My guest this episode is Judge Matthew Kennelly, a U.S. District Judge for the Northern District of Illinois who has been on the bench for more than two decades. We get into how he keeps a docket of roughly 30 new cases a month moving, the tools he's built to push disputes toward resolution, and why sentencing is the hardest thing he does. If you want to understand how one of the last true generalists actually manages the work, this one is worth your time.
Top Insights
- Federal district judges are the last of the generalists, handling every kind of civil and criminal case, and Judge Kennelly takes in about 30 new civil cases a month on top of a standing load of roughly 280 civil and 40 to 45 criminal cases.
- He manages cases actively instead of letting them sit: putting in more work up front to organize and schedule a case early means less work on the back end, because attention tends to move a settlement to happen sooner.
- Rather than setting a briefing schedule every time lawyers fight over discovery, he resolves most disputes in a quick phone conference, so a case loses four or five days instead of six weeks.
- Lifetime tenure frees a judge to experiment with new methods over a long career, but it also breeds what he calls "robe-itis," the isolation of getting no honest feedback from anyone.
- Sentencing is the hardest part of the job because it has no right answer, and, as a senior judge told him, if you do it right it "takes a little bit out of you."
- There is no formal mechanism for case-management know-how to spread horizontally between judges, and he tells new clerks that at least 95% of the decisions he makes are effectively unreviewable on appeal.
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Full Transcript
Khurram Naik: This is Khurram Naik with Khurram's Quorum. My guest today is Judge Matthew Kennelly of the Northern District of Illinois. I'm fascinated by federal judges because they may be the last true generalists, and I think there's a lot any of us can learn from how they make high-stakes decisions on a wide range of issues. It's rare to get an opportunity to sit with a federal judge, particularly one with as busy a docket as Judge Kennelly, so I hope you'll value these two hours as much as I do. Judge Kennelly, it's great to see you again. Thanks for taking the time to talk.
Judge Kennelly: Happy to be here.
Khurram Naik: So we talked last time about a few things around your docket and some of the interesting implications from all the kinds of matters that you manage. I thought we'd begin by talking about your intake of cases. I think you said you're getting these days about 30 new cases a month. Tell us about that flow. You get these cases in, and then how is it that you are processing these cases and moving them along? Help us get a glimpse of that part of your role.
Judge Kennelly: Sure. So to start off with, federal district judges are basically what I would call the last of the generalists. We get all types of cases, both civil and criminal, of varying degrees of complexity. As you said, I get about 30 new civil cases per month, give or take a little bit. A couple of three new criminal cases per month. So I'm right about at the average. In our court I have at any given time about 280 civil cases and about 40 or 45 criminal cases at the moment. So what that means is that if I essentially do nothing in a month, my caseload goes up by 35. If I do a lot in a month, it might go down a little bit, but I still get those 35 new cases in. And I sometimes, in talking to interns and law clerks, and now to you, I liken the job to that old I Love Lucy episode with Lucy working on the candy line. The candy assembly line, with the candy coming down at a constant rate, and they're spending a lot of time decorating them, and eventually they get behind very quickly and the candy starts falling off the line, and they're putting them in their hats, in their pockets. So that line is my new cases in a given month or day or week, and I have to keep the line moving. And so when a case comes in, particularly on the civil side, I have to get a handle on it and, basically at a fairly early stage, get it organized and get the case moving so that it doesn't languish. Most lawyers are overly burdened. They have too much to do and not enough time to do it in. They're always juggling. And so I need to make sure that any given case that's assigned to me stays at least on their radar screen somewhere, because if I don't do that, it'll fall off the radar screen and it'll just sit. And in the long run, that's not good for the legal system, because it's not good for cases to languish. They should get decided one way or another, ruled on, settled, or resolved in one way or another.
Khurram Naik: I think part of understanding that process, it's important to understand all the parts involved, the way your brain works. So when you say that you're getting a handle on these cases, and you can sense some of the early work that needs to be done on them, how much of that is based on substantive determinations of the subject matter? So, okay, this is a class action, that means this, or this is a pro se person, that means that. I'm trying to get a sense of how much of that is determinations you've made based on your experience and understanding of the subject matter.
Judge Kennelly: Yeah. So case management is really that. That just proves that I didn't turn off that stupid phone. So I'm just going to decline it. Sorry about that. I'll answer that question. Do you want me to just pretend like it just started, or just start answering?
Khurram Naik: No, wherever, you just go with this.
Judge Kennelly: Okay. So, yeah, I lost my turn in the thought. Okay. So basically what happens is, case management, there's no form book that says this is what you do. There's a set of rules called the Rules of Civil Procedure that set out these very general outlines and basically say, get the case organized. And that's essentially what they say. And so it's up to a judge like me to decide how that happens. And I do that largely based on my experience, both in practicing law for 18 years before I became a judge, and in working as a judge for 20-plus years, to get a sense of how quickly, slowly, medium speed, whatever, a case should progress, and how complicated it's going to get at what stage. Now, some of that is going to be dependent upon things generated by the parties. So, for example, a lawsuit may come in and the parties may come in and say, we're already talking about settling the case. And I can just kind of spin it off one way. Or a lawsuit may come in and the defendant, the party who's been sued, may file some sort of complicated motion saying the case lacks merit, you should throw it out right now. I may deal with it in another way. The majority of cases fall somewhere in between those two. And I basically have to decide based on my experience, and obviously with a lot of input from the parties, how to organize things and keep them moving. You know, the judge, of all the people who are involved in the case, the lawyers, the litigants, and the judge, the judge is the most ignorant, knows the least about the case. I know about case management, and I can kind of figure out what particular pigeonhole or category or stovepipe to put a particular case in. But I'm not going to know exactly how complicated or uncomplicated it is until I spend time talking to the parties about it and hearing from them about how complicated it is. What I typically do, and I do this not because I'm a nice guy, but because I think it's the most efficient way to do it, given what I just said, is I'll ask the parties to propose a schedule to me. How long do they think it's going to take? What do they think they have to do, and how long do they think it's going to take to do it? And I sort of measure that against a rough yardstick of my experience and determine whether I think it's reasonable or not. Overwhelming majority of cases, I do. And then I direct them to follow the schedule that they've already agreed to at the outset.
Khurram Naik: And so, counsel. If you say that the judge is the least knowledgeable about the case, I think, correspondingly, the corollary to that is that the attorneys have at least some information and understanding about how the judge thinks about case management. So I think that's a pretty interesting thing to follow up on. And so maybe one way to approach that is: what case management techniques have you developed over time that you're most proud of, or that you've found the most effective?
Judge Kennelly: Well, yeah, I don't think I have a trophy case that has my best case management techniques. I bet it would be kind of a boring trophy case. But what I would say is, listening is a pretty important thing. I litigated both civil and criminal cases for quite a number of years before I became a judge. And I appeared in front of judges who had every case be handled the same way. You come in, your trial date's in 180 days, or your trial date's in a year, or I'm not going to give you a trial date, just go off and do what everybody would do, without really any care or even interest in what the parties had to say. And that's certainly a way of doing it. Basically, what that's called is bowing your way to the front of the line. It's basically like saying to the lawyers, I don't care about the rest of your cases or the rest of your life, my case goes at the top of the list, I'm just going to deal with my case. And that's a way of doing it. And I guess for those judges, and I appeared in front of judges like that over the years, that works. And I'm not going to say that there aren't points in a case where I tell people, look, I know you're asking for more time, but I'm not going to give it to you. But I think as a general technique, that's kind of the opposite of how it ought to work. Because we have to, under the rules, make sure things get decided not just in a speedy way, but in a just way. And if basically your technique is to tell everybody you've got to floor it from day one, that's not likely to result in a just resolution. It'll result in a resolution for sure. And it definitely worked for those judges, as I appeared in front of them, all those cases go away before the 90-day trial date. But were they going away in a way that they should have gone away? Probably not. So what I do is, like I say, I try to listen. I try to impose some sort of reasonableness boundaries on what I listen to. In other words, if somebody comes in on a routine breach-of-contract case and says it's going to take six years to conduct discovery, unless they tell me that the witnesses are all in Dubai and Taiwan and Germany and the Philippines and various other places, I'm going to say, no, folks, I'm sorry, that's just not going to work. If they propose something that's within a range of reasonableness, which is a range, I'm probably going to go along with it. And then, in terms of techniques, one of the things that I do think is important to do, and the current chief justice has emphasized what the Rules of Civil Procedure have kind of always said, at least in my career, is that the judge should be an active manager. It's important for a judge to be aware of and actively manage their cases. I ask questions. If somebody wants more than the average amount of time, I ask them why. I don't just routinely agree to it. I get them to justify it. I try to bring up the topic of voluntary resolution, settlement, mediation, at regular intervals. One of the reasons for that is that I observed, in the course of practicing, that many lawyers believe that if you're the first person to bring up settlement, it's a sign of weakness. I happen to think that's false, and probably demonstrably false, but people believe it. So you've got to deal with it. And before I started in this job, I spent a lot of time talking to other judges in our district. And I had been in front of most of those judges and observed their techniques. And I still remember one of them saying that one of the ways you take the issue of reluctance to discuss settlement off the table is you just tell people you're going to make a settlement proposal by X, you're going to respond to it by Y. And then people can go back to their clients, and the client doesn't say, wait a second, this is a sign of weakness. They can say, no, the judge has ordered us to do this, and so now we're going to do it. So I try to do that. I think that's reasonably effective. I didn't invent that. That comes from a magistrate judge named Morton Denlow. That's at least who I got it from. Now retired and doing private judging. But the other things I try to do, without getting too far into the weeds of civil procedure, it's pretty common, for example, in civil litigation for the defendant to file a motion saying that the complaint is deficient on its face. It's what we call in federal court a 12(b)(6) motion. Back in the mid-aughts, the Supreme Court said in a case called Bell Atlantic v. Twombly that district judges ought to be able to just figure that out. It's pretty easy, right? Now, I will say that none of the judges on the Supreme Court who said that had ever been a district judge, I think, at that point in time. But that's not altogether wrong. And at a certain level, it's true. And so what I try to do on those types of motions, instead of saying, okay, everything's going to grind to a halt and we're going to brief that motion for two months, and then I'm going to sit on it for a while and decide it, is I'll look at the motion, I'll look at the complaint when they first come in, and I'll say to the plaintiff, if I think the complaint's weak, look, you've got some problems here. You might want to go back and, if you can ethically do it, you might want to think about amending your complaint. If I think that the motion asking to throw out the complaint, to dismiss the complaint, is meritless, I don't make people respond to it. So I don't routinely set briefing schedules on those kinds of things. One of the other things I do, again, I didn't learn this myself, I adopted it from other judges around here, but I certainly observed it in practice, is that it's a pretty common thing in civil litigation for there to be disputes about discovery: who can get what from whom, and when, and how broad it can be, and how narrow, and so on. And I appeared in front of judges over the years in this district and other districts who, whenever there was a discovery dispute, they'd set a briefing schedule, just as a matter of routine. And so you'd brief the discovery motion for a month, and the judge would rule a couple weeks later, and guess what would happen during those six weeks in the rest of the case? Nothing. Everything stops, because everybody's waiting for the judge to decide. Why does that need to happen that way? So when I did my rounds, after I got confirmed and before I started the job, one of the recurring themes I would hear from judges who did their own discovery supervision is, don't let people brief discovery motions. Unless they're really complicated, do your best when they come in to rule on it right then, hear argument, rule on it. And so I've done that. It's very rare for me, there's a pandemic exception to this, like everything, but it's very rare for me to set a briefing schedule on a discovery dispute. Typically what will happen, so nowadays, whereas in the old days people were regularly coming into court, and so they'd say, here's my discovery dispute, I'm going to come in front of the judge in three days, and I'd get it resolved when they came in. Now it doesn't happen that way. And so what I typically do is I say, okay, you filed your discovery request or motion on such and such a day, we're going to have a phone conference a week from today and I'm going to decide it then. If you want to file something before that, go ahead and file it. Otherwise, just be prepared to talk about it on the phone. I rule on it then, and then we've lost four or five days in a case, not six weeks. I was in cases where what would happen is that the judge would set a schedule on a discovery motion, and I and the other litigants would bring everything to a halt, and then the thing would get lost in the shuffle, and four months later you're still waiting for a decision. And meantime, nothing's happened in the case. In any given lawsuit, delay can be in somebody's interest, but just in terms of the overall system, it's not, and it shouldn't be that way.
