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Federal judges are fascinating because they resolve high stakes matters addressing a wide swath of issues touching on every aspect of society. And because of their limited resources and the 30-some new cases they get a month in a busy court like the Northern District of Illinois, they have to become experts at building systems for making decisions.
So I'm happy that I got to spend two hours with Judge Matthew Kennelly to learn about what he does. We explored the tools he's developed for helping bring disputes to resolution in the 22 years he's been on the bench.
We talked about some of the interesting implications of lifetime tenure, how he's changed how he manages his docket, new ideas and how they spread among judges, what's difficult about sentencing, and the tradeoffs between standardization and individual attention on cases.
Judges are used to people laughing at their jokes, but Judge Kennelly is actually funny (although I won't repeat that he's a "pillar of our community" because apparently he's heard that enough times). I hope you'll enjoy this rare in-depth conversation.
Deep conversations with underrated lawyers.
This is Horum with Horum's Quorum. My guest today is Judge Matthew Cannelley of the Northern District Of Illinois. I'm fascinated by federal judges because they're maybe the last true generalists, and I think there's a lot any of us can learn from how they make high stakes decisions on a wide range of issues. It's rare to get an opportunity to sit with a federal judge, particularly one with as busy a docket as Judge Cannelley, so I hope you'll value these two hours as much as I do. Judge Cannelley, it's great to see you again.
Khurram Naik:Thanks for taking the time to talk.
Judge Matthew Kennelly:Happy to be here.
Khurram Naik:So we talked last time about a few things around your docket and some of the interesting implications from all the kinds of matters that you manage. I thought we'd begin by talking about your intake of cases. Think you said you're getting these days about 30 new cases a month. Tell us about that flow. So you get these cases in and then how is it that you are processing these cases and moving them along and help us get a glimpse about that part of your role.
Judge Matthew Kennelly:Sure. So to start off with, federal district judges are basically what I would call the last of the generalists. We get all types of cases, both civil and criminal, of varying degrees of complexity. As you said, I get about 30 new civil cases per month, give or take a little bit. Couple or three new criminal cases per month.
Judge Matthew Kennelly:So it it I'm right about in the average in our court I have at any given time about 80 civil cases and about 40 or 45 criminal cases at the moment. So what that means is that if I essentially do nothing in a month, my caseload goes up by 35. If I do a lot in a month, it might go down a little bit but I still get those 35 new cases in. And I I sometimes in talking to interns and law clerks analogize the job to that old I Love Lucy episode with Lucy and Ethel working on the candy line, the candy assembly line with the candies coming down and the candies keep coming down at a constant rate and they're spending a lot of time on decorating them. Eventually they get behind very quickly and the candies start falling off the line and they're putting them in their hats and their pockets.
Judge Matthew Kennelly:So that line is my new case is on a given month or day or week and I have to keep the line moving. And so when when a case comes in, particularly on the civil side, I have to get a handle on it and basically at a fairly early stage, get it organized and get the case moving so that it doesn't languish. Most lawyers are overly burdened. They have too much to do and not enough time to do it in. They're always juggling.
Judge Matthew Kennelly:And so I need to make sure that, you know, any given case that's assigned to me stays at least on their radar screen somewhere and doesn't because if I don't do that, it'll fall off the radar screen and it'll just sit. And in the long run that's not good for the legal system because it's not good for cases to languish. They should get decided in one way or ruled on, settled, or resolved in one way or another.
Khurram Naik:I think part of understanding that process, I think it's important to understand all the parts involved, your brain work. So when you say that you're getting a handle on these simple cases, you've been a sense of what some of the early work that needs to be done on these, how much of that is based on substantive determinations of the subject matter? Say, okay, well, is class action that means this, or this is a personal injury that means that. And then I'm trying to get a sense of how much that is determinations you've made based on your experience and understanding the subject matter.
Judge Matthew Kennelly:Yeah, case management is really that just proves that I didn't turn off that stupid phone. Okay, so I'm just gonna decline it. Sorry about that. I'll answer that question.
Khurram Naik:Do you
Judge Matthew Kennelly:want me to just pretend like it just started answering?
Khurram Naik:No. We we we we you can just go with this.
Judge Matthew Kennelly:Okay. So yeah, I lost my train of thought. Okay. So basically what happens is a case management is there's no form book that says this is what you do. I mean, there's a there's a set of rules called the rules of civil procedure that set these sort of very general outlines that basically say, get the case organized, and that's essentially what they say.
Judge Matthew Kennelly:And so it's it's up to a judge like me to decide how that happens, and I do that largely based on my experience both in practicing law, you know, for eighteen years before I became a judge and in working as a judge for twenty plus years to get a sense of how quickly, slowly, medium speed, whatever a case should progress and how like how it's gonna get, how complicated it's gonna get at what stage. Now some of that is gonna be dependent upon things generated by the parties. So for example, a lawsuit may come in and the parties may come in and say we're already talking about settling the case. And I can just kind of send it off one way. Or a lawsuit may come in and the defendant, the party who's been sued, may you know file some sort of a complicated motion saying the case lacks merit.
Judge Matthew Kennelly:You should throw it out right now. They may deal with it in another way. The majority of cases fall somewhere in between those two and I basically have to decide based on my experience and and obviously with a lot of input from the parties, you know, to organize things and keep them moving. You know, the judge is of all the people who are involved in the case, so the lawyers, the litigants, and the judge, the judge is the most ignorant, knows the least about the case. I know about case management and I can kind of figure out where to what particular pigeonhole or category or stovepipe to put the particular case in, but I'm not gonna know exactly how complicated or uncomplicated it is until I spend time talking to the parties about it and hearing from them about how complicated it is.
Judge Matthew Kennelly:So what I I typically do and I and and I do this not because I'm a nice guy, but but but because I think it's the most efficient way to do it given what I just said is I'll ask the parties to propose a schedule to me. How long do they think it's gonna what do they think they have to do and how long do think it's gonna take to do it? And I sort of measure that against a rough yardstick of my experience and determine whether it whether I think it's reasonable or not. Overwhelming majority cases I do and then I direct them to follow the schedule that they've already agreed to at the outset.
Khurram Naik:And so if counsel, if you say that, you know, the judges are going be least knowledgeable of the case, I think, correspondingly, I think the corollary to that is that the attorneys are the least have the least information or understanding about how the judge thinks about case management. So I think that's a pretty interesting to follow-up on. And so I think maybe one way approaching that is what case management technique have you developed over time that you're most proud of or you found the most effective?
Judge Matthew Kennelly:Well, yeah, I'm not, you know, I don't think I have a trophy case that has my best case management techniques. Bet it be kind of a boring trophy case. But, you know, what I what I would say is I I I listening is a is a pretty important thing. I mean, I litigated both civil and criminal cases for quite a number of years before I became a judge. And I appeared in front of judges who had every case be handled the same way.
Judge Matthew Kennelly:You come in, your trial dates in a hundred and eighty days or your trial dates in a year or I'm not gonna give you a trial date. Just go off and do whatever you want to do. And and without really any care or even interest in in what the parties had to say. And and that's certainly a way of doing it. Basically, what that's called is elbowing your way to the front of the line.
Judge Matthew Kennelly:It's basically like saying to the lawyer, I don't care about the rest of your cases, the rest of your life. My case goes at the top of the list. You're just gonna deal with my case. And you know, that's a way of doing it and and you know, I guess for those judges and I appeared in front of judges like that over the years, that works. And I and I'm not gonna say that there aren't points in a case where I tell people, look, I know you're asking for more time, but I'm not going to give it to you.
