012: Chief Judge James Holderman on lessons from growing up on a farm, the hardest task he had on the bench, and how he'd change federal litigation

I'm thrilled to share this interview Chief Judge James Holderman (ret.) formerly of the Northern District and now a mediator at JAMS ADR. Externing for Judge Holderman in law school was an inflection point in my legal development, and I feel like I've been riding that wave ever since. It's rare to get a chance to sit with a federal judge and explore lessons from 30 years on the bench. We talked about his upbringing on a farm in Southern Illinois and some of the surprising legacy that's had on his judicial career. We discussed how he wielded authority from the bench, and the hardest task he faced on the bench. Judge Holderman shared some of his prescriptions for improving how federal litigation is conducted.

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Khurram Naik: 00:00

This is Khurram with Khurram's Quorum. I'm very pleased to say that my guest today is Chief Judge James Holderman, formerly of the Northern District Of Illinois and a mediator at JAM's ADR. Judge Holderman is somebody who made a tremendous impact on me when I externed in his chambers in law school, and extraditing for the judge was an inflection point for me, and I feel I've been riding that wave ever since. Here he is.

James Holderman: 00:23

How are you doing today?

Khurram Naik: 00:25

I'm doing great, Chief Judge James Holderman. It's great to see you again.

James Holderman: 00:28

Great to see you.

Khurram Naik: 00:31

Well, you know, I recall when I was your extern that you were very early to Chambers, you like to get an early start. And I know that you grew up on a farm in Southern Illinois.

James Holderman: 00:43

I do.

Khurram Naik: 00:43

So I'm curious, you know, what's the legacy of that experience? You know, I mean, you get up early and I'm sure that was a product of that, but what did it, what are the experiences growing up on a farm? How did that influence you in your later career?

James Holderman: 00:56

Well, first of all, you're absolutely right. We raise livestock and crops and that is my heritage. That's my background. For some reason though, at age 10, I decided I wanted to be a lawyer. I told my father who was a farmer and a successful one, that I wanted to be a lawyer and he was adamantly against that.

James Holderman: 01:25

And I remember exactly where I was and what I was doing on that warm summer day at age 10 when I told him and I never raised the subject to him again. He passed away when I was a teenager and I continued to run the farm because at that point I was already in college and actually going to the University of Illinois on a agriculture scholarship. So I finished my undergraduate career and had talked to my mom after my father passed away about wanting to be a lawyer, which he had never mentioned to her. And she said, that's great. We'll work things out with the farm and you pursue that career.

James Holderman: 02:23

So that's what I did. And so my background is in agriculture. I still love the open setting. I know you can see out my backyard across the, well now it's a golf course, but a beautiful view. And yeah, I think it gave me a discipline that has helped me throughout my career.

James Holderman: 02:50

That you have to do things that help others. Basically, had to make sure the, my dad had a saying, you know, we don't eat until the livestock's fed. And so that's what we were always taking care of our livestock and carry that over to taking care of people.

Khurram Naik: 03:16

Well, so I think that had to be a pretty unusual experience to have on the bench. I imagine a number of your peers didn't have that experience. And so what are the ways you think that distinguished you from other judges on the bench?

James Holderman: 03:31

Well, I actually, I did have an experience once where I had a hearing with regard to farming equipment. I forget what it was, it might have been a patent case, don't recall it, but I remember there was a person who was purported to be an expert on the witness stand. And it was explaining about certain principles and things. And I remember saying to him, Hey, I've done that. That's not how it works.

James Holderman: 04:07

And he was shocked and really had nothing more to say. But yeah, I think again, it's just the background of having to work on the farm just gave me a basis for and a discipline that helped me on the bench. And yeah, on occasion my fellow judges did, they had something involving agriculture. They did consult me and I was happy to provide it because I did have the experience and the knowledge in the area and still love it.

Khurram Naik: 04:52

Well, I ask that because I'm kind of curious how that informs your view of diversity in the bench because there's lots of kinds of diversity. And so I wonder, what are the ways you feel that the bench is diversified and what are the ways you think we could increase the diversification of views or backgrounds or inclinations of people on the bench?

James Holderman: 05:16

Okay, well, every judge that comes to the bench comes with a background of experience that they've had in their lives. And think diversifying the bench is something that we need to do by inspiring and giving confidence to diverse people around the country that yes, you too can become a United States District Judge. You too have a contribution that you can make. And I firmly believe that the more experience and diverse backgrounds we have on the bench, the better off our country is. But again, I think there are people, well, like yourself.