Khurram Naik: Yeah, I think another thing about that is, my understanding is that, all things considered, delay means more money to the lawyers.
Judge Kennelly: There's no question. At least when both sides are paying as they go, that's definitely true. It benefits the lawyers. And, as the judge I clerked for used to say, there's maybe no higher and better use to which a person can put their money than the payment of a reasonable attorney's fee. And so, with a half smile on my face, I sort of agree with that. But that doesn't mean I have to bump the tab up.
Khurram Naik: So I wonder, in talking about these different styles of approaching how to handle the docket, I'm kind of interested in the style aspect of that. Do you feel like there are trends in jurisprudence? Like, is there a trend, for instance, you say in the Northern District there is this more underscoring of the active management approach among the judges, do you feel like those are things that come and go?
Judge Kennelly: So I would say over time the trend has been in one direction, and that is toward more active management. Now, that's not a straight graph going up. There are some bumpy lines on it, and for different judges that trend line is moving at different rates. We have a very large district, 20, 21 active district judges, 8, 9, 10 senior judges at various levels of activity, and that doesn't count magistrate judges, all of whom are supervising cases. So you've got 40 people, 40 more or less life-tenured people, doing something. You're going to have at least 40 different ways of doing it. But my sense is that, of the judges who do manage their own cases, and I of course have the option to defer that to a magistrate judge, but of the judges who do manage their own cases, I think the trend over the course of the 40 years I've been a lawyer and a judge has been toward more management, not less.
Khurram Naik: To what do you attribute that trend?
Judge Kennelly: So, it's a function of the Rules of Civil Procedure, which, when I started, I'm holding my fingers up being about an inch thick, and now they're about two and a half inches thick. So more rules means more stuff to talk about. But it's really just, I think, a general trend in federal litigation, promoted currently by the chief justice, and completely correctly, I think, and by the judicial education we get, what we refer to in the federal system as baby judges school. That's just the way you're trained. And as lawyers come through the system, most, but not all, people who become federal judges have been federal litigators, and that's what they're used to, and you tend to kind of do what you've seen, so I think it just increases over time. And then what many, not all, probably most but not all, judges tend to realize is that it's more work for you, but it pays off. The payoff is the following. So, again, I could just do nothing on my cases, just wait for the motions to come in and rule on them, just let nature take its course. And there are judges who operate that way, and they have a nice life, it's a nice life, just like I have a nice life. Okay, it's a way of doing things. But here's the difference. I have 280 cases; that judge has 450. And any given ten cases is going to generate a certain number of things that I'm going to have to spend a lot of time on, like what we call a summary judgment motion, or a motion to dismiss, or class certification, or maybe a trial or something like that. And if I have 450 cases, if two out of every ten cases generates a motion for summary judgment, that's going to be a much bigger number than if I have 100, or if I have 250. So the payoff in the management is you're putting more into the front end, but you're having less work on the back end. The cases get resolved if they're paid attention to. You know, 97% of civil cases, if not more, are going to settle at some point. What you can do as a judge, perhaps, is move the needle in terms of what point they get settled at. Is it sooner or is it later? Is it five years after the case gets filed, or is it two and a half years after the case gets filed, or one year after the case gets filed? And the more actively you manage it, the more likely it is that that number is going to get shortened. And I think, again, in a given case, that might be detrimental to one side or another, but from an overall system standpoint, it's good for the system.
Khurram Naik: Do you have any intuitions about the satisfaction parties have with settlement at those different phases? So, how much more satisfied are parties with an earlier resolution?
Judge Kennelly: That's a great question. And I've never seen a study on it. It probably could be studied. I will tell you that my sense is that when cases get settled, people tend to be satisfied with it. I mean satisfied, not happy, satisfied. In other words, it's a cost-benefit thing. It's a better resolution than what would happen if you didn't make the resolution. And so my guess is that the satisfaction level probably doesn't vary a whole lot. And if you look at it from a holistic standpoint, if I'm, let's say, a defendant who's paying hourly fees, and I settle the case after paying my lawyer $50,000, as opposed to after paying my lawyer $250,000, I ought to be happier, at least if the settlement's the same. Of course, you'll never know, but that ought to be beneficial to me. And the same is true on the other side, at least if the plaintiff is paying an hourly fee. If it's a contingent fee, it's a different story.
Khurram Naik: So, to pick up, in a couple of different ways you alluded to the different styles that different judges have, and you're all kind of equals in that way. You all can just trade ideas, but you're all left to manage your own chambers in your own way. And you tied it to the fact of lifetime tenure. Because over the course of someone's decades-long career, the docket can continue to go in some direction and really refine some process, and that could be maybe significantly different from another judge. So to me, that's an interesting consequence of lifetime tenure that I hadn't considered before. What are some of the other consequences of lifetime tenure? Because that's a very specific thing, we don't really have that in a lot of other aspects of society, so it's a very unique thing. And by virtue of you being a generalist, you see so much about how else things are done. So what are some of the non-obvious implications or consequences of lifetime tenure?
Judge Kennelly: Well, okay, it's easier to start with the obvious ones. The obvious one is that, since I don't have to run for retention or election or whatever, I don't have to be concerned that if I issue a decision that a columnist for the Tribune thinks is an outrage, I'm going to lose my job. And who knows whether I'd do that anyway, but the fact that it doesn't even cross your radar screen, I think, is a significant thing in terms of how judges operate, that you're not constantly having to think about looking over your shoulder and trying to figure out what might be gaining on you. So that's the big thing. The other thing is, and this is suggested by your question, it gives you an opportunity to try out different things. I don't have to do the same thing now that I did ten years ago. Now, the obvious follow-up is going to be, okay, what are you doing differently? And so I'm leading with my chin on this one. It all ends up being nuance. And one of the countervailing factors to this thing that gives you the liberty to do different things and try out something and see if it works, the countervailing factor is, I don't know, you could call it the cocoon factor, or what some people call robe-itis or whatever. And that is that you're in this little tiny world. You don't get any honest feedback from anybody. It's always polite laughter when you say something that's even mildly funny. It's always, oh, you're such a wonderful pillar of the community, and it's by the grace of God you got put on the bench, or whatever. And there's this temptation, if you're not in a kind of self-examination mode, to figure, hey, everything's great, nobody complains, everything must be going fine. And one of the things, for me at least, that you constantly have to elbow yourself on is, what am I doing that could be done differently, and might successfully be done differently? And the problem, of course, is that we're in this system where, like I said, there are 40 judges, it's like 40 different little law firms. We're all in the same building, but it's not like, you know, when I was with my old law firm, which was six lawyers, and I'd just show up in the next person's office and say, hey, what's going on? That doesn't happen around here all that much. But we do have opportunities to get together, and you hear how other people are doing things differently. So recently, for example, I've always, or at least more or less always, managed civil cases in kind of the active way that I described. I had not done that in criminal cases. Criminal cases are different in a lot of ways, but the lawyers tend to be more on the ball in terms of keeping things moving, and you tend not to have to manage them as much, or at least that was my theory. And recently, this probably goes back to a little bit before the pandemic, I was on a committee, because we were trying to deal with some issues having to do with the staffing of the Marshals Service, which is constantly understaffed, and how we could deal with that. And one of the things that came out of that is that our court was having a lot more in-person appearances on sort of routine status hearings in criminal cases than virtually every place else in the country. I think that's probably just sort of a carryover from what we do in civil cases, that's what we had always done in civil cases. But when you've got defendants in custody in criminal cases, any time one person comes to court, there have to be two marshals with them, plus the people in the lockup and so on. So we had these big staffing problems. And one of the things that a judge who happens to be on my floor, but has been a judge maybe 12, 15 years less than me, was doing is he was doing the same kind of thing in his criminal cases that all of us had been doing in our civil cases, which is getting kind of frequent and detailed reports from the lawyers about what discovery has been produced, when it's going to be produced, when you're going to get it to them, and just constantly nudging them. Not making the parties come in for that, but making them file reports. And if the prosecutor says, well, we're going to get the defendant the draft of a plea agreement in the future, you'd say, fine, you've got two weeks to do that. Whereas most of us, myself included, really weren't doing that. And so I thought, I'm going to try that out. And so I kind of changed how I was dealing with criminal cases as a result of that. And does it have an effect? Everything affects things in some marginal way, but I think it does, and it keeps people a little bit more on the ball. They don't get the sense that all I've got to do is show up and say, oh, we need more time, and the judge is just going to send me away. And so, bringing it back to your question, which I've gotten pretty far away from here, you do have the opportunity, if you keep your ears open and you talk and you listen, to see how other people are doing things and maybe say, hey, I'm not going to completely change my procedure, but I'll try that out and see how it works. And if it works, then you can maybe change how you're doing things on a regular basis.