Judge Matthew Kennelly:But I think as a general as a general technique, that's kind of the opposite of how it ought to work Because we we we have to under the rules make sure things get decided not just in a speedy way but in a just way. And if basically the basically your your technique is to tell everybody you gotta floor it from day one. That's not likely to result in a justice resolution. It'll result in a resolution for sure, and it definitely worked for those judges I appeared in front of. All those cases go away before the ninety day trial date.
Judge Matthew Kennelly:But were they going away in a way that they should have gone away? You know, probably not. So so what what I do is, like I say, I try to listen. I I try to impose some sort of, you know, reasonableness boundaries on what I listen to. In other words, if somebody comes in on a routine, you know, breach of contract case and says it's going to take us six years to conduct discovery, unless they tell me that the witnesses are all in, you know, Dubai and Taiwan and Germany and, you know, The Philippines and various other places, I'm gonna say, no, folks, I'm sorry.
Judge Matthew Kennelly:That's just not gonna work. If they do something that's within a range of reasonableness, which is a range, I'm probably gonna go along with it. And then in terms of techniques, one of the things that I do think it's important to do and you know the the Chief Justice or current Chief Justice has emphasized what the rules of civil procedure have kind of always said, at least in my career, that the judge should be an active manager. That it's important for judge to be aware of and actively manage their cases. I ask questions.
Judge Matthew Kennelly:If somebody if somebody, you know, wants more than the average amount of time, I ask them why. I don't just routinely agree to it. I get them to justify it. I bring I try to bring up the topic of voluntary resolution settlement mediation at regular intervals. One of the reasons for that is that, you know, I observed in the course of practicing that many lawyers believe that if you're the first person to bring up settlement, it's a sign of weakness.
Judge Matthew Kennelly:I happen to think that's false and probably demonstrably false, but people believe it so you got to deal with it. And you know, before I started in this job, I spent a lot of time talking to to other judges in our district and I had been in front of most of those judges and observed their techniques and still remember one of them saying that, you know, you you you one of the ways you take the issue of of reluctance to discuss settlement off the table is you just tell people. You're gonna make a settlement proposal by x. You're gonna make you respond to it by y. And then people can go back to their clients and the client doesn't say, wait a second, wait a second, is a sign of weakness.
Judge Matthew Kennelly:No, they can say, no, the judge has ordered us to do this and so now we're gonna do it. So I try to do that. I think that's reasonably effective. I didn't invent that. That comes from a magistrate judge named Mort Denlow.
Judge Matthew Kennelly:That's at least who I got it from. Now retired and doing private judging. You know, other things the other things I try to do if there's you know, without getting too far into the weeds of civil procedure, it's pretty common, for example, in civil litigation for the defendant to file a motion saying that the complaint is deficient on its face. It's what we call in federal court a 12 b six motion. You know, back in the in the mid aughts, the Supreme Court case said in a case called Bell Atlantic versus Twombly that district judges ought to be able to just figure that out.
Judge Matthew Kennelly:It's pretty easy. Right? Now, I I will say that none of the judges on the Supreme Court who said that had ever been a district judge, I think, at that point in time. But that's not altogether wrong. I think it's a certain level it's true.
Judge Matthew Kennelly:And so what I try to do on those types of motions is instead of saying, okay, everything's gonna grind to a halt and we're gonna brief that motion for two months and then I'm gonna sit on it for a while and decide it. I'll look at the motion. I'll look at the complaint when they first come in and I'll say to the plaintiff, if I think the complaint's weak, I'll say, look, you got some problems here. You might want to go back and if you can, you know, ethically do it, you you you might wanna think about amending your complaint. If I think that if I think that the motion asking to throw out the complaint, dismiss the complaint is meritless, I don't make people respond to it.
Judge Matthew Kennelly:So I don't routinely set briefing schedules on those kinds of things. One of the other things I do again and I didn't learn this myself, I adopted it from other judges around here, but I certainly observed it in practice is that, you know, it's a pretty common thing in civil litigation for there to be disputes about discovery. Who can get what from whom and when and how broad it can be and how narrow and so on. And I appeared in front of judges over the years in this district and other districts who, when there was a discovery dispute, they'd set a briefing schedule, like just as a matter of routine. So you'd brief the motion for just the discovery motion for a month and the judge would rule on it a couple weeks later and guess what would happen during those six weeks in the rest of the case?
Judge Matthew Kennelly:Nothing. Everything stops because everybody's waiting for the judge to decide. Why does that need to happen that way? So when when I did my rounds before I, you know, after I got confirmed and before I started the job, one of the sort of recurring themes I would hear from judges who did their own discovery supervision is don't let people brief discovery motions. Do your unless they're really complicated.
Judge Matthew Kennelly:Do your best when they come in. Rule on it right then. Your argument, rule on it. And so I've done that. I mean, it's very rare for me.
Judge Matthew Kennelly:There's a pandemic exception to this like everything, but very rare for me to set a briefing schedule on a discovery dispute. Typically what will happen, so nowadays we're the old days people were regularly coming into court and so they'd have to say, here's my discovery dispute. I'm gonna come in front of the judge in three days and I'd get it resolved when they came in. Now it doesn't happen that way and so what I typically do is I say, okay, you filed your discovery request or motion on such and such a day. We're gonna have a phone conference a week from today and I'm gonna decide it then.
Judge Matthew Kennelly:If you wanna file something before that, ahead and file it. Otherwise, just be prepared to talk about it on the phone. I rule on it then and then we've lost four or five days in the case, not six weeks. I mean, I was in cases where, you know, what would happen is that the judge would set a schedule on discovery motion. I and the other litigants would bring everything to a halt and then the thing would get lost in the shuffle and four months later you're still waiting for a decision and meantime nothing's happened in the case.
Judge Matthew Kennelly:In any given lawsuit, delay can be in somebody's interest, but just in terms of the overall system, it's not and it shouldn't be that way.
Khurram Naik:Yeah, I think another thing about that is my understanding is that all things considered, delay means more money to the lawyers.
Judge Matthew Kennelly:There's no question.
Khurram Naik:Yeah.
Judge Matthew Kennelly:At least when both sides are paying paying paying as they go. That's definitely true. It benefits the lawyers. And, you know, as as the judge that I clerked for used to say, there's no maybe no higher and better use to which a person can put their money than the payment of a reasonable attorney's fee. And so with a with a half smile on my face, I sort of agree with that.
Judge Matthew Kennelly:But that doesn't mean I have to I have to bump the the tab up.
Khurram Naik:So I wonder if in talking about these different styles to approaching how to handle the scariest disputes, I'm kind of interested in the style aspect of that. Do you feel like there are trends in jurisprudence where maybe there's a trend? Is there a trend, for instance, like if you say in the Northern District there is this more underscoring of the active management approach to the judge's docket? Do you feel like those are things that come and go in, say, several
Judge Matthew Kennelly:No, I think I would say over time, the trend has been one direction and that is with more active management. Now that's not a straight graph going up. There's some bumpy lines on it and different judges that that trend line is moving at different rates. You know, in our we have a very large district, you know, twenty twenty one active district judges, eight, nine, 10 senior judges at various levels of activity, you know, a dozen plus magistrate judges, all of whom are supervising cases. So anytime you got 40 people, 40 more or less life tenured people doing something, you're gonna have at least 40 different ways of doing it.
Judge Matthew Kennelly:But my sense is that of the judges who do manage their own cases, and I of course have the option to defer that to a magistrate judge, but of the judges who do manage their own cases, I think the trend is over the course of the forty years I've been a lawyer and a judge has been more management, not less.