James Holderman: 06:16

I don't want to embarrass you, but like yourself who really have the background, experience and understanding of the law and people that would be an excellent judge. And we just have to encourage and give confidence to those people who desire to do that from diverse backgrounds and experiences and cultures, heritages.

Khurram Naik: 06:45

You started the bench, you became a federal judge, I think when you were 35, am I remembering this right?

James Holderman: 06:56

It was around that, mid-30s. I think I was 37 or 38.

Khurram Naik: 07:01

Okay, that's okay, 37, 38.

James Holderman: 07:03

Had to do the math real quick. But I was young. And in 1985, I had been personally asked by then president Ronald Reagan to take the bench in Chicago. I didn't know president Reagan very well. I had met him a few times.

James Holderman: 07:26

And yeah, I was young but I felt I had enough experience practicing law first as an assistant US attorney and then in private practice where I handled exclusively federal court cases, except some, I did some pro bono in the state court, but my clients were all, had federal court litigation. And that is what assisted me, I think, on the bench. Tried cases, I'd handled appeals, I knew all the judges on the court, they knew me. And yeah, that helped me. But again, going back to diversity, again, we need to encourage people to get to know their judges, where they'd like to serve as judges and to aspire to that if that's their desire.

Khurram Naik: 08:34

On that subject, I think what's so interesting about the judiciary is the relative lack of understanding of the average citizen of the federal judiciary. And these really become acute for me. I don't know about you, but they're really becoming acute around Supreme Court hearings or confirmations. And so just the impressions that people have of district court judges or who are the people that end up on the bench and what are the tasks involved? What does it mean to be a federal judge?

Khurram Naik: 09:09

What are the things that a federal judge does? And I think importantly, what are the things a federal judge doesn't do? I think that's so that the average citizen has pretty little information on. And any given politician, senator or congressperson, of course, the president or his cabinet, these are people that are extensively profiled in the media, but judges have hardly any of that profile. And so do you feel like that we need to do more to have the average we were talking about having lawyers get to know judges better and then aspire to be in those roles and just be better connected?

Khurram Naik: 09:47

And I think maybe we've got even an issue with just our citizenry not understanding enough about our judiciary. So I wonder I know that you've taken public interest and public education seriously. What do you think needs to be done or should be done or could be done?

James Holderman: 10:06

Well, agree with you that certainly at the district court level, local federal court, the judges aren't in the news and their tasks really aren't well known. What federal judges do do is, at least in the federal system, you handle every type of federal case that is filed in your district, civil, criminal and other types of actions. One of the things federal judges do in Chicago is we actually administer the oath to new citizens. People who have immigrated to The United States and have passed all the obligations that are necessary to become a citizen if you're not naturally a citizen having been born here. And so that's a task that people don't know about.

James Holderman: 11:16

And actually it's one of those tasks that I've often said, it's one of the few tasks that I have as a federal judge or had as a federal judge where everybody walks away happy. Because in the typical judging role, in the civil side, you have litigants who have differing views about whatever their dispute is, and you have to apply the law to the facts presented and make a determination. Or preside over a jury trial where you assist the jury by giving them jury instructions on the law, making rulings on the evidence as to what evidence is appropriately before them, and then entering a judgment on the verdict. And I have to say, I'm a strong advocate of the jury system as the last resort if people can't otherwise resolve their differences, civilly. Juries really do try hard to get it right.

James Holderman: 12:40

And I've presided over a couple 100 jury trials and interviewed a lot of jurors. And so assisting jurors in coming to the conclusion that they believe is right is another task of the federal judiciary. On the criminal side, the other major task is handling a criminal docket. Anyone who is charged with a federal crime, and to have it be a federal crime, there has to be some federal jurisdictional link to the activity of the accused. But you not only preside over jury trials, but then after a verdict, if there is a verdict of guilty, then it's your task and your task alone as a federal judge to impose an appropriate sentence.

James Holderman: 13:52

Here we don't have the jurors imposing sentences. There's only one circumstance where the jurors can recommend a sentence, and that is in those crimes where the sentence is the death penalty. And we still have the death penalty in the federal court system. If you kill a federal officer, that, the potential sentence is death. But other crimes that we have, it always is up to the judge as to what sentence to be imposed if a person is found guilty by the jury.