Khurram Naik: So it sounds like there are some ideas like this one that just seem, it's unlikely someone's going to say that isn't better. It just seems so likely to result in better case management. So it seems like there are at least some no-brainers. And so what are the obstacles you see to more widespread adoption? Because it sounds like, I feel like in the conversations we've had recently, case management has been a key thing that you've underscored about your role. Maybe it's because it's a recent part of your role. But it also seems like it's very much half of mine, and very much just day-to-day blocking and tackling. And so I'm curious about the ways in which you'd like to make that process easier for yourself and other judges. And I think there's also maybe a benefit to the public, and maybe a more consistent application, a more consistent administration of justice. So what are your thoughts on that?
Judge Kennelly: The last thing that you said, consistency, I think is a big and probably unsolvable issue on a large scale. There are smaller federal district courts, let's say the two or three or four judge districts, where what they've done is they've basically developed kind of templates. Your case is a category one case, or it's a category two, or category three, or category four. Depending upon what category it is, you're going to have this much time to do X, this much time to do Y, this much time to do Z. And yeah, all those dates are subject to modification by the judge, but the notion is your case is categorized, it's going to go into a pile. And so in those districts, everything's very consistent. Just like when we had mandatory sentencing guidelines. Now, this is not a great analogy, there's a big difference between how somebody manages a civil case and how many years they have to go to prison, okay, obviously, but back when we had mandatory sentencing guidelines, at a certain level sentencing became easy. You count up the points, you get a range, you sentence at the bottom of the range, the top of the range, or the middle, it's not a big range, you're done. It's very easy. All you have to do is calculate the points correctly. And so there's consistency. And in the law, and in the system of justice, there's this constant tension between consistency and individual attention, treating people as individuals and treating cases as individuals. And over time, that pendulum tends to go back and forth. So, and I'm going to keep up with the sentencing analogy here for a moment, Congress passed, in the mid-80s, something called the Sentencing Reform Act, which is the thing that instituted what we call the federal sentencing guidelines. And the two primary sponsors of that legislation were Ted Kennedy and Strom Thurmond. And what it did, so before that, sentencing was completely discretionary. You might look at the same case, let's say an income tax evasion case, and judge A might give the same defendant probation, and judge B might give him ten years in prison, or whatever the maximum is for income tax evasion. And no review. It was all considered discretionary, unless the judge had considered some inappropriate factor. So Senator Thurmond, and I may be getting the history a little bit off here, but Senator Thurmond was more interested in the consistency part of it: why is judge X giving somebody ten years and judge Y giving somebody probation? And Senator Kennedy was perhaps interested in that, but also more interested in some of the outliers on the high end. So each one was kind of interested in the outliers on the other end. And the result of it was the sentencing guidelines, which for close to 20 years were considered mandatory. You couldn't vary from whatever that little range was except in very unusual circumstances. And so we had this system where you knew you were going to get the same sentence in the Western District of Oklahoma as you were going to get in the District of Rhode Island, in front of two different judges for the same crime. On the other hand, nobody was going to consider whether you maybe had sick parents at home that you were taking care of, or that you were the sole support for your four children, or that you had some sort of previously undiscovered mental disorder that was causing you to commit the crimes, none of that was going to be considered. Or, on the other hand, whether you were somebody who was just kind of a bad dude, and any time you got out of prison you were going to do something to get back in. And so we adopted consistency and we sacrificed individual attention. That changed in the mid-2000s. The Supreme Court decided that the sentencing guidelines were advisory, not mandatory. And so now I have to consider them as kind of a goalpost, a guidepost, a starting point, not an ending point. And, of course, as a result of that, over the last 15 years, we're now back to quite a bit of variation among judges within a district and among districts in terms of how similar cases get sentenced. And there's probably less concern about that nowadays, but every now and then you see somebody say, is something wrong with this? Why does somebody get probation for this drug crime in the Eastern District of New York, and then in the District of Kansas they get 20 years for pretty much the same crime? Does that make any sense? And I get that. And so the pendulum tends to swing back and forth on these things. And, I guess, to try to bring this back home, we could have a system here in our district where you would know, coming in as your case gets filed here, your summary judgment motion, your motion asking the judge to throw out the case, or whatever, is going to be due in an 18-month period. And that would be completely predictable and completely consistent, and it would also be massively stupid, because it wouldn't take account of the differences that might make one case or another different from that. So in the law, we have this constant tension. I will say that our court, to a certain extent, gets criticized for the variation in the way different judges handle cases. I just chalk that up to humanity. You know, we used to have in the old days, personal injury lawyers, for example, on both sides, would say, wait a second, why should I be in federal court? If I'm in state court, I know my case is going to get above the line, as they used to call it, in the Circuit Court of Cook County, three years and six months after the case gets filed. In federal court, if I get assigned to judge so-and-so, I'm going to get a trial date in nine months; if I get assigned to judge so-and-so, who knows if I'm going to get a trial date before he retires. And those are problems, but it's kind of inherent. Any time you try to smooth out the variations in the graph, you're going to leave some significant number of cases being treated in a way that people will consider unfair. And any time you give more or less complete discretion to the person who's handling them, you're going to get the criticism, completely legitimate, that there's no predictability. And so, what do I try to do? On my own, I can't deal with everybody else's universe. I do try to deal with my own universe. I try to treat similar cases in a similar way as best I can, understanding that there are no two things that are exactly alike. I do worry, particularly, I keep going back to sentencing, but it's the most serious thing we do around here, I do worry about those things. I sentence a person in one case to such and such a sentence, and a case comes along six months later that seems kind of the same, and I think, man, I should impose a greater sentence here. But wait a second, six months ago I gave this other sentence, can I really justify that to myself? And nobody on the court of appeals is going to come back and say, hey, you sentenced so-and-so six months ago to a lower sentence, explain the differences here. That doesn't work that way. But I think about it. And I think judges do think about those kinds of things, and hopefully try to maintain some sort of internal consistency, at least on their own, over time.
Khurram Naik: That's interesting. I don't think enough about the criminal docket, I don't know enough about it, because my litigation has always been civil. And so something that I think is maybe desirable in a civil context is less desirable in a criminal context: some aspects of unpredictability, I think. I've always kind of felt that part of civil litigation is saying, we understand there is a riskiness to this, and we are hoping, both of us, that facing this risk will drive us to resolution, to settlement. And so it's kind of curious to think about the ways in which, in some ways, that unpredictability is a feature, not a bug.
Judge Kennelly: It's a feature for sure. It's a feature, and it's a feature in everything. As a lawyer, I handled both civil and criminal cases, and the calculus is different and the consequences are different in the two types of cases, but the same uncertainty plays out in both. You could get a quote-unquote runaway jury, or you might get a judge who just has a complete antipathy to a particular type of case. And how's that going to affect things in a criminal case? You don't know, if you go to trial, is the judge going to think that this is the worst case, or is it going to be treated differently if you plead, if you make a deal, and so on and so forth? Yeah, it's a feature. It may also be a bug, but it's a feature.
Khurram Naik: Well, going back to what you were saying, I think part of the case management that we're talking about, and the benefits of consistency, and the desire to be able to listen to parties and take in circumstances, I think a key part that you've referenced a lot of times now is listening. And I have a naive intuition about what listening is, but I imagine over time you've developed better techniques for listening and facilitating communication with the parties in front of you. So what are some of those techniques you've developed?
Judge Kennelly: Part of it is filtering. There's a lot of similarity, particularly on the civil side, between case management and parenting. It's a combination of carrots and sticks, and you have to listen, but not necessarily be swayed by somebody whining about this or that. And there's every bit as much whining by lawyers in civil cases as there is by four- and five-year-olds. Not that I'm comparing the two necessarily, but, yes, at a level you kind of think about it that way. So I can't say that I have a template that I try to fit everything into, but I guess what I try to convey to people is: look, if you pursue your case and what you have to do on your side in a diligent way, then you're way more likely to get leeway from me when you need more time, or have a problem, or need an exception, or something like that. If, on the other hand, what you do is basically just ignore everything until a week or two weeks before the deadline is about to run, and then you engage in this flurry of activity and come in and say, oh, judge, we just found out something, and it turns out the reason you just found it out, even though you've had ten months to find it out, is you didn't do anything until three weeks ago, I'm probably going to have a little bit less leeway with you. And now that might sound, oh geez, that's not really fair, but I try to convey that to people kind of from the get-go: don't wait until the last minute. That goes back to the thing I said about lawyers juggling. Every lawyer has many, many, many deadlines that he or she has to deal with, and you're always constantly juggling. And what I think, as a judge, I want to convey to people is that I get that, I get that you're going to have to juggle, I get that you're not going to be able to necessarily comply with deadlines, but I want you to treat the case as something that's significant, and not something that just sits on the back burner until you start getting the warnings from Outlook saying you've got a meeting day after tomorrow or something.