Khurram Naik:To what do you attribute that trend?
Judge Matthew Kennelly:So it's a function of the rules of civil procedure that when I started, I'm holding my fingers up being about an inch thick and now they're about two and a half inches thick. So more rules means more more stuff to, you know, talk about. But it's it's really just I think just a general trend in federal litigation promoted by, you know, by currently the chief justice and completely correctly, I think. And by the judicial education we get, what we, you know, refer to in the federal system as baby judges school. It just that's the way you're trained.
Judge Matthew Kennelly:And and as lawyers come through the system, of course, you know, most people who most but not all people who become federal judges have been federal litigators. And that's what they're used to. And you tend to kind of do what you've seen. And so I think it just increases over time. And then what what people many, not all, probably most but not all judges tend to realize is that it's more work for you but it it pays off.
Judge Matthew Kennelly:The the payoff is the following. So again, I could just do nothing on my cases. Just wait for the motions to come in and rule on them. Just let nature take its course. And there are judges who operate that way and they have nice, you know, that it's it's an they have nice lives just like I have a nice life.
Judge Matthew Kennelly:Okay? It's a way of doing things. But here's the difference. I have 280 cases. That judge has 450.
Judge Matthew Kennelly:And any given 10 cases is gonna generate a certain number of things that I'm gonna have to spend a lot of time on, like what we call a summary judgment motion or a motion to dismiss or class certification or maybe a trial or something like that. And if I have 450 cases, if one out of every if two out of every 10 cases generates a motion for summary judgment, that's gonna be a much bigger number than if I have a 100 than if I have 250. So the payoff in the management is you're putting more into the front end but you're having less work on the back end and less, you know, less cases get resolved if they're paid attention to on their own. You know, 97% of civil cases, if not more, are gonna settle at some point. What you can do as a judge perhaps is kind of move the needle in terms of what point they get settled at.
Judge Matthew Kennelly:Is it sooner or is it later? You know, is it five years after the case gets filed or is it two and a half years after the case gets filed or one year after the case gets filed? And the more actively you manage it, the more likely it is that that number is going to get shortened. And I think, again, in a given case, that might be detrimental to one side or another, but from an overall system standpoint, it's good for the system.
Khurram Naik:Do you have any intuitions about, you know, the satisfaction parties have with settlement at those different phases? So how much more satisfied are parties with That's early
Judge Matthew Kennelly:a great question and I, you know, I don't know that I've never seen a study on it. Probably could be studied. I will tell you that my my sense is is that is that when cases get settled, people tend to be satisfied with it. Doesn't mean happy, means satisfied. In other words, it's it's a it's a cost benefit thing.
Judge Matthew Kennelly:It's it's it's a better resolution than you know, what would happen if you didn't make the resolution. And so my guess is is that the satisfaction level probably doesn't vary a whole lot. And I mean, you look at it from a sort of a holistic standpoint, if I'm a if I'm a, you know, let's say a defendant who's paying hourly fees and I settle the case after paying my lawyer $50,000 as opposed to after paying my lawyer $250,000, I ought to be happier. At least if the settlement's the same, of course, you'll never know, but but that that that ought to be beneficial to me. And the same is true on the other side, at least if the plaintiff is paying an hourly fee.
Judge Matthew Kennelly:If it's a contingent fee, it's a different story.
Khurram Naik:To pick up, I think in a couple different ways, you alluded to the different styles the different judges have, And you're all of, you're all equals in that way. You all can just trade ideas, but you're all left to manage your own chambers in your own way. And you tied it to the fact of lifetime tenure, because then just over the course of someone's multi decade career, they can continue to go in some direction and really refine some process, and that could be maybe significantly different than another judge. So to me, that's an interesting consequence of lifetime tenure that I hadn't considered before. What are some of the other consequences of lifetime tenure?
Khurram Naik:Because that's a very specific We don't really have that in a lot of other aspects of society. It's a very unique thing, and by virtue of you being a generalist, you see so much about how else things are done. So what are some of the non obvious implications or consequences of lifetime tenure?
Judge Matthew Kennelly:Well, okay, it's easier to start with the obvious ones. The obvious one is that since I don't have to run for retention or election or whatever, I don't have I don't have to be concerned that if I issue a decision that, you know, a columnist for the Tribune thinks is an outrage that I'm going to lose my job. And who knows whether I'd do that anyway, but the fact that you don't have it doesn't even cross your radar screen, I think is a significant thing in terms of, you know, how judges operate, that you're not constantly having to think about looking over your shoulder and trying to figure out what might be gaining on you. So that's the big thing. I mean, the other thing is is that is that I mean, this is suggested by your question.
Judge Matthew Kennelly:It gives you an opportunity to try out different things. I don't have to do the same thing now that I did ten years ago. Now, so the obvious follow-up is gonna be, okay, what are you doing differently? I'm I'm leading my I'm leading with my chin on this one. I, you know, there's there's it all ends up being nuance and, you know, one of the the sort of the the countervailing factor for this thing that gives you kind of the liberty to do different things and try out something and see if it works and so on.
Judge Matthew Kennelly:The countervailing factor is, I don't know, you call it the cocoon factor or what some people call robe it is or whatever, and that is that, you know, you're in this little tiny world. You don't get any you don't get any honest feedback from anybody. It's always, you know, uproarious laughter when you say something that's even mildly funny. It's always, oh, you're such a wonderful pillar of the community and you know, it's by the grace of God, you get put on the bench or whatever. And there's sort of this temptation if if you if you if you're not into kind of a self examination mode to kind of figure, hey, everything's great.
Judge Matthew Kennelly:Nobody complains. Everything must be going fine. And, you know, one of the for for me at least, one of the things that I you constantly kind of have to elbow yourself on I think is, you know, what am I doing that could be done differently and that might successfully be done differently? And the problem of course is is that, you know, we're in this we're in this system here. We're in our own little world.
Judge Matthew Kennelly:It's like I said there's 40 judges. It's four it's like 40 different little law firms. We're all in the same building, but it's not like, you know, when I was with my old law firm which was six lawyers and I just, you know, show up in the next person's office and say, hey, what's going on? I mean, that doesn't happen around here all that much. But, you know, we do have opportunities to to get together and you hear how other people are doing things differently and I mean, so recently for example, I mean, I've always or at least more or less always managed civil cases in kind of the active way that I described.
Judge Matthew Kennelly:I had not done that in criminal cases. You know, it's criminal cases are different in a lot of ways but the lawyers tend to be more on the ball in terms of keeping things moving and that you tend not to have to manage them as much or at least that was my theory. And recently, this probably goes back to a little bit before the pandemic. I was on a committee because we were trying to deal with some issues having to do with staffing of the Marshals Service and which is constantly understaffed and how we could deal with that. One of the things that came out of that is that our court was having a lot more in person appearances on sort of routine status hearings and criminal cases in virtually every place else in the country.
Judge Matthew Kennelly:And I think that's probably just sort of a a carryover for what we do in civil cases. That's what we had always done in civil cases. But when you've got defendants in custody in criminal cases, anytime one person comes to court, there have to be two marshals with plus the people in the lockup and so on. So we had all we had these big staffing problems. And one of the things that a judge who's, you know, happens to be on my floor but has been a judge, you know, maybe fifteen twelve, fifteen years less than me was doing is he was doing the same kind of thing in his criminal cases that all of us had been doing in our civil cases, which is getting kind of frequent and detailed reports from the lawyers about, you know, what discovery have been produced, when's it due, when are you gonna get it to him, and just constantly nudging them.