Khurram Naik: 14:39

You know, to run with what you're talking about, you know, I think one thing that I was struck with is, I think a perennial thing that is fascinating about the role of a judge are the departures from normal intuitions about how to handle issues, kind of like you were talking about earlier about how, you know, you know, when you preside over these citizenship ceremonies, everyone walks away happy. That's not usually the case. Know, I recall that, you know, you, you know, when I asked her for you, we had a jury trial, and I recall it was a patent case, and the jury turned a verdict of that the patent was not infringed, but valid. And you said, you know, I'm not surprised by that because it's often the case that, you know, jurors want to give everybody something. So that's Yeah, so that seems to be a very, you know, your point with us, a very natural human intuition and by implication that the judge has learned not to do that.

Khurram Naik: 15:35

So what are some of the ways in which you had to train yourself to depart from those layperson intuitions with how to resolve disputes and do it the way you think a judge needed to apply the law correctly to the facts and deliver that outcome.

James Holderman: 15:51

Well, you're absolutely correct. That is another task of federal judges and all judges, but my experience is only with the federal courts. And you do need to set aside your own personal feelings and to objectively apply the facts to the law and to make a determination as a reasonable jurist, not as Jim Holderman, the human being. Sometimes that's difficult, but there are times when I didn't personally believe in the particular point that was being made, but I knew it was correct under the law and the facts. And so consequently, and I really can't give you an example of that right now, but I know it happened over my career.

James Holderman: 17:04

But you just have to put on your judge thought process and remove yourself, personal beliefs in performing the tasks as a judge. I mean, that's the oath that you take to uphold the constitution and apply the law and facts fairly. And so you have to put aside biases and prejudices that you might otherwise have in your head. First of all, you have to recognize them. Second of all, then you put them aside and make a determination that you believe is appropriate under the law from a reasonable standpoint.

Khurram Naik: 17:53

You know, I'm also thinking about the ways that you refine that over time or other, you know, intuitions about how to make determinations. So I can only imagine when you're fresh to the bench, you approached, you know, decision making in a certain way. Then by the time you left the bench, you saw things a little bit differently. So what's the difference between the judge that first joined the bench and the one that left?

James Holderman: 18:18

All right. Well, it's hard to remember back to those days, but I, yeah, joining the bench, I always had the attitude like everyone, wanted to be a good judge. I wanted to be thought of as a good judge. I wanted to be conscientious. And I worked hard toward that.

James Holderman: 18:45

And actually those concepts and desires never left me. I do think that over time you develop a perspective that assists you from the standpoint that you've been there before. You've handled one of the, you know, this type of case before. You've seen, you have the experience and you become more, I guess, comfortable in your decisions from the standpoint, more confident in your decisions. You're always hoping that it's right.

James Holderman: 19:29

And when there's an appeal, you hope the court of appeals agrees with you that it's right. But I think my desire to always do the best I could do never changed over the thirty years.

Khurram Naik: 19:52

Was there a class of problems, or was there a particular instance what were the kinds of things as a judge and maybe this is in any aspect of your role because I recognize that as the Chief Judge, you had a variety of administrative roles as well, but certainly on the bench and otherwise, what were the hardest kinds and the most difficult problems for you to solve?

James Holderman: 20:19

Well, I've already mentioned the criminal sentencing. I always felt that was because judges have a lot of discretion, federal judges when sentencing an individual, although the sentencing guidelines put parameters on the discretion. But I always felt the hardest, the hardest task I have to try, or had to try to do the right thing was imposing an appropriate sentence for the individual and the crime. And again, that didn't change. I always put a lot of thought into it because you're not sentencing just somebody, you're sentencing this particular individual who has attributes and talents and potential sometimes desire to do the right thing.

James Holderman: 21:34

I remember particularly difficult were the type of federal crimes where the defendant engaged in illegal conduct with children. I mean that just breaks your heart. But to some extent the pedophiles have some mental difficulty that is not well recognized in the law. And I do remember more than once, I mean I sentenced a lawyer who was a pedophile. I sentenced a marine veteran who was a pedophile.

James Holderman: 22:26

I sentenced a professor who was a pedophile. And they actually recognized that they were guilty of what they were charged with. And they all had a desire to, every one of them, which was quite, in my opinion, unusual, every one of them had a desire to try to help medical science figure out what it is that causes them to want very adamantly to engage in that conduct. And so I always did, when I sentenced those folks, I always did say, And your job is to try during the time you serve, because they were usually serving at a facility like the Rochester, Minnesota here in the Central country, Rochester, Minnesota facilities. Your job is to help medical science try to figure out what it is that caused you to do this and help medical science figure out how we can assist other people who have that same difficulty overcome it.