Khurram Naik: So I think part of what you're talking about also ties into, when you're saying it in the context of lifetime tenure and some of the ways in which it insulates you, of course, from a lot of scrutiny or pressures of certain kinds, but then there's a concern about robe-itis, and so let's think of that as a key part of this as well. So what are the things that help you understand the considerations that law firms go through, or clients go through? What are the ways that you're staying grounded and getting a good understanding of what's actually going on behind the scenes here?
Judge Kennelly: Okay, so, part of it is, I've been a judge for going on 22 years now, but it doesn't seem like that long, and I did have a very active both civil and criminal practice. And so part of what I'm doing is trying to make sure that I don't lose touch with that, and the understanding of the pressures, the multiple pressures, that I was under at the time when I was a practicing lawyer, and that I take account of that when I'm managing a case. That's certainly part of it. Part of it comes from, you can sit around here in an ivory tower, or the equivalent, particularly now since there's nobody around, and just kind of go about your business and not pay any attention to anything. I try to stay involved in groups of lawyers, bar groups, or what we call Inns of Court, things like that, where you're talking to lawyers regularly. And, again, they're not necessarily going to come up to you and say, hey, judge, the way you managed that case really stunk, that's not going to happen, but you do learn things by staying up on what's going on in practice. One big example for me is that I became a judge in 1999, and electronic discovery as we know it now pretty much didn't exist at that point. The digital revolution was just kind of starting to happen. It really hadn't affected litigation all that much, and I had no idea. I never had to deal with drafting search terms and protocols for ESI and things like that. And so what I've tried to do, thankfully, we have opportunities for continuing judicial education, and not just that, but being on panels with lawyers. When you get asked by the local bar association to be on a panel about electronic discovery, for me it's important not to just sit up there and pontificate, but to listen to what people are saying, because you learn a lot from that. And so I think that's part of it. Part of it, less about the practice end, but about what's kind of happening in the world, comes from the fact that we're all allowed to hire law clerks, basically lawyers who assist us. And if you have what we call term law clerks, in other words, there are new people coming in every year, every couple of years, that helps you kind of stay grounded in what's going on. And then a lot of it you just learn from cases. A lot of what I know about electronic discovery I know from learning it the hard way, having disputes presented to me and having to figure out what they're all about, and listening to the lawyers, how does this work, how does that work, and so on.
Khurram Naik: So one thing you mentioned a couple of different ways is wanting to get honest feedback. Of course, lawyers are all just going to laugh at your jokes and not exactly walk up to you.
Judge Kennelly: By the way, I am actually quite funny. So not all that laughter is fake.
Khurram Naik: You did, I have to say, there was one Inn dinner where you made remarks, and it was very funny. It was genuinely funny. So I have to give you that.
Judge Kennelly: So, like, one out of a hundred times I was actually funny. Okay. Yay.
Khurram Naik: Well, I still remember the joke, and I don't remember how many other lawyers have given talks, and I remember the joke. So I think that's good. Well, so let's talk about that, because I'm interested now, what kind of feedback do you wish you had?
Judge Kennelly: Yeah, so that's a really tough question, because it's going to be really hard to get anything good. Every now and then this or that publication does evaluations of judges. So what does that end up being? It kind of depends on how they go about doing it. We've had an organization here locally that at various points in time has reviewed judges, both on the state and federal level, not all that often, because it's a massive undertaking if you're going to do it. Obviously, there's, I suppose, somewhere, although I don't go looking for it, the judicial equivalent of online reviews. You know, judgeisajerk.com or something like that, where people can post all their gripes. But that's largely going to be all the negative information, and who knows how much of it is tainted by the fact that the person lost a case and they're just ticked off about that. So what you would ideally get would be some sort of broader sampling, done in a fairly systematic way, that told judges what people think of your case management style, and not just a number on a scale, which doesn't tell you anything, but what's good, what's bad, what's indifferent. How are you when you preside over trials? Do people think they're being treated fairly, even if they lose? There are ways that people in high-level professions can get evaluated, but there's really not anybody out there doing it on any kind of a regular basis. And honestly, it's because it's hard. It's hard to do, and if you're going to do it right, it's really hard to do it right, and not have it just be a series of gripe sessions, or, on the other hand, a series of suck-up sessions. So, ten years ago, 12 years ago, a local bar association did an every-25-years-whether-we-need-to-or-not review of federal judges, and I found some helpful stuff in there. Not all of it great, but I tried to take it to heart. And some of it you can't, a zebra can't change its stripes, but, yeah, it's just not happening. And we don't have, probably because it would be so difficult to do, we don't have, like you would have at a big corporation, somebody doing a regular review of you. Who would do that, and how would they do it? I have no idea. Somebody could figure out how to do it, but it would have to be its own kind of apparatus. And anything that comes from the government costs money, and somebody's got to pay for it, and there's no real desire to pay for it. Now, as a federal judiciary, we get criticized from time to time for not having kind of an ombudsman or something like that. But that tends to be about the really egregious types of situations, people making racist or gender-biased comments, corruption, quasi-corruption, things like that, the outlier cases. And every time you have one of those, somebody says there needs to be an inspector general or something like that. But we have, I don't know what the number is, it's like 500 federal district judges around the country. How are you going to evaluate all those people? It's really tough. Who's going to do it? How are they going to put together the stats? It would have to be a significant number of people, and that would be their whole job. And we just don't have it.
Khurram Naik: Well, let's say in a fantasy land, and you've drafted many local rules, let's say you draft a local rule that requires counsel to give feedback at the end of the resolution of the litigation. What are a couple of questions that you would put in there?
Judge Kennelly: Yeah, I'm just thinking about the last thing I got, like, you could do the hotels.com kind of smiley-face thing. But that's not helpful at all. You ask a question like that, and I suppose I could think of something, but I'm a lawyer, so I immediately start thinking about why this would be a waste of time. Because if the experience was okay, or even positive, how many people are going to do it? If the experience is negative, by definition, in my job, half the people go away dissatisfied, because I have to decide a case. And how would you know whether the fact that a person lost is tainting their evaluation? I'm not sure. That's why I say I think it would have to be done on a systematic basis by somebody who knows how to filter evaluations and control for dissatisfaction with the outcome, in evaluating the process, because the process is what you want to get evaluated on. I get evaluated on whether my decisions are good or not by the court of appeals, I guess, it's a small percentage of cases that are appealed, but that's an evaluation of sorts. That's not what I'm talking about. I'm talking about the process.
Khurram Naik: Yeah. Well, my take on that is, let's say I resolve the procedural hurdles to getting compliance, and now there's a rule where you can get the information. I suppose you could focus on that.
Judge Kennelly: Yeah. So what I'd want to know is: did you feel you had a chance to make your point? Did you feel that the judge listened to your point? Did you feel that the judge took your views into account? Not, did you like the outcome, the appellate process works for that. Were there things that the judge did that you think were counterproductive? Things that the judge did that you thought were particularly productive or helpful? But a series of the kinds of things you get on your average web survey, where it's like, great, rate this on a scale of one to ten, that's just not great. You need specific stuff. Like I said before, after I got appointed and before I started, I went around and talked to maybe a dozen judges in our district about their techniques for this and that, how do you pick a jury, how do you do this, how do you do that. And I've got to tell you, with maybe one or two exceptions, first of all, they all had different ways of doing things, and they all said, and the lawyers love the way I do it. And I had to hold my tongue on about half of them, because I wanted to say, no, they don't, because I knew they didn't. But I'm not going to say that, and nobody else did either, and that's why they all thought that everything was copacetic. And so that's what you get. But getting the opposite of that, like, this person's an ogre, which is what web reviews often descend into, that's not helpful either, except at some very general level. So you need something detailed about: did you feel you got treated fairly? Did you feel you had an opportunity to make your points? Did you feel the judge actually considered your points? If not, why don't you think that? What do you think could have been done differently? What was good? And you could design, if you were good at this kind of thing, which I'm not, you could design a survey that would work, I think, at some level. And then you'd have to get people to do it. You'd have to have a sufficient compliance rate among the lawyers and the litigants, so that you're not just getting the outliers on one side or another, the people that think that you walk on water, and the people that think that you walk around with a pitchfork.
Khurram Naik: Yeah, that makes a lot of sense. I've seen, I think, some of the kinds of websites you're describing, and, unfortunately, with this pool of information, it tends to be a lot of disgruntled people. Currently that's the closest thing to a rating, and it's not enough to judge on. It's what you see with, I think, doctors, I feel like it's mostly the most negative reviews. So I understand that. But I think that's an interesting problem to be solved. As you were talking earlier.
Judge Kennelly: Let me just say, logically, this is not going to get done by the government. Okay, this isn't going to get done by the government itself, there's no appetite or money to put the resources into it. It's going to get done by bar associations. That's who does this kind of thing. And the problem with it is, it's massive, if you're in a place that's got big courts like we do, it's a massive undertaking. It could be very much a full-time job. And the resources you'd have to commit to it, if you're going to do it right in a way that's helpful, in other words, you're not just trying to wave the red flag in front of the people you hate, you're trying to give people helpful feedback, it's a very massive undertaking, I think, or at least could be.
Khurram Naik: Yeah, sorry for interrupting.
Judge Kennelly: No, that's a good point.
Khurram Naik: So, going back, we started this conversation talking about how judges are this kind of last bastion of the generalists. And I'm interested in that for a variety of reasons. That's something that's fascinating about the role. Maybe some CEOs, if you're Jeff Bezos, and your company touches on so many aspects of society that you're seeing a wide swath of society through that role as well. But I think what's interesting is that the role, we talked about it in the context of being this generalist, and the variety of the docket that you have, there's something that nestles in there, this case management. And the case management techniques you have, we can go into a little more subsequently. But by virtue of being this generalist, you have to get an understanding of so many different kinds of subject matter. So what are the patterns of digesting this information and honing in on the things that matter? Because it's inconceivable that you're spending time trying to master every single detail. There have to be some things that are essentially more important than others, and things that you've learned to hone in on. So could we talk a bit more about some of the techniques underlying the substantive aspect of drinking from this fire hose and processing it?
