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2 federal judges have changed their minds about senior status; will 2 appeals judges follow suit?

By Debra Cassens Weiss

December 5, 2024, 10:02 am CST

After President-elect Donald Trump won a second term in the White House, two Democratic-appointed federal judges announced that they no longer plan to take senior status.

The reversal means that there will not be two additional vacancies for Trump to fill when he takes office, report Reuters, Law360, Law.com and CNN.

The two judges are:

  • U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina, an appointee of former President Barack Obama. Cogburn had announced his plans to take senior status after his successor was confirmed in 2022, but Biden did not choose a replacement. Any nominee would have needed the approval of North Carolina’s two Republican U.S. senators under a U.S. Senate custom of blue-slip approval.

  • U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, an appointee of former President Bill Clinton. Marbley had notified Biden of plans to retire in October 2023, according to the Columbus Dispatch and Reuters. Biden had not nominated a replacement, which would have needed the support of Vice President-elect J.D. Vance, who’s currently one of Ohio’s two senators. The other senator is Democratic Sen. Sherrod Brown.

Judges can take senior status, which allows them to reduce their caseload, if they are older than age 65 and have been on the bench at least 15 years, Reuters explains.

The judges’ decisions come amid a deal between Democrats and Republicans in which the Senate won’t hold votes on four of Biden’s appeals court nominees while advancing the president’s district court nominees, according to the Associated Press and Bloomberg Law.

The deal was made after Republicans used “stalling tactics” to hold up judicial confirmations, according to Bloomberg Law.

The deal gives Republicans a chance to fill seats on the 3rd U.S. Circuit Court of Appeals at Philadelphia and the 1st Circuit at Boston. The two other appellate judgeships are not yet officially open because the judges made their transition to senior status contingent on confirmation of a successor.

Those two judges are Judge Jane Branstetter Stranch of the 6th Circuit at Cincinnati and Judge James Andrew Wynn of the 4th Circuit at Richmond, Virginia.

Republican Senate Minority Leader Mitch McConnell of Kentucky is worried about the possibility, according to CNN’s reporting on his comments.

“Never before has a circuit judge unretired after a presidential election,” McConnell said. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”

Ari Kaplan recently spoke with Jamie Berry, the president of Evolver Legal Services, an e-discovery and litigation support services company.

They discussed how client service has changed with the emergence of generative artificial intelligence, the most common challenges that legal teams face in litigation, and the evolution of the practice of law.

Ari Kaplan: Tell us about your background and your role at Evolver Legal Services.

Jamie Berry: I got my start in e-discovery fresh out of law school in 2001. It was a temporary opportunity in what would later become DLA Piper’s litigation support group. We used summation to code and search medical records for a large class action matter. I became the firm’s litigation support manager and have served in various leadership roles at small and large ALSPs before becoming president of Evolver Legal Solutions, managing the entire business. It’s been a great ride.

Ari Kaplan: What distinguishes Evolver’s approach to e-discovery?

Jamie Berry: Evolver takes a novel approach to e-discovery and legal services in general. It has a Back to the Future style in which our focus and commitment are on creating a client-service-centric partnership, where we strive to drive our clients towards outcomes. In the process, we optimize speed, cost, accuracy and security to drive greater efficiencies. Our differentiator in a crowded marketplace is the wealth of expertise that our team brings to each case, coupled with the company’s white-glove concierge approach of listening to its clients and prioritizing collaboration.

Ari Kaplan: How has client service changed in an era of emerging generative AI?

Jamie Berry: AI has helped client service incorporate validation and collaboration into the engagement. It really makes each matter similar to a car with two steering wheels, where we are driving alongside our clients. They are now empowered to stop or redirect when necessary. While this can create unrealistic expectations for a silver bullet solution, it becomes an iterative process incorporating testing and confirmation to ensure accuracy, similar to the early days of analytics in e-discovery.

Ari Kaplan: What are the most common challenges your clients are facing in litigation?