James Holderman: 24:04

And every one of them, those three particular defendants that I've talked about from their backgrounds, every one of them grasped that and said, I would really like to do that because I don't know why I am as I am. And so those were particularly heartbreaking. But because obviously they did damage to well, maybe not physical, but mental damage to the children. And they knew there was something wrong with them. So I actually look forward to the day.

James Holderman: 24:50

Hopefully I'll still be around when our medical science can figure out that problem.

Khurram Naik: 25:00

And so, I mean, you do have to deal with these really painful circumstances that affect you in some level. How do you manage the emotions there? How do you, I mean, what are the ways in which you are able to try to quarantine that to your chambers that's when you take home with you or let it affect you? What are the ways that you handle that?

James Holderman: 25:21

Well, as you know, having interned in my chambers and having had the experience, I do talk things over with my law clerks and my interns. And I try to get different views of a particular decision that I have to make. And especially if it's one that touches your heartstrings. I want to get the objective input to the extent I can with the other people whom I have confidence in who I'm entitled to work with and consult as a federal judge. Obviously you take into account the arguments of the lawyers and their positions, but every lawyer that appears in front of me is an advocate.

James Holderman: 26:18

Every intern and every law clerk that works with me is trying to assist me to make the right decision. And so that's one of the ways I did it. But as a federal judge, you have to follow the law and apply the law fairly. And so there were times when I felt, well especially under the sentencing guidelines, I felt in this particular case there ought to be some exception, either up or down, from the guidelines. But, unfortunately, the Congress of the United States, had imposed these provisions and it was my job to apply the laws that existed at the time.

Khurram Naik: 27:09

Another reason why I got to know you better was because you've been so active in the patent bar. And so it was very clear to me you had a great passion for it and putting a lot of additional effort over and above your responsibilities as a judge. And I was always very fascinated with that because I've been an attorney in private practice and we're incentivized to do certain things. We think about those incentives quite often. And so I was always kind of fascinated with the energy put into this thing that didn't seem to necessarily impact your role as judge.

Khurram Naik: 27:51

You weren't evaluated based on how many patent cases the Northern District Of Illinois litigated. So tell me about how you came to take an interest in that subject matter and why it really meant something to you.

James Holderman: 28:06

Okay, well, I don't know that I've ever publicly explained this, so you're getting this publicly for the first time. But it does go back to my childhood and it does go back to my father and my farm. My father was a very successful farmer and he was an inventor. He would tinker, as he put it, with farm machinery at the time. And he would come up with ideas.

James Holderman: 28:50

He'd make drawings and he'd do things. And I remember at a very young age, about the time I guess I thought about being a lawyer, my father had developed some beneficial mechanisms for harvesting corn, for planting corn in narrower rows to harvesting it so that the stocks which are very, well, they tangle up easily and get the corn picked out of the field without a lot of work. And there was a company, it's now no longer in existence under this name, but there was a company called, International Harvester. It was a big farm implement company at the time. It changed its name to Navistar.

James Holderman: 29:52

And its research facilities, its national research facilities were actually in Burridge, Illinois, which is only a few miles from where I live right now. And, the arrangement that those folks made with my dad was that they would give him brand new equipment every year if he wanted it. And all he had to do was to show them his ideas and allow them to try to put them into practice. Well, my dad didn't particularly care for lawyers. Didn't know anything about the patent laws.

James Holderman: 30:47

Didn't know anything about the, all he cared about was, was trying to do farming in a more successful way and help others. And he thought this was great. And I, I specifically remember him telling me how, how wonderful it was and new equipment would be hauled in and all he had to do was turn over his drawings. Well, you and I both know that had I known or had he known what we now know, they were ripping them off. And, that particular experience, made me think, there really is, the world needs people who understand the intellectual property laws because there are a lot of people out there in the world that don't.

James Holderman: 31:41

And we need to assist those inspired people who come up with ideas to be able to protect them. Now, as I said, my father was successful. I mean, he didn't need to have patents and didn't need to get royalties. We had a nice life, but had I known then what I know now, we had an even nicer life. And so that is what that's kind of the thing that inspired me when I became a lawyer.

James Holderman: 32:17

My father passed away, but I became a lawyer and I started learning about intellectual property. I mean, knew it generally like any other kid growing up, but started to understand the nuances of it. And that, that literally is why I took an interest and became, such a, interested person, interested judge in that area and focused on, on those areas. I, you're getting into the deep dark psychology of, I mean, we've known one another. You and I have known one another for a long time.