Judge Kennelly: Yeah. I wish I could reduce that to a formula, but I really can't. One of the things that, if you as a practicing lawyer have any kind of complex practice at all, one of the things you learn is that you have to be able to filter out what's important from what's unimportant. If you're working for a thousand-lawyer firm that only defends Fortune 50 companies, then maybe you don't have to have that filter, because you can do everything for everybody all the time, because they'll pay for it. But in most legal practices, you have to develop the skill of being able to figure out what's important. And, honestly, you don't always get it right. And I think that's true even now. So you're right, drinking from the fire hose is probably a pretty good analogy for what I do. Today I might be dealing with a complicated patent dispute about some sort of chemical formula, and tomorrow I may be dealing with the question of whether a person who's charged with a crime and mentally ill is competent to stand trial, and the next day I might be dealing with some complicated question of insurance law, interpreting very complicated language in insurance policies. It's like you're going from one thing to another, and I think for most of us in this job, that's kind of the great thing about the job, you're not doing anything the same way twice. But, you know, Jack of all trades probably means master of none, and that's certainly true. I wish I could reduce this to some kind of formula, because it's a pretty common question. I speak to law school classes and things like that, and I get asked a similar question. And it's the same way people kind of figure out other things, you read and you listen, and you read and you listen, and you think, and you set it aside, and you come back, and if you have to issue a decision, you start writing a decision, and if it doesn't work, you set it aside, or you go the other way. I clerked for a federal district judge like me 40 years ago, and one of my co-clerks was somebody who was completely brilliant, and the way he would go about deciding and drafting decisions, it was all somehow getting done in his head, and then he'd just start making outlines on paper, and it would flow from one to the next. I think I'm a reasonably intelligent person; I can never do that. For me, it's almost like trial and error. And what I actually tell people, I speak to a class regularly of judicial interns in law school, so these are law students, usually first or second year, who are working for a judge and acting as junior law clerks, helping the judge decide cases and writing memos, I tell them, what's going to happen when you're working on an assignment is you're going to read one side's submission and say, wow, that sounds really persuasive. And then you're going to read the other side's submission and say, wow, that sounds really persuasive. And then you're going to read the first side's response to that, and you're going to say, wow, that sounds really persuasive. Now what the hell do I do? And the first thing I tell people is, don't panic, because that happens to me too. And I've been a lawyer for 40 years and a judge for 21. It's normal. It's supposed to work that way. If it was that easy to decide, I wouldn't need to have you work on it. And so you work through those problems the same way people work through problems in life, you think about it, you listen, you try to work it out, you see if the resolution works, and if it doesn't work, you try something else. And in the long run, what I tell people is, look, this is what you do. If all else fails, you've sat there and you've reasoned it out, and you've outlined, and you've tried to go from point A to point B to point C to point D, and you still get to a point where you've got to decide between two competing visions of how something should come out, and you can't figure out how to do it, so I say, do what I do, because it happens to me. It happened to me two days ago, all right, on something, and I'm in my 41st year as a lawyer. I say, okay, I can't figure this out, and I've reached the point now where I just can't keep tossing it around in my mind. I've got to make a decision. So I'm going to say, okay, this side wins, and I'm going to start writing it that way. And if you're thinking about it in a logical way, and if you're, as the math teachers used to say, if you're showing your work, and you're going through all the steps, if that's the wrong decision, at some point you're going to hit a wall. And you're going to know that you hit the wall, and you're going to say, you know what, let's just come out the other way. And if you never hit that wall, it probably means it's the right way. And one way or another, the process of just having committed it to writing is going to help you decide it. And that's what I have found. And so I have to deal with, you're right, I deal with stuff that I don't know the first thing about. I'm dealing with a patent case right now about MRI technology. All I know about MRI technology is sitting in one of those machines and having it be real loud. That's all I know about it. I'm not a neurologist, I'm not a person who designs MRI machines, I'm not a radiologist, I'm not any of those things. But one of the things I've learned over the course of 40 years of practicing in areas where I didn't know the underlying subject matter, and being a judge, is that at some level, there's a logic to everything, and you just kind of have to figure out where it is. And you read as much as you can, and you learn as much as you can, and you try to make sure that you know as much as anybody in the room, or at least have read as much as anybody in the room, and do your best, and try to make it make sense from a common-sense standpoint. And if it does, there's a good chance it's going to be right.
Khurram Naik: Is there a division of labor, I don't know if this is how you think about it, but I wonder if you see a difference between understanding the case and deciding the case. And if you do, is one more challenging than the other?
Judge Kennelly: Yeah, I'm not sure that there's a real dichotomy between the two things, because you have to have some understanding to be able to decide it. Because if you don't, it basically amounts to a glorified exercise in coin-flipping, which you really don't want to do, and I think everybody tries not to do. So you have to have some level of understanding. And so I think they really kind of go hand in hand.
Khurram Naik: Yeah, I guess what I mean is those are probably two phases, and I wondered if you felt, you understand and then you decide, and I wondered if you felt one phase is more difficult.
Judge Kennelly: Yeah, so I guess my pushback would be, I'm not sure they're distinct phases. I think for me they kind of happen at the same time. And that may go back to the I Love Lucy analogy. I don't have the luxury of saying, okay, I'm going to put everything aside for the next two weeks and just do this. I guess I do that in a sense when I have a trial going on, but even then there's before and after, and I have to do other stuff during the lunch break and things like that. I really don't have the luxury of saying, okay, there's only one problem in the world and I'm going to deal with it, except for little chunks of time. I'm working on this, I'm not working on that, obviously, but I don't have, and this is one of the differences, I think, between what trial judges do and what appellate-level judges do, you do not, generally speaking, have either the resources or the time, given the relative volumes, to spend overwhelming amounts of time on a single thing. On the other hand, except when you have to, which is the exception that proves the rule, so every now and then you get something, and I had one last spring where it's like, this is more important than anything else you're doing, you've got to drop everything and just work on this for two weeks. And that happens every now and then, but it's relatively rare, at my level at least.
Khurram Naik: Yeah. I think for my time, I interned for two judges in law school, and, you know, litigating in court, I have an understanding that a huge part of a trial judge's job is being efficient with time. And I think now, talking to you, I have a more enhanced understanding of what that looks like. And it's kind of interesting, because I think so few people associate government with efficiency, but I think this is one of the roles where government has to be very efficient, by convention or standard. So, an interesting application: how would you decide, I think at some level we understand that this patent case you're describing will require some level of more time spent understanding it than, say, a very simple slip-and-fall case. So can you give us some sense of the heuristics you're using to allocate your time and energy to cases based on their complexity?
Judge Kennelly: Yeah, let me think about that for a second. So there are a bunch of different kinds of tracks going at the same time. I've got stuff that the parties are submitting written submissions on that has to be decided. I've got the day-to-day stuff that I'm deciding at the snap of a finger, at the blink of an eye, which tends to be the less consequential things that aren't terribly complicated. I've got the longer-term stuff, where I know that this case has a trial date on such and such a date, so whatever I'm going to do before that has to happen before that, unless I want to move the trial date, and then I have this trial, and there's all this stuff I'm going to have to do around the trial. So, for me, and I consider myself organized, but maybe in a disorganized way, if that makes any sense, to a certain extent it's not that the squeaky wheel gets the grease, it's that the wheel that is about to go over the cliff has got to get the grease, or has got to get the brake, I'm mixing my metaphors there. And so a lot of the sorting out of what I'm going to work on on a given day is dependent on what's the most pressing at the moment. I'm like anybody else, I may go into work with a list of eight things I really want to get done, and if I get two of them done, I think, my god, this was a massive win, I got two out of my eight things done. How did I decide it was those two? Well, okay, today, for example, I had a hearing on a case that had to happen at a certain point in time, and, yeah, I'm the judge, so I could move the hearing, but I didn't, and so there was certain stuff I had to get done before this morning so I could be ready for that hearing. Next week I'm on a committee, and I've got to give a presentation at a meeting, and so before that meeting, which I don't have any control over the scheduling of, I'm going to have to set aside a certain amount of time to get ready to present. So a lot of it is just that simple, it's whatever happens to be most pressing. And then what you have to do kind of in the background, and again, there are trial judges who are more or less directly involved in this themselves, what I'm also doing in the background is making sure that the 30 new cases I got last month, something's happening in those cases, that deadlines are being set, or somebody's being told, okay, you're going to have a case management conference on such and such a date, so that everything has, one of the things I learned from other people when I started the job was, try to make sure that everything has some sort of date or deadline, because the last thing you want is to have stuff start slipping through the cracks. Now, you can always move the deadline, but make sure everything has one. And so a lot of it becomes kind of mundane, I've got all these deadlines, which are the ones I can move, which are the ones I really, really can't move because this really, really has to be done right now? So, for example, during the last 10, 11 months, because of the pandemic and because of some changes in the law, we now have, as district judges, the authority to do what some people call a second look on sentences. And so we've gotten this flood of requests from people who are in prison, that I put in prison, or that some judge who's now retired put in prison and I got assigned their case, saying, I'm going to die in here, let me out, I've done enough time. And obviously those things are more pressing; they have to go to the top of the list. Now, do all of them go to the very top of the list? No, they don't. Sometimes you may look at that and say, you know, maybe not right now, but maybe in another six months I'd consider this, so maybe put that on the back burner. So there are some things that kind of naturally have to go to the top of the list. I had this big case last spring that involved, again, the pandemic and how that was affecting people in a local jail, and because of the way that was presented to me, that was a drop-everything, all-hands-on-deck, everything's got to stop for the next X number of weeks so we can get this decided. And so some of the prioritization is happening that way. So I wish I could tell you that I could turn the camera around and there's my flow chart on the wall that tells, I don't have anything like it. It would be crazy looking. It would be like one of those cop shows on TV where they go into the crazy person's basement and they've got like 500 things up on the wall with strings between them, that's what it would look like. It would be scary, and probably not a good thing for anybody to see.