Judge Matthew Kennelly:Not making the parties come in for that, but making them file kind of reports. If somebody says, well, judge, you know, the prosecutor says, well, we're gonna get the defendant a draft of a plea agreement, in the near future, you'd say, fine. You got two weeks to do that. Whereas most of us, myself included, really weren't doing that. And so it I think that's I'm gonna try that out.
Judge Matthew Kennelly:And so I kinda changed how I was dealing with criminal cases kind of as a result of that. And and, you know, does it have an effect? Everything affects things in in some marginal way, but I think it does and it and it, you know, it keeps people a little bit more on the ball. They they don't get the sense that all I gotta do is kinda show up and say, oh, we need more time and the judge judge is just gonna send me away. And and so, you know, bringing it back to your question, which I've gotten pretty far away from here, you know, you you do have the opportunity if you if you keep your ears open and you talk and you listen to to see how other people are doing things and maybe say, hey, I'm not going to completely change my procedure.
Judge Matthew Kennelly:Want to try that out and see how it works. And if it works, then you can maybe change how you're doing things on a regular basis.
Khurram Naik:So it sounds like there are some ideas like this one that just seem it's unlikely someone's going to say that isn't better. It just seems so likely to result in better case management. And so it seems like there's at least some no brainers. And what are the obstacles you see to more widespread adoption of that? Because it sounds like, I feel like in the conversation we've had recently, I think case management has been a key thing that you've underscored about your role.
Khurram Naik:Maybe it's because it's the least appreciated part of your role, but it also seems like it's very much top of mind and very just day to day blocking and tackling. And so I'm just kind of curious about the ways in which you'd like to make that process easier for yourself and other judges. And, you know, I think there's also maybe a benefit to the public and maybe a more consistent application of the Constitution of Justice. So what are your thoughts on that needing to be implemented, know, the best processes?
Judge Matthew Kennelly:The last thing that you said, consistency, mean, I think is a is a big and probably unsolvable issue on a on a large scale. I mean, are smaller districts, smaller federal district courts, let's say the two or three or four judge districts, where what they have done is they've basically developed kind of templates. Your case is a category one case or it's a category two or category three and category four and depending upon what category it is, you're gonna have this much amount of time to do X. You're gonna have this much amount of time to do Y. You're gonna have this much amount of time to do Z.
Judge Matthew Kennelly:And yeah, all those dates are subject to modification by the judge but the notion is your case is categorized. It's gonna go into a pile. And so in those districts, everything's very consistent. Just like when when we had mandatory sentencing guidelines. Now this is not a great analogy.
Judge Matthew Kennelly:There's a big difference between somebody how somebody how somebody manages a civil case and how many years they have to go to prison. Okay? Obviously. But back when we had mandatory sentencing guidelines, at a certain level, sentencing became easy. You count up the points, you get a range, you sentence at the bottom of the range, the top of the range, the middle.
Judge Matthew Kennelly:It's not a big range. You're done. It's very easy. All you have to do is calculate the points correctly. And so there's consistency.
Judge Matthew Kennelly:And in the law and in the system of justice, there's this constant tension between consistency and individual attention and treating people as individuals and treating cases as individuals. And over time, that pendulum tends to go back and forth. So and and I'm I'm gonna I'm gonna keep up with the sentencing analogy here for a moment. So the Congress passed in the mid eighties something called the Sentencing Reform Act, is the thing that instituted what we call the federal sentencing guidelines. And the two primary sponsors of that legislation were Ted Kennedy and Strom Thurmond.
Judge Matthew Kennelly:And they they both and and what it did so before that sentencing was completely discretionary. You might look at the same case. Let's say a an income tax evasion case and judge a might give the same defendant probation and judge b might give him ten years in prison or whatever the maximum is for income tax evasion. And no review. It's it was all considered discretionary unless the judge had considered something some inappropriate factor.
Judge Matthew Kennelly:It's that the sentence is what it is. So so Senator Thurmond, I think and I may be getting history a little bit off here, but Senator Thurmond was more interested in the consistency part of it. Why is Judge X given somebody ten years and Judge Y given somebody probation? And Senator Kennedy was perhaps more interested in that, but also interested more interested in in some of the kind of outliers on the high end. So each one was kind of interested in the outliers on the other end and the result of it was the sentencing guidelines, which for twenty years were, you know, close to twenty years were considered mandatory.
Judge Matthew Kennelly:You couldn't vary from whatever that little range was except in very unusual circumstances. And so we had this system which was you knew. You're gonna get the same sentence in the Western District Of Oklahoma as you were gonna get in the District Of Rhode Island in front of two different judges for the same crime. On the other hand, nobody was going to consider whether, you know, you maybe had sick parents at home that you were taking care of or that you, you know, you were the sole support for your four children or, you know, you had some sort of previously undiscovered mental disorder that was causing you to commit the crimes, none of that was going to be considered. Or whether on the other hand, you were somebody who, you know, was just kind of a bad dude and anytime you got out of prison was gonna do something to get back in.
Judge Matthew Kennelly:And so we had we adopted consistency and we sacrificed individual attention. That changed in the mid two thousand's. Supreme Court decided that the sentencing guidelines were advisory and mandatory and so now you have to consider them as kind of goalpost, guidepost, starting point, not an ending point. And and of course now we we as a result of that over the last fifteen years, we we're now back to quite a bit of variation among judges within districts and among districts in terms of how similar cases get sentenced. And you know, there's probably less concern about that nowadays, but you every now and then you see somebody say, is there something wrong with this?
Judge Matthew Kennelly:I mean, why does somebody get, you know, probation for this drug crime in the Eastern District Of New York and in, you know, the District Of Kansas, they get twenty years for pretty much the same crime. Doesn't make any sense. And I get that. And so it the the pendulum kinda tends to swing back and forth on these things. And and I guess to try to to to try to bring this back home, I mean, I could we could have a system here in our district where you would know coming in that your case gets filed here, your summary judgment motion, your motion asking the judge to throw out the case or whatever is gonna be due in eighteen months, period.
Judge Matthew Kennelly:And that would be completely predictable and completely consistent and it would also be massively stupid because it wouldn't take account of the differences that might make one case or another different from that. So in the law in the law, we have this constant tension. Now I I will say that our court, you know, to a certain extent gets criticized for the variation in the way different judges handle cases. I just chalk that up to humanity. You know, we we used to have in the old days, you know, personal injury lawyers for example on both sides would say, hey wait a second, why should I be in federal court?
Judge Matthew Kennelly:If I'm in state court, I know my case is gonna get it's gonna get above the line as they used to call it in the Circuit Court of Cook County, you know, three years and six months after the case gets filed. In federal court, if I get assigned to Judge So and So, I'm gonna get a trial date in nine months. If I get assigned to Judge So and So, who knows if I'm gonna get a trial date before he retires? And and that those are problems and but it's it's kind of inherent, you know, you you anytime anytime you you try to smooth out the the variations in the graph, you're gonna leave some significant number of cases being treated in a way that people will consider unfair. And any time you give more or less complete discretion to the person who's handling them, you're gonna get the criticism completely legitimate that there's no predictability.
Judge Matthew Kennelly:And so what do I what do I try to do? I mean, on my own, I'm I can't deal with everybody else's universe. I do try to deal with my own universe. I try to deal with treat similar cases in a similar way as best I can, understanding that there's no two two things that are exactly alike. I do worry.