Jamie Berry: The common challenge is doing more quickly with less, which has been confirmed for over 25 years in this industry. We are rapidly managing more data, new data types, additional security regulations and complex privacy concerns in an era of instant gratification and tighter timelines. We also seem to perpetually lack sufficient funding and human capital. So we must creatively develop solutions to address these needs by being innovative and appropriately deploying the right technology. You must be ready to fail fast, own those failures and pivot. You have to lead with client service and transparency to avoid any impression of using a mysterious black box approach.

Ari Kaplan: How has leadership in legal shifted?

Jamie Berry: The pandemic represented a turning point in leadership, particularly for legal. With a larger remote workforce, finding, maintaining and managing talent has been challenging. Professionals must complete more work quickly while balancing increased caregiver or child care responsibilities. There are also new disciplines to understand, with more professionals working in legal operations and procurement, who have a more influential role in the buying decision. Indeed, with all the M&A we’ve seen over the past few years, executives must speak a board’s language and be able to market a business, rather than market a service.

Ari Kaplan: What skills are most important for your team members today?

Jamie Berry: The soft skills of working with people, communicating effectively and demonstrating the highest levels of client service are crucial. It is vital to understand how to infuse technology into solutions that address the legal ramifications of a matter. Privacy and data security are also skills one must hone to succeed in this market. From a business development standpoint, being flexible and adapting your approach to the objectives of the procurement team is essential.

Ari Kaplan: How do you see the practice of law evolving?

Jamie Berry: More law firms are running like businesses, so lawyers must understand that they are not just service providers or legal experts. They are business owners and need to know how to run an effective and efficient practice, which can only exist with technology. In my class at the Catholic University of America’s Columbus School of Law, I focus on empowering students to become dynamic litigators and demystifying the use of legal technology to support their clients. Hopefully, we can change the paradigm in legal education to help students hone their practical skills, business acumen and tech awareness.

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Listen to the complete interview at Reinventing Professionals.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change and introduce new technology at his blog and on iTunes.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Biden recalls time he bluffed knowledge of torts case and why he changed his mind about civil-trial work

By Debra Cassens Weiss

March 14, 2024, 2:34 pm CDT

President Joe Biden digressed when answering questions last fall about documents stored at his vice presidential residence to remember his tough torts class at the Syracuse University College of Law and the first job that he got after graduation.

Biden was responding in October to questions by then-special counsel Robert K. Hur, who later concluded that Biden shouldn’t be charged with mishandling classified information because jurors would perceive him as a “well-meaning, elderly man with a poor memory.”

Reuters has the story on Biden’s law school recollection, based on this transcript. Above the Law noted the story.

Biden said he didn’t take law school very seriously. is torts professor, who was “really difficult,” called on Biden to discuss a case that he had never read.

Biden said he nonetheless stood up and spoke for 10 minutes.

“The whole class stood up, started clapping,” Biden said.

The torts professor noted that not a single thing that Biden said was relevant to the case. But he was apparently impressed by Biden’s performance.

“You’ll be a hell of a trial lawyer,” Biden recalled the professor saying.

After law school, Biden took a job with the best-known trial law firm in Delaware handling mostly civil-defense cases. Biden recalled a case involving a “poor kid” who was 23 years old when his jeans caught fire at his worksite. The man had been wearing the wrong pants, and when his jeans caught fire he lost part of his penis and testicles.

Delaware law barred a tort recovery if there was contributory negligence by the plaintiff. Biden was asked to write a motion to dismiss.

He did so, “and son of a b- – – -, it prevailed,” Biden said. “And I looked over at that kid and his wife home with two little kids, and I thought, ‘Son of a b- – – -, I’m in the wrong business. I’m not made for this.’”

He quit the job and became a public defender.

See also:

“Special counsel: No charges for Biden in classified documents probe”

“Trump-appointed US attorney is investigating classified documents found by Biden’s lawyers at office he used”