Legal Commentary

Last week, Judge James T. Giles, senior judge and former chief judge of the United States District Court for the Eastern District of Pennsylvania, resigned from the bench after almost thirty years, to become Of Counsel at a law firm in Philadelphia.

I had the privilege and honor of clerking for Judge Giles from 1998-2000 (the early stages of his stint as chief). Judge Giles did not have the national cache of a SCOTUS Justice, nor was he the sort of judicial rock star that made our long-lost A3G swoon. He was, instead, a "lawyer's judge," exemplifying what makes a good trial-court judge: smart, pragmatic, caring, and quite at ease working in close quarters with lawyers and parties. He also was about the nicest, most humble person you ever will meet holding a position of power. His were the most pleasant chambers to work in--relaxed, friendly, and very thoughtful. Giles frequently would walk into the clerks' area to sit and chat about just about anything.

Best of all, much of what I bring to my civil procedure class on the nuts-and-bolts workings of the pre-trial process I learned from working in his chambers.

Judge Giles was a proud practitioner of what the scholarly literature calls "managerial judging"--the judge taking an active role overseeing the pre-trial process and keeping a watchful eye over how the attorneys conduct themselves and and how the litigation is proceeding. He believed in helping to move cases along and push the parties towards settlement. He might have been (I never asked him specifically) among the group of federal judges who considered it a "failure" of the process when a case went to trial--we had, I think, fewer than ten civil trials in my two years. But he did like to tell parties and lawyers during settlement conferences that, no matter how strong you think your case, a jury trial is coin flip.

I learned about the informality of much of the discovery process and the resolution of discovery disputes. Giles's practice upon receiving either a Motion to Compel Discovery or a Motion for a Protective order often was to get the parties on a telephone conference to hear their competing arguments and to resolve the disputes quickly, to get them back into the exchange of information and the movement of the case towards resolution--whether by settlement, pre-trial motion, or trial. He did not suffer attorney bickering lightly.

I also got a glimpse of the attitude that lower-court judges have towards the prospect of being reversed on appeal. Which is to say, it never really crossed his mind and certainly did not affect his decision making. This is an important insight; students too often believe that trial-court judges are motivated by a desire not to be reversed, as though reversal is a sign that the judge had done something wrong. Giles never thought that way and I doubt other trial-court judges do, either. In fact, being reversed did not necessarily convince him that he had been wrong in any normative or objective sense. This did not free him to blatantly ignore controlling law or to issue wild and unsupportable decisions. But other things constrain judges from doing that. Within the range of what is justifiable under the law, Giles made what he saw as the correct call and was not moved from that view by nothing more than the fact that the Third Circuit disagreed with him.

It is noteworthy that he made a public point of explaining publicly his decision to leave the bench as motivated almost entirely by flagging judicial salaries and the continued failure of Congress to provide a judicial pay raise. He said that, if he thought Chief Justice Roberts's efforts at increasing judicial pay would be successful, he would have stayed on. But, lacking confidence in Congress, he decided it was time to move on. He explained this as his reason when we spoke prior to his announcement, but I was surprised, given his low-key persona, that he would make a public point of it.

The only drawback to having clerked for him? I cannot watch or listen the the music from Annie. But that is a story for another post.