Judge Matthew Kennelly:I mean, from I keep going back to sentencing but it's the most serious thing we do around here. I I I do worry about those things. I mean, I sentence a person in one case to have such and such a sentence and then a case comes along six months later that seems kind of the same and I think, I mean, I should impose a greater sentence here but wait a second, six months ago I gave this other sentence. I mean, can I really justify that to myself? And you know, nobody on the Court of Appeals is gonna come back and say, hey, Kennelly, you sentenced so and so six months ago to a lower sentence, you know, explain the differences here.
Judge Matthew Kennelly:I mean, that doesn't work that way but I think about it and I think judges do think about those kinds of things and hopefully try to, you know, maintain some sort of internal consistency at least on their own over over time.
Khurram Naik:You know, that's interesting. You know, I don't think enough about the criminal docket. Don't know enough about it. So, you know, because, you know, my litigation has always been civil. And so something that I think is maybe desirable in a civil context with less desirable in a criminal context is some aspect of unpredictability, I think.
Khurram Naik:I think that's part of I've always kind of felt that tacit to two partisan or litigation is saying, we understand there is a riskiness to this, and we are hoping both of us facing this risk will drive us to resolution settlement. And so it's kind of curious to think about the ways in which in some ways that unpredictability is a feature not a bug.
Judge Matthew Kennelly:Oh, it's a feature for sure. It's a feature and it's a feature in everything. I mean, as a lawyer, I handled both civil and criminal cases and I mean, I'm, you know, the calculus is different and the consequences are different in the two types of cases, but the same the same uncertainty plays out in both. I mean, in the civil case, you know, you know, you could get a quote unquote runaway jury or you might get a judge who just has a complete antipathy to a particular type of case and how's that going to affect things in a criminal case, you know, you don't know if you go to trial, is the judge going to think that this is a way worse case than you think it is now? Is it going to be treated differently if you plea, if you make a deal and so on and so forth?
Judge Matthew Kennelly:Yeah, it's it's a feature. It may also be a bug, but it's a feature.
Khurram Naik:Well, going back to what you're saying, I think part of the asset management that we're talking about and the benefits of consistency, you know, and the desire to be able to listen to parties and take in circumstances. I think a key part of that and some of the youth referenced a couple of times now is listening. And I think I have a naive intuition about what listening is, but I imagine over time you've developed better techniques for listening and facilitating communication with your forthright communication. So what are some of those techniques? Well,
Judge Matthew Kennelly:part of it, part of it filter. I mean, there's a lot of similarity between, particularly in the civil side, between case management and parenting, okay? So and you know, combination it's of carrots and sticks and you have to listen but not necessarily be swayed by, you know, somebody whining about this or that. And there's every bit as much whining by lawyers in civil cases as there is by four and five year olds. Not that I'm comparing the two necessarily, but yes, it does.
Judge Matthew Kennelly:At some level, you kind of think about it that way. So, you know, I I can't say that I have a, you know, a template that I kind of try to, you know, fit everything into, but I I guess what I what I what I try to convey to people is look, if you if you pursue your case and what you have to do on your side in a diligent way, then you're way more likely to get leeway from me when you need more time or have a problem or need an exception or something like that. If on the other hand, what you do is basically just ignore everything until a week or two weeks before the deadline runs is about to run and then you engage in this flurry of activity and then you come in and say, oh, judge, you know, we just found out something and and it it turns out that the reason you just found it out, even though you've had ten months to find it out, you didn't do anything until three weeks ago, I'm probably gonna have a little bit less leeway with you and and now and that might sound, oh jeez, that's not really fair, but I try to I try to try to convey that to people kind of from the get go that that don't wait until the last minute.
Judge Matthew Kennelly:I mean that that goes back to the thing I said about lawyers juggling. You know, every lawyer's got many many many deadlines that he or she has to deal with and you're always constantly juggling and what I think as a judge I want to convey to people is that I get that. I get that you're gonna have to juggle. I get that you're not gonna be able to necessarily comply with deadlines, but I I want you to treat the case as something that's significant and not something that just sits on the back burner until there's, you know, until the until you start getting the warnings from Outlook saying you've got, you know, meeting day after tomorrow or something.
Khurram Naik:So I think part of what you're talking about is, I think it also ties into, you know, what you're saying in the context of the lifetime tenure and some of the ways in which that insulates you, of course, from, a lot of scrutiny or pressures of certain kinds. But then there's a concern about rhovitis. And so listening seems to be a key part of that as well. So what are the things that help you understand the considerations that law firms go through or clients go through? Like, what are the ways that you are staying grounded in getting good understanding of what's actually going on behind the scenes here?
Judge Matthew Kennelly:Okay. So so part of it is, I mean, I've been a judge for going on twenty two years now, but it doesn't seem like that long and I and I did have a pretty very active both civil and criminal practice. And so part of what I'm doing is trying to make sure that I don't lose touch with that and the understanding of the pressures and the multiple pressures that that I was under at the time when I was a practicing lawyer and and that I that I take account of that when I'm, you know, managing a case. So that's that's certainly that's certainly part of it. Part of it comes from, you know, I mean you can you can kind of sit around here in an ivory tower or the equivalent, particularly now since there's nobody around and just kind of, you know, go about your business and not pay any attention to anything.
Judge Matthew Kennelly:I try to stay involved in, you know, groups of lawyers, bar groups or what we call ends of court, things like that, where you're talking to lawyers regularly and again, they're not necessarily going to come up to you and say, hey, judge, you know, the way you manage that case really stunk. That's not going to happen, but you do learn things by staying up on, you know, what's going on in practice about what happens. One big example for me is that, you know, I became a judge in 1999 and electronic discovery as we all know it now pretty much didn't exist at that point. The digital revolution was just kinda starting to happen. It really hadn't affected litigation all that much and I had no idea.
Judge Matthew Kennelly:I mean, I I never had to deal with, you know, drafting search terms and protocols for ESI and things like that. And so, you know, what I've tried to do is thankfully the, you know, we we have opportunities for continuing judicial education and not just that, but being on panels with lawyers and it, you know, when you you get asked by the local bar association to be on a panel about electronic discovery, I mean, me, it's important not to just sit up there and pontificate, to kind of listen to what people are saying because you learn a lot from that. And so I think that's part of it. Part of it comes and less about the practice ends, about what's kind of happening in the world comes from the fact if you've if you have you know, we have we're all allowed to hire law clerks, basically lawyers who, you know, assist us and if you have what we call term law clerks, in other words, there's new people coming in every year, every couple of years, you know, that that helps you kind of stay grounded in what's going on. And then a lot of it you just learn from cases.
Judge Matthew Kennelly:I mean, I, you know, I've a lot of what I know about electronic discovery, I know from kind of learning it the hard way and having disputes presented to me and having to figure out what they're all about and listening to the lawyers and how does this work and how does that work and so on.
Khurram Naik:So one thing you mentioned is, you know, this you've mentioned a couple of different ways is wanting is getting honest feedback. Of course, you know, lawyers are all just gonna laugh your jokes and, you know, not exactly walk up to you in the bed.
Judge Matthew Kennelly:By the way, I am actually quite funny. So, you know, so not all that laugh is fake.
Khurram Naik:You did have I I have to say there is well, there was one linen dinner where you made remarks and it was very funny. It was objectively funny. So I I have to give you that.
Judge Matthew Kennelly:So like one out of 100 times I was actually funny. Okay, yay.
Khurram Naik:Well, I still remember the joke, and I don't remember, I mean, how many other lawyers have given the talk, and I remember the joke, so that I think that Okay,
Judge Matthew Kennelly:that's good.