James Holderman: 32:59

And you're now getting deep into my inspirations. But again, I guess it goes back to, of course, any human being. You're inspired by your background, your experience and your perspectives. And that is something that I guess we all bring to the bench and bring to the rest of our lives. And so I still enjoy intellectual property.

James Holderman: 33:29

I do a lot of intellectual property mediations. I try to help people resolve their cases and resolve their disputes almost worldwide. And so it's helpful. Yeah, I recently had a mediation where the plaintiff's counsel was in Frankfurt, Germany and the, well the plaintiff clients, the counsel were actually in The United States. And the defendant clients were in Beijing, China.

James Holderman: 34:04

And that's one of the benefits of Zoom. We were able to do that mediation all at one day, all at one time, nobody had to travel and it worked out, but that was an intellectual property matter.

Khurram Naik: 34:20

I want to pick up on on hearing about your experiences mediator shortly, but I'm kind of curious about, you know, with when it comes when I'm thinking about, you know, the experience of your father, and how he would have benefited as you say from work with an IP attorney, and I have, you know, similar stories, you know, that, know, I can I can talk about, but it's it's kind of a long story about, you know,

James Holderman: 34:41

I'd love to hear it at some point?

Khurram Naik: 34:44

Oh, yeah, it's

James Holderman: 34:44

your podcast though.

Khurram Naik: 34:46

Yeah, exactly. You know, I think your story might be a little more interesting, but you know what I think was really interesting to pick up on there is there's always this question about, I think particularly as an IP lawyer, I think any number of us, if we if we value our technical chops, we say to ourselves, is this the best use for our talents? Or should I be on the other side of this table helping, you know, create new inventions? So I'm curious, you know, like, I think my understanding is The US does proportionately have a high number of lawyers compared to other parts of world. I don't know how IP lawyers compares to other parts of the world.

Khurram Naik: 35:22

But it sounds like you were still of the view that or of the view that that's okay. It's okay to have plenty of lawyers. We need plenty of lawyers. So I'm curious about your thoughts on maybe we can talk about just specific with IP. Do we have too many damn IP lawyers or is this a good pool?

Khurram Naik: 35:40

Do we need these people?

James Holderman: 35:42

Well, the one benefit is, as you and I both know, is that with a legal education, you can do just about anything. And your legal education will benefit you because of the way you learn to think, the way you learn to analyze. Yeah, I don't think we have too many lawyers. I frankly think that it is beneficial to have people knowledgeable in the law. And I work with a lot of executives that are lawyers, but don't practice law.

James Holderman: 36:23

But they use that background and experience to assist them in whatever other endeavors they're engaged in. So yeah, my father may have thought there were too many lawyers and I never knew what his experience was that made him feel so negative about lawyers. But because literally after he told me that, No, don't ever be a lawyer, when I was age 10, I never talked to him again about it. But, I think the world needs lawyers. And people need the benefit and assistance of understanding how the law applies to their conduct and the conduct of people that they're with.

James Holderman: 37:17

And the people they do business with, the people they engage in personally. So that everyone's rights are protected and everyone gets the benefit of their own inspirations.

Khurram Naik: 37:36

I can't help but wonder, I think another key point about being a mediator or a judge is this concept of authority. We're in this democratic society, and so, you and I are, you know, are broadly equal in so many ways. But you know, some people are by virtue of this role being judged, you're just tasked with certain responsibilities that have certain power with it, but that, you know, we're not in some autocratic regime, you know, there's limitations on these powers. I think that's something that and some of your peers and benches always consistently emphasize is, you know, federal courts are courses limited jurisdiction what you talked about is the limitations on your power. So a key part of the role, it seems to me, about being a judge is wielding authority and influence.

Khurram Naik: 38:28

And there's just this extra legal component to that, the carrots and sticks involved with that. So I'm really curious to hear more about how you approach authority. What are the ways that made you authoritative on bench? But part of that now I'm wondering is how did that tie into your experiences with your father? Because it sounds like your father said, you remember the day you said this to your father.

James Holderman: 38:49

Oh yeah, no, remember. It was a big moment in my life. I was crushed because I had developed this desire. But I guess everyone who's in a position where you can affect other people's lives needs to be circumspect about how you go about doing that. And no matter where you are, I mean, no matter what country you're in, in my opinion, that's what people in authority should do.

James Holderman: 39:32

They should always question themselves whether doing the right thing for the people who are affected by their decisions. And they should always keep in mind how their decisions do affect people. But you and I were talking casually before we started this, and actually I think the last time we chatted when we weren't recording, that when I left the bench, having had all that power, having been the Chief Judge, having been the the ultimate decision maker on the court, You know, a person who was considered a leader among equals. You know, how that affected me when I left. And a lot of people said, aren't you going to miss the power?

