t be a common career path.
But that’s the way it is. I don’t think I would have been as good a
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judge at 42 as I was at 52, I just don’t think I was. I still had a lot to
learn.
MS. BRACEY: What has been your greatest accomplishment as a judge?
JUDGE FACCIOLA: The same thing I hope you would say if you asked Bruce Springsteen
that question. He would say, “You may not like my music.” But as
Jonathan Stewart said at the Kennedy Center Honors when they
honored Springsteen, “He didn’t leave any of it in the tank.” So, my
best accomplishment I think was that I can’t think of a single instance
where I left any of it in the tank, or I did anything less than what I
thought I was required to do. And that is what, when I look back on it,
that’s what I can say. I didn’t leave any of it in the tank. I didn’t leave
any of it in the locker room. I went out and gave it my best. Like a
Springsteen concert.
MS. BRACEY: And what advice would you give to a new magistrate judge?
JUDGE FACCIOLA: The same advice Pat Attridge gave me. Give yourself time to learn the
job. He said a year. He was wrong. I’d say three.
MS. BRACEY: You say three?
JUDGE FACCIOLA: Yeah. You have to understand how nuanced the position is, how many
different skills it requires. And give it time. And give yourself time to
adjust to its demands. And I think that’s it, one aspect of it. Second
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aspect is, begin with the premise of your own ignorance. And you, the
learning curve is steep but manageable. Three, try to have patience
with everyone including yourself, most importantly, yourself. And
give yourself the time to learn the job and to be open to it. And the
fourth thing is to treat the people before you, the way you would want
to be treated if you were there. I began my career in New York in
front of judges who were tyrants, and yelled and all of that. I never
understood what the purpose of that was. And I think how we conduct
ourselves says volumes about our society and how it will be viewed by
the people who pay our salaries. And when people leave here and they
thank me for listening to them. That’s the highest compliment I can be
paid.
MS. BRACEY: Well, thank you very much Judge Facciola.
JUDGE FACCIOLA: My pleasure. That was really, really fun. I really enjoyed it.