Khurram Naik:Well, let's talk about that because I'm interested to know what kind of feedback do you wish you had? I mean, you know, like
Judge Matthew Kennelly:Yeah, so that's really tough question. I mean, it's gonna be really hard to get anything good, know? So every every now and then this or that publication does evaluations of judges. So what does that end up being? And it, you know, it's kind of depends on how they go about doing it.
Judge Matthew Kennelly:So we we've had an organization here locally that at various points in time has reviewed judges both on the state and federal level. Not all that often because it's a massive undertaking. If you're gonna do it so I mean, obviously you can, you know, there's I suppose somewhere, although I don't go looking for it, the judicial equivalent of Yelp reviews probably, you know, judgeisajerk.com or something like that where people can kind of post all their gripes. But that's that's largely going to be all the negative information and who knows how much of it is tainted by the fact that the person lost a case and they're just ticked off about that. So what you what you what you'd ideally would get would be some, you know, sort of more broader sampling of done in a fairly systematic way that told judges, you know, what's what do people think of your case management style and not just graded on a scale of one that tangents in, tend to tell you anything like what's good, what's bad, what's indifferent.
Judge Matthew Kennelly:How does, you know, how are you when you preside over trials? Do people think they're being treated fairly even if they lose? I mean, there's ways that people in kind of high level professions can get evaluated, but there's really not anybody out there doing it on any kind of a regular basis and honestly because it's hard. It's hard to do and it's if you're going to do it right, it's really hard to do it right and and and not have it just be, you know, a series of gripe sessions or on the other hand, a series of, you know, suck up sessions. So but that's, you know, ten years ago, twelve years ago, a local bar association did a you know, it's every twenty five years or whether we need to or not review of federal judges and there I found some helpful stuff in there.
Judge Matthew Kennelly:Not not some of it not all that great and and I, you know, try to take it to heart and some of which you, you know, Zebra can't change their stripes, but but yeah, it's just not happening. It's just not happening. And we don't have we we don't have and and again, probably because it would be so difficult to do. We don't have like you would have at a big corporation, somebody who's doing kind of a regular review of you. Like, how who would do that and how would they do it?
Judge Matthew Kennelly:I have no idea. I mean, somebody could figure it out but how to do it but it would have to be its own kind of apparatus and anything that anything that comes from the government costs costs money and somebody's got to pay for it and there's no real desire to pay for it. Now, you know, as a federal judiciary, we get criticized from time to time not having kind of an ombudsman or something like that. But that tends to be about this sort of really egregious type of situations like, you know, people making racist, gender biased comments, you know, corruption quasi corruption, things like that, and kind of the outlier cases. And every time you have one of those, somebody says there needs to be kind of an inspector general or something like that.
Judge Matthew Kennelly:But we have I don't know what the number is, like 500 federal district judges around the country. I mean, how are you going to evaluate all those people? It's really tough. Who's going to do it? How are they going to put together the states?
Judge Matthew Kennelly:It would have to be a significant number of people, kind of, that would be their whole job. And we just don't have it.
Khurram Naik:Well, let's say in a fancy land and you've drafted many local rules. So let's say you drafted a local rule requiring counsel to give feedback, you know, at the end of resolution of litigation. So what are what's a couple questions that you would put in there?
Judge Matthew Kennelly:Yeah, mean I'm just thinking, I'm just thinking about the last thing I got time I got something from, from, you could do the hotels.com kind of smiley face, sad face. No. How how was that experience? That's not helpful at all. I mean, I you know, you ask a question like that and I suppose I could think of something and I and I'm a lawyer, I immediately start thinking about why this would be a waste of time because, you know, if if the experience was okay or, you know, or even positive, I mean, how many people are gonna do that if the experience is negative?
Judge Matthew Kennelly:I mean, you know, by definition in my job, half the people go away dissatisfied or if I have to decide a case and how would you know whether, you know, the fact that a person lost is tainting their decision, tainting their evaluation. I'm not sure. That's why I say it would have to be done on a systematic basis by somebody who knows how to, you know, filter evaluations and try to control for, you know, dissatisfaction with the outcome in evaluating the process because the process is what you want to get evaluated on. I mean, I get I get evaluated on whether my decisions are good or not by the Court of Appeals, I guess. You know, it's a small number of percentage, small percentage of cases that are appealed, that's an evaluation of sorts.
Judge Matthew Kennelly:That's not what I'm talking about. I'm talking about the process. I was The short answer is I don't know.
Khurram Naik:Well, yeah, my take on that is, let's say I resolved the procedural hurdles to getting compliance and now we're just at the low where you can get compliance and you can get the information. I suppose we could focus on that.
Judge Matthew Kennelly:Yeah, so what I'd want to know is feel did you had a chance to make your point? Did you feel that the judge listened to your point? Did you feel that the judge took your views into account? Not did you like the outcome? I mean, like I say, the appellate process works for that.
Judge Matthew Kennelly:Were you know, is there things that the judge did that you think were, you know, counterproductive things that the judge did that you thought were particularly productive or helpful? But, you know, a series of a series of the kinds of things you get on your average, you know, web interview where it's like rate this on a scale of one to 10. Mean, that's just it's not great. You need something you need specific stuff. I mean, I I'll just tell you, like when I like I said before I, you know, after I got appointed and before I started, I went around and talked to maybe a dozen judges in our district about, you know, their techniques for this, that and the next thing.
Judge Matthew Kennelly:You know, how do you pick a jury? How do you do this? How do you do that? I gotta tell you with with maybe one or two exceptions. First of they all had different ways of doing things and they all said and the lawyers love the way I do it.
Judge Matthew Kennelly:And I and I and I had to hold my tongue on about half of them because I wanted to say, no, don't. Because I knew we didn't. But I'm not gonna say that and nobody else did either and that's why they all thought that everything was copacetic. And so that's what you get. And and so, you know, but getting the opposite of that is like, you know, this person's an ogre, you know, which is what which is what web interviews or web reviews, you know, often descend into.
Judge Matthew Kennelly:Not again, not helpful. I mean, at some very general level. So you need you need something detailed about, you know, what was what was did you feel like you get got treated fairly? Did you feel like you had an opportunity to make your points? Did you feel like the judge actually considered your points?
Judge Matthew Kennelly:If not, why don't you think that? What do you think could have been done differently? What what was good? And I mean, you could design if you were, you know, good at this kind of thing, which I'm not. You could design a survey that would work, I think, at some level.
Judge Matthew Kennelly:Then you'd have to get people to do it. You know, it had to be a sufficient compliance rate among the lawyers and the litigants so that you're not just getting kind of the outliers on one side or another, the people that think that you walk on water and the people that think that you, you know, you walk around with a pitchfork or something.
Khurram Naik:Yeah, that makes a lot of sense. Yes, I've seen, I think, some of the kinds of websites you're describing, and yeah, unfortunately with this pool of information, I think it tends to be a lot of disgruntled people currently is the, you know, the closest thing of rating. And it's not unique to judges. There's other
Judge Matthew Kennelly:What Oh,
Khurram Naik:you see, like, you know, I think, doctors, I feel like if you Google So, it, it's mostly negative yeah, I understand that, but I think that is an interesting problem to be solved. Well, going back to you were talking earlier about
Judge Matthew Kennelly:I would say, let me just say, the logical this is not going to get done by we're the government, okay? This isn't going get done by the government itself. There's no there's no appetite or money to the resources into it. If it's gonna get done, it's gonna get done by bar associations. That's who does this kind of thing.
