Mimesis Law
19 April 2019

The Pat Borchers’ Rule: Posner “Appears To Have Been A Complete Jacka*s Of A Trial Judge”

July 6, 2016 (Fault Lines) — Reading the title, one might fairly conclude that I was off on just another unbalanced rant.  But, when a brilliant and incredibly nice person, and a distinguished academic like Pat Borchers, with the unusual experience (albeit fairly short*) of having actually been a trial lawyer before becoming a law school professor and then a law school Dean, writes such a pointed criticism it is well worth noting. Pat’s piece is entitled, THIS IS WHY WE CANNOT HAVE NICE THINGS!: A sorta response to Richard Posner’s Green Bag Posts.

Some months ago, I wrote for Fault Lines about Judge Posner’s critique of trials in the federal courts, entitled “Judge Posner’s Critique of Trials in Federal Court is Wrong or Irrelevant.”  My post concentrated on Part I of Judge Posner’s Green Bag articles,  WHAT IS OBVIOUSLY WRONG WITH THE FEDERAL JUDICIARY, YET EMINENTLY CURABLE, Part I, 19 GREEN BAG 2D 187 (2016).

I am heartened to learn that Pat and I share the same views. I know, like and have enormous respect for Pat. He is the type of legal academic that our law schools desperately need—a professor with real life experience as a trial lawyer, a great teacher of both theory and practice, and an academic who fights against the disjunction between the practicing bar and the legal academy.

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Pat first acknowledges, correctly, Posner’s genius.** Pat writes:

I don’t toss around lightly the term “genius” but it probably applies to him.  With apparently little formal training in economics, he is the reputed (probably correctly) father of the Law and Economics school of jurisprudence, which advanced the thesis (in broad strokes) that important rules of law were created to maximize economic efficiency.  The school also (again in broad strokes) advocates for resolution of doubtful legal issues in ways that would maximize economic efficiency.

He has been a remarkably prolific writer, Setting aside his over 1,000 judicial opinions and his articles (100 at least) he is the author of many books.

But then Pat eviscerates Posner abilities as a trial judge.  He also convincingly explains why Posner’s criticisms of federal trials are mainly off base and, frankly, often goofy.

Pat writes:

Let me begin with what I find wrong in Part I [to the Green Bag series].  He opines at great length about what he thinks is wrong with trials.  Much of this is based on his “volunteer” work as a federal trial judge, which is to say that he has accepted appointments as a Federal District Judge — to which he was entitled as a U.S. Court of Appeals judge.

I’m sincerely grateful that I never had to try a case with him as the presiding judge, because based on his writings he appears to have been a complete jacka*s of a trial judge.  Based on his biography, I doubt that he has ever been a trial lawyer, coached a trial team, or ever been involved in a trial except as an apparently sanctimonious trial judge.

Given balanced facts and the usual rules, I (and several other members of the Creighton Law faculty) likely would kick his butt if he were the opposing attorney in a trial, to say nothing of many of our students.  Being smart doesn’t make you a good trial lawyer — it just makes you smart.  Moreover, he lives in a world where middle-of-the-pack law schools like Creighton (which has won national championships in trial competitions) don’t exist, at least in terms of where he hires his clerks and interacts with law faculty and students.  See, here’s the thing — trials aren’t about convincing a jury where the average IQ is 150, but instead 100.  He tries to acknowledge this by drafting what he thinks are clearer jury instructions, but much of the rest of what he does (limiting objections to one word, limiting the number of exhibits and so on) has to so hog tie the lawyers that one wonders how they can effectively try the case. Posner probably could learn to be a good trial attorney, but I see no evidence that he is. (Emphasis added.)

Let me sum up.  I propose (not completely tongue in cheek) that the Judicial Conference of the United States adopt what I will call the “Pat Borchers Rule.”  That is:

Except for judges like Bill Riley, Chief Judge of the Eighth Circuit, who was a distinguished trial lawyer for decades, appellate judges should never, ever sit as a federal trial judges even if they are geniuses—it is judicial malpractice for them to do so.

Richard G. Kopf
Senior U.S. District Judge (NE)

*While relatively short, Pat’s experience as a trial lawyer was quite successful. For example, Borchers then practicing law in Sacramento, handled Board of Supervisors v. Local Agency Formation Com., 3 Cal. 4th 903, 838 P.2d 1198 (Cal. Sup. Ct., 1992). There he successfully represented a citizens group attempting to form the new city of Citrus Heights, California. He effectively argued that citizens of proposed new city did not violate the Equal Protection Clause by restricting voting to those within the proposed city’s boundaries.

**Pat’s probably a genius too. Before graduating in the top 2% from the law school at the University of California, Davis, and clerking for Judge (now Justice) Anthony Kennedy then on the Ninth Circuit, Pat obtained a B.S. in physics, Cum Laude, from Notre Dame. He was also that school’s Rhodes Scholar nominee. You can find Pat’s current Curriculum Vitae here.

5 Comments on this post.

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  • repenting lawyer
    6 July 2016 at 10:19 am - Reply

    Not sure I buy Borchers’ critic of Posner or the almost cultic reverence youth have for trial lawyers, but I join in your praise of Pat. The next best thing to the faculty dream of no dean was Pat as dean.

  • Richard G. Kopf
    6 July 2016 at 10:36 am - Reply

    repenting lawyer,

    Question:

    From the perspective of a law school dean, what’s the only difference between law school faculty and terrorists?

    Answer:

    Law school faculty refuse to blow themselves up!

    All the best.

    Rich Kopf

    • repenting lawyer
      6 July 2016 at 10:58 am - Reply

      Judge, I did the next best thing to blowing up, I retired.

  • Rumpole
    6 July 2016 at 1:53 pm - Reply

    What’s wrong with having appellate judges step down to hear cases at trial from time to time. They let the district judges step up and sit on panels from time to time- I mean fair is fair after all. Just as long as they apply good old fashioned common sense:

    https://youtu.be/PIGzhq9GDdM

    • Richard G. Kopf
      6 July 2016 at 9:12 pm - Reply

      Rumpole,

      Maybe this: Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477 (7th Cir. 2000) (partially reversing Judge Posner sitting as the trial judge after he granted a motion for new trial on a breach of contract claim thus causing two trials with the second one being held to be a nullity on appeal).

      As for the Courts of Appeal allowing district judges to sit there by designation (see, e.g., my dissent In re Grand Jury Subpoena Duces Tecum, 122 F.3d 910, 932 (8th Cir. 1997) ((asserting that Mrs. Clinton had an attorney-client privilege to refuse to produce a White House lawyer’s notes of a conversation between Clinton, her personal lawyer and the White House lawyer)), if they are dumb enough to do so, that’s their problem.

      Seriously, I think Courts of Appeal judges who have real trial experience do the rest of us a great service when they help out in the district courts. I just don’t want rookies like Posner mucking about. All the best.

      RGK