Khurram Naik: Well, it seems like that's a fun way to put it. I'm sure there are some things that are more systematized about it.
Judge Kennelly: Yeah, okay, there are, sure there are. So, X number of days after a case comes in, so when a criminal case comes in, I need to make sure that I have set a deadline for somebody to get that case going. When a criminal case comes in, particularly if the person's in custody, the first time they come in, I'm actually going to set that criminal case for trial, because with criminal cases we need to know that there's an end date. If I have a case that I know is going to go to trial, there are certain things that have to happen before the trial, and I know what all those are, and I'm going to set deadlines for all of those. So there is that. Everything else tends to be more case-dependent or situation-dependent.
Khurram Naik: One thing that I haven't gotten a sense of, I imagine the answer is yes, you do enjoy this, but do you enjoy writing opinions?
Judge Kennelly: Yeah, I do, and I don't. So, as I said before, we have law clerks, again, lawyers who basically act as the judge's lawyer. You're advising the client, namely the judge, on how he or she should decide a case. They help us come up with recommended decisions, and different judges have a different degree of involvement in that process. I actually do some of the decision-writing completely by myself without law clerks, and part of that is because I may have two law clerks working on this really super-complicated stuff that I don't want to pull them off of, that I really don't want to do from scratch myself, and there's this other thing going on over here, and I've just realized that that's got to get decided in the next week, so I say, fine, I'm going to do that myself. Sometimes it's just because I like to. For me, the process of solving a difficult problem was one of the more satisfying things about practicing law, and it's one of the more satisfying things as a judge, kind of working your way through a difficult problem and trying to come up with a just and reasonable resolution for it.
Khurram Naik: Do you have a favorite literary reference that you've inserted into an opinion?
Judge Kennelly: No, although I will say that I referred to Bob Beamon in the 1968 Olympics the other day. And I actually, on the phone yesterday, quoted Hyman Roth from The Godfather, where he says to Michael Corleone, this is the business we've chosen. Not, this is the life we've chosen, that's the way it commonly gets quoted, this is the business we've chosen. I said that to a very successful, very skilled criminal defense lawyer who always has too much to do and was basically complaining that he wasn't going to have enough time between some other trial and my trial. And I basically said, I'm going to quote Hyman Roth from The Godfather: this is the business you've chosen.
Khurram Naik: That's very impressive. Big Godfather II fan. And that's not the line I would have pulled up off the top of my head if I was going to make a reference to it. So that's a good insider one.
Judge Kennelly: Well, I actually did see your baseball line, because you were actually profiled in Docket Navigator, if you knew that.
Khurram Naik: Oh, in Docket Navigator? Yeah, so that's kind of funny.
Judge Kennelly: You know, one reaction to pick up on, you were talking about this earlier, I think we've talked about it in a couple different ways, but you've really underscored the experience you had before you were on the bench, the distinct practice you had, where you had both a civil and criminal docket. So you really touched on so many kinds of matters, and it gave you a really broad understanding of what the role entailed. And I just think that's, it sounds like a unique experience that not many other judges had. So can you talk a little bit about the impact of the diversity of experiences someone has? And we can talk about diversity as broadly as you want, beyond substantive, talk about that as well. So what are the ways that you feel that diversity of all kinds is beneficial for the bench, and what does it do to facilitate that?
Judge Kennelly: Well, so, no one person can be completely diverse by him or herself. And so when you talk about having a diverse bench, not everybody is, that means that you have this person from this background and this person from that background, and so on. The theory, at least part of the theory, kind of the looking-out theory, or one part of the theory, is that, to the extent that judges learn from each other, if you have that diversity of experience, then judges will be able to learn from people with various perspectives. Now, how much judges pick up and learn from each other, there's no systematized way for that to happen. A couple of the judges on our court in recent years have reinstitutionalized something that existed back in the early 80s, when I was a law clerk, which had to do with sentencing, I keep coming back to sentencing, but, again, it's the most difficult and probably most consequential thing that we do as judges. And the way it works is that we have a meeting every Monday over lunch, and any judge in the court can submit a case that they're going to have a sentencing hearing on. You submit all the paperwork, what we call the pre-sentence report, the parties' sentencing briefs, whatever else you've got, and everybody else looks at it. And then we kind of go around the room, or around the Zoom, I guess, at this point, and each judge says, well, this is what I think about this case, and this is the sentence that I would impose if it were my case, and here's why I would do that. And you get different perspectives. When this guy reinstituted it, there'd been various efforts over the years to do this, this is something that existed when I was a law clerk, back in the early 80s. There was a regular group that would actually meet in my judge's office every Monday afternoon, because he was the most senior in this group, and they did exactly the same thing. And it had kind of fallen away, particularly with the mandatory sentencing guidelines, because it didn't matter much anymore. And there'd been some efforts over the years to reinstitute it. My concern would be, well, you need to have a sufficient diversity of views and backgrounds and attitudes in this group for it to be meaningful, otherwise it's all just going to drive in one direction, one way or another. And I think we've kind of got that at this point. It's a good tool, if you will, for, as we have new judges come onto our court, not everybody has had experience in the criminal field, and even those that have haven't sentenced anybody, and we've kind of, as part of our orientation, marketed it to the new judges: you really should come join this group, it's beneficial. And, like I said, I've been doing this 21 years, and I still find it beneficial, even though I've sentenced hundreds and hundreds of people over the years. So, now I've completely forgotten what your question was, but I think that was a response to it. Do you remember what your question was?
Khurram Naik: Oh, that's a good question.
Judge Kennelly: There you go, both of us forgot your question.
Khurram Naik: I opened the floor to talk about diversity in a broad way.
Judge Kennelly: Yeah, diversity. Okay. So my point there was that if you have judges from different backgrounds, and they are communicating with each other, then that's beneficial, because I'm going to see how somebody who was a career prosecutor looked at this case, and I'm going to see how somebody who's a career defender looked at this case, and I'm going to see how somebody who's a career civil litigator, who didn't do any criminal cases, looks at this case, somebody who comes from this walk of life or that walk of life. So, internally, if there are judges, and, thank God, we have a couple in our court who've kind of kept this thing going, not myself, other people, if you have judges who are willing to create those mechanisms and keep them running in some sort of systematized way, you have that kind of feedback. So that's one aspect of diversity. The other aspect is kind of the obvious one. Particularly in the criminal field, if a person of color comes out of the holding cell at the side, and the whole courtroom is old white men, it kind of gives you a bad feeling. And, yeah, some of the judges are going to be old white men, but not all of them have to be, and not all of them should be. And so, from a public-facing standpoint, as a court, if we, to quote a hackneyed old phrase, if we look like America, that's going to be good in terms of public confidence in the judicial system, that it's a diverse group of people out there resolving your disputes, and not just a bunch of rich guys who are dabbling in this in their twilight years.
Khurram Naik: Yeah, there are a bunch of ways we can jump off that. But one way I want to jump off it, you mentioned several times the difficult nature of sentencing, and some of the changes with the second look, the opportunity that's given you for reflection. So one question I have for you is: what is difficult? I have an intuitive sense that what's difficult is, you know, someone's present, and then maybe it's difficult to determine how much of it is based on factors like we're talking about, does this person have a family, did this person contribute to society in some other way? So that's my intuition, but I want to hear from you.
Judge Kennelly: So the thing that's difficult about it is, like many things we do as judges, it's a question that doesn't have a right answer. It doesn't have a right answer. There's nobody who can come and say, with a straight face, that for this, this is the right sentence. There are many answers to that question. And that's part of what makes it difficult. The other part of what makes it difficult is, you're standing there looking at this person, and you're looking at all of what's behind them, and you're looking at their victims, if it's a crime that has victims, and you're thinking about how this affects all of these people, not just this person here, but his family, his victims, other people who might be affected by it. And then it's also difficult from a standpoint that, it's very easy to say, you know, just bang the gavel, although, by the way, nobody has ever banged the gavel in the entire time that I've been a lawyer and a judge. I've never seen any judge bang a gavel, except on TV. But it's very easy to just go out there and figuratively bang the gavel and say, you know, 20 years. But if there's any kind of level of humanity, you have to understand that that's a meaningful thing that you think about. What I'm doing here is I'm saying that for the next X, this person is going to live in a cell. Everything they do is going to be watched, everything they do is going to be controlled. They're not going to be able to leave. Even if it's a so-called Club Fed, there's a fence on the outside, they can't go away, they can't pick what they want to eat for lunch, they can't pick when they're going to have a shower, they can't pick whether they're going to have a shower, they can't decide that I'm going to go up the street and get a cup of coffee, they can't say I'm going to go out and jog five miles right now, because it's not your time on the yard or whatever. And it's a very consequential thing. And so, if you think about any of that, as one of our more senior judges once said, if you're doing it right, any sentencing takes a little bit out of you. And it does. And if you're doing it right, meaning if you're really thinking about all that stuff, now you're also thinking about the victim, and you're also thinking about the future victims, if this is somebody who you think might do something. You've got to think about all that stuff. And, like I say, it's something that doesn't have a right answer. I guess when we had mandatory sentencing guidelines, in some, in my view, perverse way, it was easier. But there's no training. You think they do courses in sentencing? They do, but they can't tell you what's the right sentence for the guy who just gave somebody a note saying, if you don't give me all the money, I'm going to blow your head off. What's the right sentence for that? I don't know. Is it five years? Ten years? Twenty years? A year and a half? Is it probation with a lot of mental health counseling and drug counseling? I don't know.