James Holderman: 40:33

And actually I don't. Because with the power comes the responsibility to make sure that you are imposing your decisions in a fair and just way. And now I'm no longer the decision maker. I'm now retired. What I do is try to help people be decision makers.

James Holderman: 40:58

And that's what I enjoy about the mediations. I work with the lawyers, I work with their clients, to try to help them come to the best, them come to the best decisions for themselves and their businesses. I primarily do business mediations, although I have done some employment mediations. I don't do mediations such as family mediations or divorce because I never handled that in the federal courts. Federal courts don't handle any divorce cases.

James Holderman: 41:38

But that I've always thought that's the way authority should be imposed. It has to be done in a fair and just way. And the person with the power needs to constantly question the effect of the power that they're using.

Khurram Naik: 42:03

Is there anything you've learned as a mediator or experienced the mediator that would inform you on the bench, like that you wish you knew then on the bench that you know now?

James Holderman: 42:14

Well, that's a good question. I guess one of the things I've learned and I suspected it on the bench, there always is, or maybe I knew it on the bench, there always are factors in the decision making process of people that aren't necessarily on the surface. And I guess I did know that when I was on the bench, but I couldn't do anything about it. That now it was all I could do is just apply the facts and the law and make a decision and move on to the next case. But now I'm able to actually consult with those people, find, consult with people, find out what are those underlying factors that cause you to feel the way you feel about this particular point.

James Holderman: 43:22

And to some extent that adds to the satisfaction of the job that I'm now allowed to do, which is to be a mediator. And so I guess being I tried to be compassionate when I was on the bench. I tried to use my authority and for the benefit of everyone. But I didn't know those, I suspected, but I didn't know, all of those little factors that go into people's conduct and what causes them to engage in certain conduct. And so I do enjoy finding that out to the extent I can when I'm mediating.

Khurram Naik: 44:11

Is that a product of your workflow? Because as a federal judge, you've got just this massive docket and now as a mediator, you're able to be much more selective about the task you take on. So is that just a product of having more time to get to know the parties and what's Ashley Underline dispute?

James Holderman: 44:28

Yeah, no, you're absolutely right. Our federal district judges across the country are by and large overworked. You can't really devote the time to a particular case that you desire to because there's always another one coming. Or there are a lot coming. And so I think I am able to focus, I'm sitting here at my desk and I've got a number of files on my desk of mediations that are coming up.

James Holderman: 45:03

And I am able to focus on helping those particular people in those particular mediations come to the best conclusion for them. And I wasn't able to do that on the bench because I was the one having to make the decision. And, you know, wasn't always sure it was the best, but I was confident that I had done my best to apply the law fairly and to find the facts fairly.

Khurram Naik: 45:40

With the mediation practice that you have now, is there anything that says you, or do you have an opinion on what are the kinds of matters that are more susceptible to resolution for mediation versus litigation?

James Holderman: 46:00

Well, of course now I feel that everybody ought to, in the civil area, in civil cases, ought to try mediation first because frankly there are, there's a lack of communication among disputants. One of the things I do with my, with every mediation is I have an initial conversation, be it by phone or now sometimes virtually, among the parties and the lawyers. And I ask each, each lawyer to briefly and concisely and as objectively as possible explain their client's position. And often I have, heard that that's the first time that the other side has really heard a synopsis of why they believe they're right. And in fact, a lot of times, well not a lot, but several times over the last five years since I've been mediating privately, that when the client hears, Oh, that's why they think that way, it helps them, see the nature of the dispute and understand the nature of the dispute and and resolve it more, more quickly.

James Holderman: 47:38

That that one moment of, an objective explanation, as objective as it can be, without oratory, never happens in litigation. You file a complaint and then there's a motion to dismiss and it's ruled on either granted or denied. Then there's an answer filed. Then you just start the discovery process and you get documents and you never really sit down and go, what's the real problem here? And a lot of times clients don't understand that if they really knew what the other side's concern was, we could get this worked out.

James Holderman: 48:30

We don't want you to have that concern because here's our concern. And, so that, that, I guess that's another satisfying aspect of, of mediation. And, and I, and I think it's a service that we provide. So I guess now I am more inclined to consider litigation as the last resort and trials as the last resort.