Judge Matthew Kennelly:And the problem with it is it's a massive if you're in a place that's got big courts like we do, it's a massive undertaking. It could be very much a full time job and the resources that you'd have to commit to it are are if you're gonna do it right in a way that's helpful. In other words, you're not just trying to, you know, you're not just trying to, you know, to wave the red flag in front of the people you hate. You're trying to give people helpful feedback, it's a very massive undertaking, think. Or at least could be.
Judge Matthew Kennelly:Sorry for interrupting.
Khurram Naik:No, that's a good point. So going back, we started this conversation talking about how judges are this kind of last bastion of the generalists. And I'm interested in that for a variety of reasons. That's what it seems to me, and that's something that's fascinating about the role. You know, maybe some CEOs, if Jeff Bezos and your company touched on so many aspects of society that you are seeing a wide swath of society through that role as well.
Khurram Naik:But I think something that interests me about the role is, you know, we talked in, I think, in context of being this generalist, and the variety of the docket that you have, there's some there's some that necessarily entails case management, then the case management techniques you have. Maybe we can go into a little more substantively. So by virtue of being this generalist, you have to get an understanding of so many different kinds of subject matter. So what are the patterns of digesting this information and, you know, honing in on the things that matter, you know, because it's inconceivable that you're spending, you know, every you know, you're trying to master every single detail and nuance, there has to be some things that are naturally more important than others and things that you've learned to hone in on. So can we talk more about some of the techniques underlying the substantive aspect of drinking from this fire hose and processing it?
Judge Matthew Kennelly:Yeah, I mean, and I wish I could reduce that to a formula, but I really can't. I mean, you know, it's one of the things that if you if you as a lawyer, as a practicing lawyer, if you have any kind of a complex practice at all, one of the things you learn is that you have to be able to filter out what's important from what's unimportant. I mean, if you're working for a, you know, a thousand lawyer firm that only defends Fortune 50 companies, then maybe you don't have to have that filter because you can do everything for everybody all the time because they'll pay for it. But in most legal practices, you have to develop you have to develop the skill of being able to figure out what's important. And honestly, you don't always get it And and I think that's true even now.
Judge Matthew Kennelly:So you're right. I mean, drinking from a fire hose is probably a pretty good analogy for what I do. And, you know, today I might be dealing with a complicated patent dispute about, you know, some sort of chemical formula. And tomorrow I may be dealing with a question of whether a person who's charged with a crime and mentally ill is competent to stand trial. And the next day I might be dealing with some complicated question of insurance law and interpreting, you know, very complicated language and insurance policies and and it's like you're going from one thing to another and and for for I think for most of us in this job, that's kind of the great thing about the job.
Judge Matthew Kennelly:You're not doing anything the same way twice. But, you know, you know, jack of all trades probably means master of none. And and and and that's and I mean that's certainly true. I wish I could I wish I could reduce this to some kind of a formula because it's pretty it's a pretty common question. I mean, I speak to law school classes and things like that.
Judge Matthew Kennelly:Yes, you get asked a similar question and I mean, it's it's it's the same way people kind of figure out other things. You you read and you listen and you read and you listen and you think and you set it aside and you come back and and, you know, if you have to issue a decision, you start writing a decision. If it doesn't work, you set it aside or you go the other way. And and and and I I'd like to say, I mean, I I one of my I clerked for a federal district judge like me, you know, forty years ago and one of the one of my co clerks was somebody who he was completely brilliant and and the way he would, you know, go about deciding and drafting decisions, it it was all somehow getting done in his head and then he just start making outlines on a paper and it would flow from when the next like, I think I'm a reasonably intelligent person. I can never do that.
Judge Matthew Kennelly:I mean for me it's it's almost like trial and error. And and what I actually tell people, I mean I speak to a class regularly of judicial interns in law school. So these are law students usually first or second year who are working for a judge and kind of acting as junior law clerks and helping the judge decide cases and write memos. You know, I tell them, you know, what's gonna happen when you're working on an assignment is is you're gonna read one side's submission. You're gonna say, wow, that sounds really persuasive.
Judge Matthew Kennelly:Then you're gonna read the other side's submission. You're gonna say, wow, that sounds really persuasive. Then you're gonna read the first side's response to that and you're gonna say, wow, that sounds really persuasive. Now, what the hell do I do? And and the first thing I tell people is don't panic because that happens to me too and I've been a lawyer for forty years and a judge for twenty one.
Judge Matthew Kennelly:It's normal. It's supposed to work that way. If it was that easy to decide, I wouldn't need to have you work on it. And and and so, you know, you you work through those problems the same way people work through problems in life. As you you think about it, you listen, you you try to work it out, you see if the resolution works, if it doesn't work, you try something else.
Judge Matthew Kennelly:The the and and in the long run, I mean, I tell people is look, this is this is what you do if if if all else fails. I mean, you've sat there and you've reasoned it out and you've outlined and you've tried to go from point a to point b to point c to point d and you still get to a point where you've gotta decide between two competing visions of of how something should come out and you can't figure out how to do it. So I say, there's a do what I do. That because that happens to me. It happened to me, you know, two days ago, alright, on something.
Judge Matthew Kennelly:And like I say, I'm in my forty first year as a lawyer. So I say, okay, I can't figure this out. And I've I've reached the point now where I just can't keep tossing it around in my mind. I gotta make a decision. So I'm gonna say, okay.
Judge Matthew Kennelly:This side wins. I'm gonna start writing it that way. And I start writing the decision. And if you're if you're thinking about it in a logical way and if you're is the math that your math teachers used to say, if you're showing your work and you're you're you're and you're going through all the steps, if that's the wrong decision, at some point you're gonna hit a wall and you're gonna know that you hit the wall and you're gonna say, you know what? Let's it should come out the other way.
Judge Matthew Kennelly:And if you never hit that wall, it probably means it's the right way. And one way or another, the process of just having to commit it to writing is gonna help you decide it. And that's what I have found. And so I have to deal with You're right. I mean, I deal with stuff that I I don't know I don't know the first thing about, you know, what's I'm dealing with a patent case right now about MRI technology.
Judge Matthew Kennelly:All I know about MRI technology is sitting in one of those machines and having it be real loud. That's all I know about it. And so, you know, I'm not a I'm not a neurologist. I'm not a person who designs MRI machines. I'm not a radiologist.
Judge Matthew Kennelly:I'm not any of those things. But I I one of the things I've learned over the course of forty years of practicing in areas that I I didn't know the underlying subject matter in being a judge is that, you know, you just do your best to at at some level, everything is there's a logic to everything and you just kinda gotta figure out where it is. And you read as much as you can and you learn as much as you can and you try to make sure that you, hope that you know as much as anybody in the room or at least have read as much as anybody in the room and do your best and hope that it and try to make it make sense from a common sense standpoint. And if it does, there's a good chance it's gonna be right.
Khurram Naik:Is there a division of labor or I don't know if this is the way you think about it, but I wonder if you see difference between understanding the case and then deciding the case. And if you do, is one more challenging than the other?
Judge Matthew Kennelly:Yeah. I'm not sure that there's a there's a real dichotomy between the two things because you have to have some understanding to be able to decide it. I mean, because the the if if you don't, it's basically amounts to a 10 meglorophyte exercise in coin flipping, which you really don't want to do. And, you know, I don't think I think everybody tries not to do. So you have to have some level of understanding.