Khurram Naik: So you mentioned, it depends, you mentioned that this premise of, if you're doing it right, it takes something out of you. So then what recharges you? What is it that sustains you in the role? And I wonder, there are different ways to answer this. Maybe one way to answer it is: is it something about the substantive aspect of the work, is it something about how you see it affect the parties, is it something about how you feel this affects the public in general and how justice is administered, is it something about how you interact with your team? What are the things?
Judge Kennelly: Yeah, it's a lot of those things. I think in part it's the knowledge and the awareness that you're carrying out this very important public function that's necessary for our type of society to continue to exist, so that we're not just fighting these things out in the streets somewhere. I think it's the satisfaction of having done a thoughtful and thorough job on whatever it is that you're working on. I think it's, on a completely different level, the ability to supervise and shepherd and mentor younger lawyers who work for you. It's a lot of things like that. So it's not any one thing, it's a lot of things. But it is a satisfying job. That doesn't mean every moment of it is fun, a lot of it's not.
Khurram Naik: So you talked about, when we were talking about it earlier, the importance of the public-facing component of the judge's role. And something that is strange about the role of a federal judge, compared to your counterparts in other branches of government, your counterparts in the executive branch, the cabinet, or the legislative branch, there's plenty of attention on senators and congresspeople, so, in relative terms, judges get an infinitely smaller amount of attention put on them. I mean, if we walked down the street and asked people, could you name one federal judge, most people can't. So I'm curious, at an initial level, how does that make you, what's your reaction to that? Is that something that we could use "feature or bug" as a construct for? As an initial impression, what do you think about the fact that an individual district court judge gets so little attention, comma, scrutiny?
Judge Kennelly: Well, I'll tell you what. I think part of that is that we're very geographically specific here. So you and I live in a city where, like I said, on my court there are 45 or so judges, and then in the same building there are 15 or 20 bankruptcy judges, and in the same building there are another 15 or so appellate judges. I'm not going to say we're a dime a dozen, but there are a lot of us. And so there are a few people, somebody may say, oh yeah, I know about Richard Posner or something like that, because they're a more prominent person, but if I'm in small-town USA where it's a one-judge court, maybe the local federal judge in that town is somebody that everybody knows, and when they walk down the street, some people say, top of the morning to you, judge, and tip their hats or whatever. So I think part of it is that. Aside from that, though, we don't get recognized, but I really think that of the branches of government, what we do is way more transparent than any of them, because we have to explain our decisions. When Representative So-and-So is voting on this bill or that bill, he doesn't have to issue a written opinion saying why he voted on it. I do. There's a rule that says I do. So I have to explain it. And largely what we do happens in the open. There are no back-room meetings with lobbyists, not that I'm critical of that, but there are no back-room meetings with lobbyists. It's all happening on a record. Somebody's taking it down. It's illegal for somebody to have a separate meeting with you. So we're much more transparent than, I think, any of the other arms of government in that way. And so, yeah, does somebody know who this or that particular judge is? No. But they know that we have this system out there that they're reading about every day, where somewhere somebody says, yeah, okay, I'm letting this person out on bond, or I'm not, and here's why. And if you're paying attention, you get to see all that stuff. To me, that's a terrific feature of the system, that it's all done in this very transparent way. So, yeah, I don't care if I get recognized walking down the street or not. In some ways, it's kind of a good thing, because half the people would be saying, wow, that was a boneheaded decision, you shouldn't have, that personal injury case the other day, what were you thinking when you did that? Not that. No, because that's not the organized, systematized analysis. That's just somebody reacting to what they saw on Twitter or whatever. But that wouldn't be bad either. The problem is, I can't talk about it with them. So I just say, thank you very much, nice to see you, and, like, let me get out of here really fast.
Khurram Naik: It's interesting, because I think the recurring thing that we're talking about is the benefits and the consequences, or the drawbacks, of judges being these kind of, as you're saying, these individual law firms, or however you want to put it. There are benefits to this "let a thousand flowers bloom" kind of approach. But then also, it seems to me, maybe there are some missed opportunities for making things more efficient and systematic and fair, possibly, recognizing some of the nuance we talked about, that different matters require different management. But then it also ties into the issue, broadly speaking, of overseeing judicial conduct, and you were referencing the lack of something like an ombudsman or inspector general kind of aspect, that so much of the regulation of judicial conduct happens through the appellate mechanism. But you're also noting earlier that there are any number of decisions you make that are almost insulated at that level, the amount of deference given. So it seems to me that some of what we're talking about in a variety of contexts, say, intra-Northern-District, between litigants and the court, between the public and the court, it seems like there are some missed opportunities for feedback loops to get more information. It ties even into your comment about avoiding robe-itis. So it seems to me that this, it's not exactly a solution right now, there's definitely a lot of nuance to come, but it's a theme, I should say. So I'm just curious about the ways in which you think there are opportunities for more public engagement in the role of a district court, if the thing ultimately that affects things is, say, how district court judges are confirmed, and we can talk more about that process too. But maybe we can just start with that, unless there are more thoughts you have on this issue.
Judge Kennelly: Not really. I mean, as we've talked about it here, it seems to me that it really falls, you're not going to expect John Q. and Jane Q. Public to do that. They don't have the time, they don't have the tools, the background, the knowledge. It really falls on the organized bar to come up with mechanisms for providing feedback to people. And I recognize that it's a massive undertaking, and so it's not likely to happen in any great way. Because the feedback that we get, which is reversed-or-affirmed by the court of appeals, is a slice of what we do. Did you make the right decision or the wrong decision in this particular situation? But it's only a slice. The case management stuff that we're doing is not getting reviewed by anybody, except at the extreme margins. I tell my new law clerks when I start that at least 95%, if you think about all the decisions I have to make, at least 95% of them are effectively unreviewable, either because they're just plain unreviewable, or because they're never going to get appealed, or because if they do get appealed, the standard of review is so deferential on appeal. It's this very tiny slice of things that are effectively reviewable on appeal. And even then, there are all these disincentives to appeal, such as cost. So most of what we, the formalized review process of the substantive accuracy of your decisions is just a really narrow slice of what we do. And what you'd like to see coming out of the organized bar is some way of doing that. Of course, there are all sorts of disincentives to do that too, because, who's going to sign that document? Who's going to sign the document that says judge so-and-so is a menace to society and is running roughshod over litigants in cases? Because that person, maybe it just gets signed by the local bar association, but there's somebody who's the president of that, and there's somebody who's the vice president, and somebody who's the chair of judicial evaluations, and are those people going to feel, they don't have lifetime tenure, and they've got to appear in front of the people they're evaluating. So it's tough. I don't have a good answer for it.
Khurram Naik: Yeah. Let's talk a little more about the confirmation process, because earlier you were kind of noting some of the ways in which that's changed in the time that you've been appointed. So, tell us about the ways.
Judge Kennelly: Yeah. So I think it's pretty much conventional wisdom that up to a certain point in time, and let's put the point in time somewhere around the mid-90s, there was not a whole lot of serious scrutiny to federal district judge appointments, trial-level judges, partly because there were so many of them, partly because the perception was, what are they doing that's all that important? They're not setting precedent for anybody. It's not the Supreme Court, it's not the Court of Appeals. And so, historically, district judges got confirmed pretty quickly and without a lot of controversy, except at the extreme margins. And that's not the case anymore, and hasn't been the case for a few years, even before I went through the process. And I think it's partly because, over the years, it's become perceived what a significant role the judiciary has in, I'm not going to say political decisions, but policy decisions. And it's normal, I think, that there would be more scrutiny as that's perceived to be a thing. And I think there's probably a greater level of awareness that even though people like me aren't the final decision on anything, we do set the table, so to speak. And maybe some people at my level end up moving up to the upper levels. And so we have to pay attention to these people before they get ensconced. And I think that's true on both sides of whatever aisle you're talking about. So there's just a lot more scrutiny of it now. You didn't have district judge appointments getting held up in the old days. The local senator would suggest somebody to the president, and the president would pretty much say, okay, what do I know about the district court in Keokuk, Iowa? I'm going with what Senator So-and-So says, because he lives there. And so there wasn't a lot of scrutiny at that level. And then the person would get in front of the judiciary committee, and it's a district judge, and unless there was something really bad in their background, they would kind of fly through, and that would be the end of it. So then that changed. And it changed, I think, largely for what people would call political reasons, again, I say on both sides. And I can't be critical of that, because it's certainly true that in some, I would say extremely tiny percentage of, cases, some case I have is going to have some greater impact on society. I think that's a really tiny slice of what I do in any practical way. So that's all changed. And district judges are still not as controversial as appellate nominations, and certainly not as Supreme Court. But there tends to be a lot more scrutiny given to them, and a lot more situations where people are held up for one reason or another, or have to get their nominations pulled, or something else like that happens.
Khurram Naik: Now, in the interest of, for the benefit of the judiciary and the quality of the people that are selected, what are the things that you wish the general public would ask more of their senators, or expect from their elected officials, as part of the selection process for judges? What are the ways you think the general public.
Judge Kennelly: Well, I guess what I would say is, and I don't blame anybody in the general populace for thinking this, because it's kind of what gets drummed into people, but, please don't, so, my job involves processing cases, involves deciding cases, but it involves processing cases. It involves case management. It involves getting people to do things they don't want to do when they don't want to do them. And it involves giving people a fair process by which their cases are going to get decided, and giving them an opportunity to do all that. And so, please don't pick people like me based on how you think I'm going to vote on the burning issue of the day, because, number one, I'm probably never going to have to decide that case, and number two, even if I do, it's going to get reviewed at least one, maybe two levels above me, and that is one-tenth of one percent, at most, of what I do. And so what you ought to be looking at is: are you appointing somebody who has the background and skill to be able to learn, to learn on the job, and not get a high-falutin view of themselves, where they're marching around like the Lord and Master of the Universe? That's what you ought to be focused on. So, breadth of experience, ability to deal with different types of situations, ability to listen. What is it in their background that gives them the ability to do that? People from different kinds of backgrounds, practice backgrounds, life-experience backgrounds, and so on. That's what people ought to be looking at. And, honestly, I think to a large extent that still happens. And don't get me wrong, I'm not saying that the process is broken or anything close to it. I don't think it is. There's a lot more scrutiny. But I just think that we, as human beings living in society, are kind of driven to think about everything as black and white, or red and blue, or whatever you want to call it, and there's a lot more to my job than that. As I said, although I got appointed by a different president, I got appointed by President Clinton, I have a lot more in common with a district judge who got appointed by President Reagan than anybody would think, because we're doing the same thing. We're managing this fire hose of information that's coming out, and we're managing this herd of cats that are called lawyers that are dealing with this. And, yeah, we might decide this case or that case in a different way, but we're largely seeing the same types of things, and we're in a problem-solving business. We're not in a business about making a marquee decision that's going to be the thing that gets reported on the 5:30 national news today. That's not the enterprise.