Khurram Naik: 48:56

Are there things that you think, generally speaking, commercial entities, the kinds of entities that have before your mediation, what are the ways they can short circuit these disputes? Because it sounds like you're saying there's, a lot of times it's the first time these parties have heard the other person's point of view. So if you were to make a prescription, just generally speaking for a company, because I think companies are going to maybe be repeat litigants. What are the kinds of practices they can put in place that can avoid mediation or avoiding litigation?

James Holderman: 49:31

Yeah, well, that's a very good question because I do believe there should be in the litigation process an early moment of mediation or settlement conference where, to some extent toward the end of my career on the bench, I tried to do this, where you kind of take the legal mumbo jumbo out of it and you get down to the real nub of the problem and try to help each side see the nub of the problem to the extent that they can recognize it and focus on it. So I would actually, I guess if I had my druthers of being able to change the litigation process, I would say there should be an attempt or there should be a feature of litigation that requires early on a mechanism of communication that would allow each side to more objectively see the other side's position. Because the process that we have now, again, at least in federal court, you know, the complaint, the answer, the discovery, motion for summary judgment. There really is no built in mechanism. Of course we have settlement conferences and that sort of thing, but that's usually later on in the existence of the litigation.

Khurram Naik: 51:18

You know, it seems to me that in your role as mediator, you know, you were discussing, you know, some of the ways in which you enjoy being able to get more into understanding the clients and understanding some of the nuance around the basis of their positions. It seems to me there's maybe a little more creativity involved in this role. So is there some resolution or type of solution you crafted that you're particularly proud of?

James Holderman: 51:48

Well, I do believe that just generally helping people come to a resolution and it's their resolution, it's not mine, come to a resolution that works for them. I guess is the only thing that makes me proud and gives me satisfaction. When, when you actually, because everybody, when you reach a settlement, everybody's a little unhappy about it, simply because you had to make a compromise. But then when you sit back and evaluate the compromise that you made, you realize that there are a lot of benefits that you're deriving from that compromise that going forward will benefit you and your life and your business. And to some extent, that's what I try to emphasize to people, to litigation, is a backward looking thing.

James Holderman: 53:05

You always have to go back and what happened then, and what happened then? Mediation is a forward looking approach, where what can we do to resolve this so we can move on for the mutual benefit of the disputants? And so, that's why I say litigation's the last resort. If you can't otherwise work it out, then that's when you have to litigate and try cases. And don't get me wrong, I love being a judge, as you know.

James Holderman: 53:44

I love the opportunity to assist people in that way. And frankly, I feel honored to have the opportunity and love having the opportunity that I have now to help people in the way that I'm helping people now.

Khurram Naik: 54:01

What's surprised the most about your work as a mediator? You probably had some conceptions about it going in, what surprised you?

James Holderman: 54:15

I guess the fact that there were so, there are so many underlying factors that didn't come to the surface. That's what I referred to that earlier. I knew there were some, but I didn't realize there were so many that people have in mind. And every dispute is different. And every individual's different.

James Holderman: 54:41

Just as I said, every individual comes to the bench, every judge comes to the bench with a different background and experience than every other judge. But every other, every individual comes through a mediation with a background and experience that's different from every other person in the mediation process. And so I guess the number of factors that you need to take into account and to assist people in recognizing. It's another thing that I guess I enjoy about the mediations where I'm able to help people understand what those underlying factors are that they may not really have in their conscious mind. But subconsciously, if they focus on them, are there to, and sometimes are barriers that don't allow them to resolve the matters more quickly than they otherwise would.

Khurram Naik: 55:49

I'm just very fascinated with, you know, the shift from, you know, judge, you know, working for the public interest to private citizen, you know, you know, working as a mediator. And so I'm just kind of curious about, you know, in this time, this phase of your career, you know, like what else you're considering or what are other, you know, things you're thinking about life? And I know that you've been friends with Scott Schroe for a long time, who's obviously a very well known novelist. And so I am curious, do you miss writing opinions enough that you think you might write some sort of literature of your own?

James Holderman: 56:25

I don't know. Scott's a very, he is a good friend. In fact, Scott took my place at my law firm when I went on the bench. He was a former assistant US attorney and had similar experiences to mine in the US attorney's office and and was a good fit for my law firm who needed a a person with that type of background and experience. And so Scott and I have been friends for a long time.

James Holderman: 57:01

He is a very talented individual and a wonderful person. You know, sometimes people who are famous like him are a little more difficult on a personal level. No, I don't think I will engage in the writing of fiction. I enjoy too much working with the real life of people and helping them. But he is a tremendous novelist and I recommend every one of his books.

