Faced With Legal Puzzles, Judges Often Turn to Fellow Jurists

By BENJAMIN WEISER

Federal district judges are often described as the quintessential deciders, whether from the bench or in written opinions. But what happens when a difficult question arises, the parties are in sharp disagreement, and the answer is not obvious?

Turns out they often rely on a rarely discussed resource: the jurist-to-jurist lifeline.

Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions or other issues, or been on the receiving end of the game-show-like call for help. “I can tell you that everyone calls colleagues for advice, particularly when we get gnarly jury notes,” said Chief Judge Loretta A. Preska, a member of the bench for more than two decades.

The practice is longstanding: Judge Pierre N. Leval, a district judge for 16 years before he was elevated to the federal appeals court in 1993, said that shortly after he became a trial judge, he asked a colleague, “What do you do when you’re stumped?”

The colleague scribbled four digits on a scrap of paper and handed it to him — it was the phone extension for Judge Edward Weinfeld, a legal legend on the court.

“Put it on your desk in the robing room and call him when you’re stuck. We all do it,” Judge Leval remembers his colleague saying.

In a recent trial in Manhattan, Judge Katherine B. Forrest ruled against the government on the admissibility of a particular document, but after a break, she said she had changed her view.

“I spoke to three colleagues — judges here,” she explained.

The defense lawyer objected, but Judge Forrest indicated that it was important that she get it right, and drawing on the expertise and experience of fellow federal judges was sometimes useful “when one is pressed for time in dealing with these kinds of issues.”

“Indeed, a lot of us call each other,” she said. “People call me a lot, including more senior judges.”On appeals courts, where judges typically rule in groups, collaboration is the rule. But trial judges are seen as solitary actors, the captains of their courtrooms, answerable only to a higher court. That is what makes a trial judge calling another for advice seem unusual to outsiders.

In the recent trial before Judge Forrest, the defendant was Ross W. Ulbricht, who had been accused of running the Silk Road website for drug dealers. After the judge mentioned that she had consulted with three colleagues, Mr. Ulbricht’s lawyer, Joshua L. Dratel, said he disagreed with her approach.

“I understand the value of consulting and all of that, but, I mean, the court ruled — it’s not the Court of Appeals,” Mr. Dratel said. He added, “The court is here.”

In an interview, Mr. Dratel elaborated. “As an advocate,” he said, “you always like to be able to argue your position directly to the decider, and if other people are contributing to the decision, I’m robbed of that opportunity.”

Judge Forrest declined to respond to Mr. Dratel’s comment, as the case is still pending. But speaking generally, she said that when she consults with fellow judges, she tries to seek out different perspectives, “specifically to ensure that I have examined an issue from all angles.”

“I value my colleagues’ input,” she said, adding that in the cases before her, no judge makes a decision “other than me.”

The judges interviewed said they would not seek guidance from an outside source, like a law professor or a jurist on another court. However, a legal ethics professor said making such calls to a judge on the same court about a question of law, for example, is permitted by the judicial conduct rules.

“What the inquiring judge, in my experience, does not do,” said Judge Charles S. Haight Jr., a member of the federal bench for almost 40 years in Manhattan and New Haven, “is to abdicate his or her responsibility as the judge of that case. He or she is the decider.”

Judge Paul G. Gardephe said such calls tend to be made when an issue arises that a judge has not confronted before, perhaps during a trial, and “they need an answer right away.”

“If they had the time,” he said, “they’d research it themselves.”

Judge Ronnie Abrams, a former prosecutor appointed to the bench in 2012, said she had been “at both ends” of such calls. As a judge, she said, “you can’t talk about your job to too many people, and so it’s nice to use the kind of experience and perspective of your colleagues when appropriate.”

“Of course,” Judge Abrams added, “that doesn’t mean that you are going to do what any other judge would do in a given scenario, but when faced with an unusual situation, what’s the harm in asking?”

Judge Richard J. Sullivan recalled that he had consulted with Judge John F. Keenan, a veteran of the federal bench for over three decades, during jury selection in a white-collar case. Given that the district court’s judges were expert in so many different areas of the law, Judge Sullivan said, “Why would a judge not take advantage of that expertise?”

Other judges also mentioned Judge Keenan as someone they had called with questions.

Judge Keenan, in an interview, acknowledged receiving such calls, usually in criminal cases, from colleagues seeking advice. “They are free to ignore it and sometimes do,” he said. He noted that he, too, had made such calls, to judges like Lewis A. Kaplan and Kevin Thomas Duffy, known for their expertise in terrorism cases; William C. Conner, a patent expert who died in 2009; and Judge Haight, who has extensive knowledge in the esoteric field of admiralty law.

Other judges cited in the interviews as among those who received calls were Kimba M. Wood, in the area of antitrust law; and P. Kevin Castel, in commercial law.

Not surprisingly, such consultations can be particularly valuable for new judges. Just days after taking the bench in 2011, Judge Paul A. Engelmayer was assigned a case in which city bus drivers were seeking an injunction to block the police from having them transport arrested Occupy Wall Street demonstrators.

With a hearing imminent and a quick ruling required, Judge Engelmayer called a veteran judge, Jed S. Rakoff. Soon, Judge Engelmayer said, he and his law clerks were gathered around a speakerphone in his chambers, listening as Judge Rakoff explained the process of preparing for such a hearing and getting information from the parties.

Judge Engelmayer said the assistance “hugely affected” how he handled the fast-moving case.

Judge Rakoff, recalling the exchange, said he received about half a dozen such calls each year. “When I was new,” he said, “the more experienced judges helped me, so it was part of what I see as our responsibility.”

The one court member who said he did not make such calls was Judge Gardephe, but for a largely practical reason. He said that when he took the bench, a colleague told him, “If you have a really knotty legal issue and you call three different judges, you’re likely to get three different answers.”

“That actually made a lot of sense to me,” Judge Gardephe said.

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