Khurram Naik: So, connecting some dots, we've emphasized this case management approach, and how much just the raw 30 cases a month constrains the decisions the judge makes. There are these Federal Rules of Civil Procedure, and there are all these aspects of the judge's role that are just really about managing this flow of material, and you're going to be selecting for anyone who can do that. I'm also trying to connect the dots to what you said is the most difficult part of the role, which is sentencing, and, necessarily, you're saying part of that is weighing information about the seriousness of the offense and the context in which it was conducted. And so it seems to me that necessarily that's drawing on life experiences, perspectives, backgrounds that differ. And so I'm trying to think about how to reconcile those two, where it does seem like there's a major need to have people who are sensitive to different walks of life. And the hard part about that is, to what extent does that information get pooled, or make its way horizontally to other district court judges? As you're saying, there's a mechanism for it to flow up, and maybe some of those appellate court judges' opinions flow down to other district court judges through the issuance of an opinion. So that's one thing I'm trying to make sense of. Maybe I can pause there, and we can pick up with the next part of that question.
Judge Kennelly: Yeah. So that's the problem, the horizontal flow of information. We don't have a good mechanism for that. And maybe we should. What we've got right now is, we have judicial conferences, and we have seminars, and we have these kind of informal groups like the one I described before that talks about sentencing. And we have bench-bar meetings, and many judges are members of bar groups of one kind or another, Inns of Court, other types of bar groups. And so there's no formalized mechanism for it. It's all kind of, you get as much or as little of it as you want. And there are plenty of judges who aren't interested in getting any, and that's fine, that's what they want to do. But we don't have a good mechanism for that. We don't have any requirement, in the federal system, of continuing judicial education. It's available, but it's not required. I'm not sure, you have to take CLE as a lawyer. How good is some of that stuff? Who knows? Don't answer that, because I'm the instructor on some of it, and I'm not sure I want to know how invaluable it is. But, yeah, there's not a great system in place for that. And anything you'd do, we could do it here, like I say, we've got 21 active district judges and so on and so forth, but if I'm in a two-judge district, yeah, maybe we're having lunch together, but where else is the information flow? It's just the two of us. You'd like to get information from 14 other people. So I've gotten it over the years from being on committees that involve judges from other districts, being involved in things around here, being involved in bar groups and going to meetings, and being part of continuing legal education, and trying to listen to what I'm hearing, not just, like I say, getting up there and pontificating. But there's really no organized mechanism for it, and that's probably a fault.
Khurram Naik: You know, it's an observation you're making. And, of course, I think it's fascinating, one of the last things, because the judge's role is to issue the opinion and the basis of their decision, and talking about the appellate mechanism for review, you're talking about how that's just a sliver of all the decisions that you're making. But even that sliver, the people that have gone on to be appellate court judges were district judges. So that pipeline seems to still affect, not all of them, okay, but yeah.
Judge Kennelly: Right. Yes.
Khurram Naik: So, jumping off that, it seems to me that there's so much about the role of the district court judge, I think even the general public would think about this, and the litigants also think about this, as much as judges are bound by rules, so much of the role of the judge is discretion. And we look to judges for their equitable wielding of that discretion. And so, in view of the fact that so little of the decisions a judge makes are reviewable, what are the forces that steer judges as a whole toward making the right calls?
Judge Kennelly: Yeah, I get it. So, if you're paying attention to what you're doing and how it affects the cases, if you're really paying attention to that stuff, then you're learning from that. You're finding out, I did this, and, you know what, I did this five times and it really didn't work right, and I did this two or three times and it did work, let's try it in this other context. And what "work" means, we could talk about, I've got some harder stuff on that in about ten minutes. But that's, I guess, what I would say. That's how you learn it. You learn it from paying attention to the effect on the case. And you're going to make mistakes. Some things are going to get screwed up. That's a fact of life. And you hope that then you learn, on the next case, I'm not going to make that same mistake again.
Khurram Naik: One thing to pick up on, on the application of it that I'm thinking of, is: how is it that judges know what their blind spots are? Or, what are the ways in which anybody should know what their blind spots are, how are you any different from anybody else? The specific kind of thing I have in mind is, there's no judicial rule that requires you to hire diverse clerks. You know, ethnic-background diversity, sexual orientation, you name the kind of diversity. But you do those things, right? So what makes you do those things?
Judge Kennelly: Yeah. Just saying, it's the right thing to do, and I think it's important. And part of what I learned from when I was a law clerk is that it's this extraordinary opportunity to learn, and it's an extraordinary gateway into other things. And I try to give that opportunity to as many people as possible, and not all with the same background, because if I did, I'd just be perpetuating the rest of the system just kind of looking like me. And so it's because I think it's the right thing to do. There's no rule that requires me to do it. As a system, we get criticized, accurately, for not being attentive enough to that kind of thing on an overall basis. But I think in this day and age, most judges try to be attentive to it. You don't succeed in each and every situation. But it's because most of us are in this not because it's just the cushy job that you want to put your feet up on the table and live out your golden years, by the way, if you did that, it's a stupid decision, because it's a hard job, but we're doing it because we have a commitment to service, and a commitment to the system, and think that it's a good system, but always think that it can be improved. And that's one of the ways to improve it.
Khurram Naik: You know, we've talked a lot about, in some ways, reflections, talking about ways that you've changed, or the bench has changed, over time. And we've talked a lot about the present, how you manage on a day-to-day basis the things that come up for you. I'm curious to hear about how you think about the future. You know, say, an attorney turning into private practice is thinking about changing trends, like, is the kind of work that I'm doing going to be in demand, are my clients going to be in a good spot, is there something else that we should be moving into? Is that one of the things that you're thinking about, or maybe in general judges think about, as far as prospects, maybe let's say on a ten-year time horizon? What are the changes you're anticipating, or the ways you're thinking about it?
Judge Kennelly: Yeah, you know, if you're looking for the "let's think some deep thoughts" question, you're talking to the wrong guy. I'm more of a nuts-and-bolts person. And what I'm thinking about is the same thing everybody else is thinking about. We've had to change everything, the way we do everything, over the past year, and how much of that's going to stick, and how much of it's a permanent change, and how much of it is going to flip back to the way it was. And, again, maybe it's just because of my job, or the fact that I'm suited for it in some perverse way, but that's kind of what I'm thinking about. I'm not thinking about, in ten years, are we all going to be working for Amazon, or are we going to be delivering our decisions by drone or whatever. So that's what I'm thinking about. And, you know, I think, like in a lot of situations, the answer is that some stuff is never going to go back to the way it was, and some of it, in some ways it's going to be good, and in some ways it's going to be, dang, that's a shame. I wish I could give you the nice philosophical answer, but I really don't have one. I will say, in the long term, I think, just in society at large, there is a view out there, again, I keep coming back to the criminal and sentencing, that as a country, we have tended to imprison too many people for too long. And I think over time that's a long-term trend that's likely to continue. But aside from that, what the trends are in civil litigation, who the hell knows? I don't know, sorry.
Khurram Naik: I have a question, then. So, nuts and bolts, I know that you're a nuts-and-bolts person. So what is a nuts-and-bolts change that you've gone through right now that you're enjoying?
Judge Kennelly: That I'm enjoying? Oh, man. Nothing. It's kind of stunk for the last ten months. I much prefer, I think in our court, at least, because, unlike most other federal district courts, we've been very much an in-person court. Most federal district courts, for years and years and years, have operated by phone, or just on paper, not seeing lawyers. I still remember the meeting I went to, where I was on a judges committee, and we went around the table, and there was a judge from a district in Florida, and I said, you know, I'm so-and-so, I'm from the Northern District of Illinois, and he turned to me and he says, oh, you're in that court where you guys see lawyers every day, why would you want to do that? And I said, well, because we like it, and it's human contact, and so on. And so I think that's going away. And I think probably what's going to happen is that a lot of that's going to stick, because from a cost and convenience standpoint, it's way more efficient and less expensive for people to have a ten-minute phone call rather than a ten-minute court appearance that requires basically two hours of commitment of your time, to come here and sit around and wait and talk, and then go back, and go through security on both ends and whatnot. So I think there's going to be more of a trend toward that. I'm at work right now, and I'm sitting here in this gigantic office, and there's nobody else here. Nobody. My assistant's not here, my law clerk's not here, they're all working at home. My court reporter, I had all these hearings today, she's sitting at her home. My courtroom deputy clerk, she's sitting at her home. I think there's going to be more and more of that. That's a damn shame, too. It's great for a lot of people, on an individual basis. It gives people a lot more contact with their family. In a place like Chicago, you're saving two hours every day, you're saving two hours of commute. That is great in a lot of ways. But in terms of what does this mean for the system of justice, that we're now just doing stuff on the phone, I don't know. I don't think it's good. Sorry.
Khurram Naik: That's okay. We can end on that note.
Judge Kennelly: All right. Well, hopefully you'll get five minutes' worth out of this anyway.
Khurram Naik: So, I think I got a few more than that. But, Judge Kennelly, thanks so much for taking the time. Very fascinating and insightful, and I really appreciate you.
Judge Kennelly: Well, thanks for the opportunity. It was fun.