James Holderman: 57:45

Think I've read every one of his books and he is, you know, he's a wonderful individual.

Khurram Naik: 57:53

You know, I'm kind of curious. You've seen so many people on the bench, you know, from other parts of the country, you know, lawyers from different parts of the country. Now as mediators, see people from different parts of the country. I feel like there's I feel that I've only practiced law in Chicago and Boston. And but I got to tell you that, you know, I feel like the affinity of the Association of our Cultures is very strong in Chicago.

Khurram Naik: 58:18

And I took it for granted that it'd be everywhere in Boston. And in Chicago, there's there's three organizations I was a part of the Linen, of course, is one of them one of the ones. Yeah. And also the Chicago committee and then also the South Asian Bar Association. So all three of those are very important to me.

Khurram Naik: 58:37

And so I feel now I have some context and appreciation for how very strong the bar association culture is in Chicago. So I'm curious, you know, what is your do you have any views on the different cultures of attorneys across the country? How do what's the difference between Chicago attorneys? How are they operate differently versus other attorneys in the country?

James Holderman: 59:00

Well, I do agree with you that frankly, in Chicago, the lawyers do enjoy socializing with one another and working on legal problems that face the the country or face the bar in general as opposed to in individual cases. You mentioned the linen of court and the South Asian bar. I've got a lot of friends obviously in both and you were one of the early members of the linen of court. And of course that inn was created because a young lawyer had come to know Richard Lynn when she was in Washington DC, and just found him to be a very nice man, and felt that it would be appropriate for an Inn of Court to be named after him. Got his permission and convinced the rest of us in Chicago.

James Holderman: 01:00:22

I had met Richard Lin, but he wasn't weren't particularly close at the time. He was on the the Federal Circuit, a judge on the Court of Appeals for the Federal Circuit, and I was a district judge. And I'd I sat on the Court of Appeals for the Federal Circuit a couple of times, at the request of the Chief Judge. And, But now that I've come to know him and come to see all the lawyers in Chicago who have come to know him, it really is a, it's enhanced the cohesiveness of the lawyers in Chicago. And Richard Lin was so, guess, thankful and inspired by the beginning of the Richard Lin in Chicago, that now he's developed a whole organization within the organization of the Lin's Inn of Court, the Lin Alliance of Intellectual Property, Inn's of Court.

James Holderman: 01:01:45

And frankly, I of course have an affinity for the lawyers in the intellectual property area. But I think they've come to know around the country that they have an affinity for one another. And I really think it has inspired for the benefit of other parts of the country a communication and I guess an assistance of one another that has existed in Chicago for a number of years. And you had the experience and we miss you in Chicago. We have Don't to

Khurram Naik: 01:02:32

write me off. I might, I might come back.

James Holderman: 01:02:34

Oh, that's great. Love to have you. Anytime.

Khurram Naik: 01:02:38

You know, you said that, you know, you said something interesting about litigation being necessarily backwards looking and mediation being forward looking. So I'm kind of curious for yourself, what are you looking forward to? What are you looking forward to this year and the coming years? Tell me about where you're heading.

James Holderman: 01:02:54

Well, I'm getting at that point in my life where I'm just getting to the point of continuing to enjoy the things I enjoy. And I really have no aspirations to go beyond what I'm doing now other than to watch and assist my grandkids growing up. I've got a number of grandchildren and they are a great inspiration for me because of the joy and the enthusiasm that they have for their lives. And I guess that's where I am in my life, where I get great pleasure in watching them grow, watching them develop, watching them become the human beings and the people that will benefit society in years to come.

Khurram Naik: 01:03:53

Well, I gotta tell you, Chief, you've been a big inspiration for myself and you're someone that I've admired for a long time. And so I've always been grateful for time with you. I always feel like I learned so much and really appreciate you taking the time to sit down and share your experiences with me.

James Holderman: 01:04:09

Well, it's my pleasure because the feeling's mutual. You know, one of the nice benefits of getting to know someone well is that you really do learn a lot from everybody. And you with your experiences and your approach to life and to the profession and your tremendous skills as a lawyer. I find great inspiration from that myself. And so it really has been a pleasure.

James Holderman: 01:04:43

I thank you very much for allowing me to chat with you as we otherwise would other than on this podcast. This was kinda like how we talk to one another when

Khurram Naik: 01:04:54

we're talking. Right.

James Holderman: 01:04:56

So thank you.

Khurram Naik: 01:04:58

Thanks, Jay.