Washington Lawyer

Legal Spectator: Courthouse Gossip

From Washington Lawyer, May 2001

By Jacob A. Stein

spectatorJeffrey Brandon Morris is the author of a well-done and interesting history of the District of Columbia Circuit titled Calmly to Poise the Scales of Justice. Space did not permit Morris to give more than a passing reference to many of the judges he mentions. Perhaps this is the time and place for a few personal recollections of the trial bench of yesteryear.

Let me begin with Alexander Holtzoff: Judge Holtzoff had no patience with a lawyer who did not say right away what he wanted the court to do. If the lawyer commenced the argument in support of a motion for summary judgment with the facts and the law, he would be jolted by Judge Holtzoff: “Stop! Stop! What is your application?” If that did not work, the judge said, “The court is passing this case until counsel decides what he wants.”

When ruling on motions, Judge Holtzoff asked counsel a few questions concerning only the facts. He then handed slips to his messenger, who brought the books from the library to the judge. When the lawyers concluded their arguments, Judge Holtzoff had a bench full of books. Each book marked by slips of paper. Judge Holtzoff then dictated, right then and there, his well-drafted findings of fact and conclusions of law.

Judge Holtzoff was one of the original drafters of the Federal Rules of Civil and Criminal Procedure. He enjoyed drawing on his own unparalleled and comprehensive knowledge of statute and case law in his correcting of counsel.

He did not take kindly to reversals by the Court of Appeals. After all, an appellate court must accept the trial judge’s factual, and with respect to the law, Judge Holtzoff was confident that he knew the law as well as any appellate judge. When the appellate court reversed with instructions, Judge Holtzoff often stated in open court that it was difficult to understand the instructions, but he would do his best despite the confusion.

A story that made the rounds involved a conversation between Alexander Holtzoff and Thurman Arnold before they became judges. Over lunch Holtzoff asked Arnold questions concerning Arnold’s background. Arnold included in his response that at one time he was dean of the West Virginia Law School.

Holtzoff: “West Virginia Law School. I never heard of it. What was it like?”

Arnold: “Alex, it was the very Holtzoff of law schools.”

Judge Richmond B. Keech gave me a young lawyer’s learning experience.

I tried a criminal case before Judge Keech. I lost. The defendant went to jail. Some months later I received a letter from the defendant telling me of a momentous event. He had discovered right there in the jail an inmate who confessed to the crime. I interviewed the inmate. He gave me an affidavit that set forth the confession. I filed a motion for a new trial. Judge Keech, after hearing my brilliant argument, denied the motion. He then said he would like to see me in chambers.

I found my way to Judge Keech’s chambers. He invited me in and offered me a chair.

“Counselor,” he said, “see that file cabinet near your chair? Please pull open the bottom drawer and pick out at random a file and hand it to me.”

I looked at all the files in the drawer and picked out one right in the middle. I handed it to the judge. He then read from the file an affidavit in which a convicted defendant had the marvelous coincidence of discovering the real guilty person right there in the jail.

“I have put in that file drawer all the motions for a new trial based on the discovery of the guilty person right there in jail. It happens so often I have grown skeptical of its validity.”

Now Judge Luther Youngdahl. First, his appearance. He was well over six feet tall. He had been a college football star and he maintained the posture of an athlete. He had a full head of white hair that contrasted with his reddish complexion. He had served as a judge and as the governor of Minnesota. There was talk that he was preparing to run as a Republican for the Senate and maybe for president. Why would he accept a judgeship—not in Minnesota, but in Washington, D.C.? And why would President Truman appoint a Republican?

The rumor was that Hubert Humphrey, a Minnesota Democrat, had similar ambitions, and when Youngdahl discovered that a tendency to high blood pressure may be an impediment to his political ambitions, he let it be known that he would be interested in the next federal judgeship that was available. Whether all or part of this story is true, I cannot say.

Judge Youngdahl taught the local bar that it was only the rare civil case he could not settle for the parties. How did he do this?

First, he took the parties and their counsel into his chambers. The walls were covered with career pictures: Youngdahl as a judge of the Minnesota Supreme Court, Youngdahl as governor of Minnesota, Youngdahl as head of the Boy Scouts of America, Youngdahl receiving honorary degrees, Youngdahl as the Lutheran of the year, and on and on. Exposure to all of this petrified acclaim, together with the godlike appearance of the man, intimidated all who were in his presence.

He would say to the parties that he had read the file and he now wanted to hear from each of the parties, in his or her own words. He never interrupted.

When the narration was over, he said, “I shall now write on this slip of paper what I think this case is worth. I will not show it to anybody. I want my law clerk, who is here and who has read the file and has heard us discuss the case, to write out on a piece of paper his number—what he thinks the case is worth. Then we will read off the numbers.”

It often happened that there was always a close high–low between the numbers of the law clerk and the judge’s number. Thereafter the judge gave a recommendation that the parents found reasonable.

Judge Charles Richey. He had an active trial practice before his appointment by President Nixon. He was sympathetic with the difficulties of the life of the trial lawyer. He made a point of flattering the lawyers who appeared in his court. He outdid himself if the clients were present. The lawyers loved the kind words. They ordered transcripts of the judge’s remarks. Judge Richey, commenting on the practice, said it made the lawyers feel good and it gave the court reporter some spending money.

Jacob A. Stein may be reached by e-mail at [email protected].