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In Memoriam: Judge Jerry Buchmeyer - N.D. Texas (1979-2009)

By Michael C. Smith

One of Texas' landmark federal judges passed away yesterday - Judge Jerry Buchmeyer, who was a fixture on the Dallas federal court bench for thirty years after being appointed in 1979.  Every lawyer in Texas knew what a "Buchmeyer" was as a result of the judge's popular monthly column of lawyer stories in the Texas Bar Journal (we are still looking for a replacement that can fill his shoes), and Dallas residents knew the judge for his work on cases involving public housing desegregation and city council districts.  Others can say much more about the important work Judge Buchmeyer did on the bench, but I wanted to relate a tiny incident I had with Judge Buchmeyer way back while I was in law school that's always made me smile, and says something about His Honor as a judge, a person, and a mentor.

My last quarter at Baylor Law School I did a judicial internship with U.S. District Judge Walter Smith in Waco in preparation for my forthcoming clerkship with Judge Sam B. Hall, Jr. in Marshall.  So two or three days a week I'd drive downtown, park several blocks away (where the parking was free) and freeze my tail off walking to the courthouse, where I would head to the library tables in chambers to work the motions I'd been assigned.  It's funny to remember now that at the time I not only did not know what a motion was - I didn't even know what to do with one when they handed it to me with the "response".  Someone had to patiently explain to me that it needed something called a "ruling" or an "order" and that I needed to prepare a memo summarizing for Judge Smith the facts and the law that might affect his decision as to what that order might say - I might even have to draft language for such a beast (the order, not Judge Smith) which was more alien to me than translating a letter into Tengwar elvish (I could do that in high school).  Funny, funny, funny in light of what I would be doing for the rest of my career, which would consist not just of writing motions, responses, replies, surreplies (when permitted), and proposed or draft orders, but also opining on an almost hourly basis lately about what an order not yet written about a motion not yet read - in many cases not even written either - would say.

Back to the story.  One week Judge Buchmeyer was trying a criminal case that had been sent back by the Fifth Circuit for the second time, and I sat in on some of the evidence.  During breaks, Judge Buchmeyer sat at the library table with me working some of his motions (which he had pretty well figured out by this point, I suspect).  I still can't remember how this came up, but somehow or other I apparently told Judge Buchmeyer that I thought some of his evidentiary rulings were wrong (I probably said something like "I didn't understand the ruling on..." or at least I hope I did!)  Judge Buchmeyer didn't get angry at having a law student question his rulings.  Instead, he took time before going back on the bench to patiently explain to me that I was actually right on some of the issues surrounding the objections I'd heard, but he then explained the concept of preservation of error and pursuing adverse rulings, and what the record on appeal was going to look like, and taught me a lot about what goes through a trial judge's mind - especially while trying a case for the third time - as far as protecting the record.  He was working to provide as clean a record as he could so that if there was an appeal of this jury's verdict, the complained-of errors by the likely loser would be as minimal as possible to minimize the possibility of a fourth retrial, and to that extent he went out of his way not to give them an adverse ruling to complain.  The case bore him out - the jury found for the prosecution and this time the verdict stuck on appeal. 

I had been taught as a lawyer to pay attention to what the appellate record would look like, but this was the first time that I realized that trial judges did that too, not just avoiding building possible error into the record wherever possible, but crafting their rulings to narrow the issues on appeal so that if reversal was required, it was at least on something that could not be avoided.  This also eliminates the parties' and the appellate court's need to pore over a morass of minor rulings in search of some error that might be reversible.  I'd heard of state court judges that just wouldn't rule, but this was the first time I'd heard of smart judges ruling, but in a way that affirmatively limited the appealable issues.  Of course at this point the judges I had the most familiarity with were my fellow students judging Practice Court trials, where we all took special glee in making the most egregious wrong evidentiary rulings we could just to try to throw each other off.  The only reason you needed to know what the right ruling was was so you could avoid making it, because that would be no fun at all.  (But that's one reason making an offer of proof is second nature the way I was trained - because you had to do it for virtually ever document you tried to admit.  Offered - denied - I'd like to make an offer of proof on that, Your Honor... over, and over and over, with Muldrow or Powell giving the student playing judge a thumbs up and heckling you over your shoulder. So the one thing Practice Court did not train us in was how as judges to make smart rulings that minimized the risk of reversal and - even worse - a retrial).

But I digress again - seeing that bigger picture as Judge Buchmeyer explained it helped me a great deal later as a law clerk and in practice as a lawyer, because it helped me understand why a judge made a particular ruling that otherwise would have been difficult to follow (is that phrased delicately enough?)  For example I read a footnote in a recent Markman ruling by Judge Love and it made me smile because he was doing the same thing Judge Buchmeyer had done in that criminal case so many years ago - he could have walked right through the mine field the party(ies) had laid out, but he found a way to go around it. It wasn't a Buchmeyer, but the think the judge would have smiled at it anyway.

Full post as published by Eastern District of Texas Federal Court Practice on September 22, 2009 (boomark / email).