Judge Matthew Kennelly:And and so I I think they really kind of go hand in hand. It's
Khurram Naik:Yeah, I guess what I meant is those are probably two phases and I wondered if you felt, you know,
Judge Matthew Kennelly:first all,
Khurram Naik:then you decided. I wondered if you felt like one phase is more difficult than the other.
Judge Matthew Kennelly:Yeah, so I guess I get my pushback would be I'm not sure they're distinct phases. I mean, think for me, I think they kinda happen at the same time and that may go back to the I love Lucy analogy. They kinda have to. I don't I don't have the luxury of saying, okay, I'm gonna put everything aside for the next two weeks and just do this. I mean, guess I do that in a sense when I'm like, have a trial going on, but even then, there's before and after and and I have to do other stuff during the lunch break and things like that.
Judge Matthew Kennelly:I really don't have the luxury of saying, okay, there's only one problem in the world. I'm gonna deal with it. Except for little chunks of time. I mean, when I'm working on this, I'm not working on that obviously, but I don't have I don't think and this is one of the differences I think between what trial judges do and what appellate level judges do is you do not generally speaking, you don't have the either the resources or the time given the relative volumes to spend overwhelming amounts of time on a single thing. On the other hand, except when you have to, which is, you know, the exception that proves the rule.
Judge Matthew Kennelly:So every now and then you get something, and I had one last spring where it's a kind of this is more important than anything else you're doing. You gotta drop everything and just work on this for two weeks. And I mean, that happens every now and then, but it's relatively rare and at my level at least.
Khurram Naik:Yeah, I think, you know, from my time, externing for two judges in law school and my experience in court, I have an understanding that a huge part of a failed judge's job is being efficient with time like you're describing. And I think now talking about a more enhanced understanding of what that looks like. But with it, I think it's kind of interesting because I think so few people associate government with efficiency. But I think that this is one of the rules where government has to be very efficient and is by convention or standard. So how I'm interested in applications.
Khurram Naik:So how do you decide? I think at some level, we understand that, you know, this patent case you're describing will require some level of more time spent understanding and deciding than say, very simple, you know, slip case. And so how, you know, can you give us some sense of the heuristics you're using to allocate your time and energy to the cases based on, say, their their complexity or yeah.
Judge Matthew Kennelly:Yeah, I want to think about that for a second. So so, you know, there's there's a bunch of different kind of tracks going at the same time. So I've got stuff that's being the parties are submitting written submissions on that has to be decided. I've got kind of the day to day stuff that I'm kind of deciding at the snap of a finger at the blink of an eye, which tends to be the sort of less consequential things that they're not terribly complicated. I've got the longer term stuff that, you know, I know that this case has a trial date in such and such a date, so whatever I'm gonna do before that has to happen before that unless I want to move the trial date.
Judge Matthew Kennelly:And then I'm gonna have then I have this trial and there's all this stuff that I'm gonna have to do around the trial. So it's it's for for me and, you know, I guess I consider myself organized but maybe in a disorganized way. If that makes any sense that that I it's, you know, to a certain extent, it's it's not that the squeaky wheel gets the grease. It's that the wheel that is about to go over the cliff has got to get the grease or has got to get the break. I'm just mixing my metaphors there.
Judge Matthew Kennelly:And and so and so a lot of the kind of sorting out of what I'm gonna work on on a given day on a given day is kinda depend on what's the most pressing at the moment. So I'm like I'm like anybody else. I may go into work with a list of eight things that I really wanna get those eight things done today. And if I get two of them done, I think, thank you. My god.
Judge Matthew Kennelly:This was a massive win. I got two two out of my eight things done. How did I decide it was those two? Well, okay. So today, for example, I I had a hearing on a case that had to happen at a certain amount of time at a certain point in time and yeah, I'm the judge so I could move the hearing but I didn't and so there were certain stuff that I had to get done before this morning so I could be ready for that hearing.
Judge Matthew Kennelly:There's, you know, I've got, you know, next week, I'm on a committee that's I've gotta give a presentation at a meeting and so, you know, before that meeting, which I don't have any control over, it's scheduling. I'm gonna have to set aside a certain amount of time to get ready to present at that meeting. So a lot of it is just kind of that simple. It's whatever happens to be most pressing and then but then what you have to do kind of in the background and and and again, there's people there are there are trial judges who are more or less directly involved in this themselves, but what I'm also doing is in kind of as I put it in the background, kind of making sure that the 30 new cases I got last month, that something's happening in those cases that, you know, deadlines are being set or somebody's being told, okay, you're gonna have a case management conference on such and such a date so that everything has what I tried to do and one of the things, again, one of the things I learned from, you know, other people when I started the job was try to make sure that everything has some sort of a date or a deadline because the last thing you wanna have happen is to save stuff start slipping through the cracks.
Judge Matthew Kennelly:Now, you can always move the date of the deadline but make sure everything has one. And and so then it then a lot of it becomes kind of a honestly, kinda it's really mundane. I know kind of an exercise and okay, I got all these deadlines. Which are the ones that I can move? Which are the ones that I can't move?
Judge Matthew Kennelly:Which are the ones that I really really can't move because this is really really gotta be done right now. So for example, you know, during the last ten months, eleven months, because of the pandemic and because of you know, some changes in the law, we now have as district judges the authority to do what some people call a second look on sentences. And so we've gotten this flood of requests from people who are in prison that I've put in prison or that some judge who's now retired put in prison and I got assigned their case saying, I'm gonna die in here. Let me out. And I've done enough time.
Judge Matthew Kennelly:And obviously, those things are more pressing. They have to go to the top of the list. Now, do all of them go to the very top of the list? No. They don't.
Judge Matthew Kennelly:Sometimes they sometimes they don't. Sometimes you may look at that and say, you know, maybe not right now but maybe in another six months I'd consider this. So maybe you put that on the back burner. So there's some things that kind of naturally have to go to the top of the list. I had this big case last spring that involved, again, the pandemic and how that was affecting people in the the local jail and because of the way that was presented to me, that was a drop everything, all hands on deck, everything's got to stop for the next x number of weeks so we can get this decided.
Judge Matthew Kennelly:And so some of the prioritization is happening that way and and so so I I I wish I could tell you that I could hear. I'm gonna turn the camera around and there's my flowchart on the wall. It tells that I have anything like it would be it would be great it would be crazy looking. It would be one of, like, one of those, you know, cop shows on TV where they go into the crazy person's basement and they've got like 500 things up on the wall with strings between them. That's what it would look like.
Judge Matthew Kennelly:So and it would be scary and and probably not a good thing for anybody to see.
Khurram Naik:Well, it seems like that's a funny way to put it. I'm sure there's some things that are more systematized, about it. Yeah. It I I think that's such
Judge Matthew Kennelly:a Well, yes. Okay. There are. Sure. There are.
Judge Matthew Kennelly:Yeah. So x number of days after a case is gonna a case comes in, I need to make sure that I have set a deadline for somebody to get that case going. You know, when a criminal case comes in, particularly if the person's in custody, when the first time they come in, I'm actually gonna set that criminal case for trial because with criminal cases, they need we need to know that there's an end date. You know, with if I have a case that I know is going to go to trial, there's certain things that have to happen before the trial and I know what all those are and I'm going to set deadlines for all of those. Everything else, it tends to be more, you know, more case dependent or situation dependent.
Khurram Naik:One thing that I haven't got a sense of is, I imagine the answer is, yes, you do enjoy this, but do you enjoy writing opinions?
Judge Matthew Kennelly:Yeah, I do. I don't all I don't so we as I said before, we have law clerks and again, they're lawyers who basically act as the judge's lawyer. As as the judge's lawyer, you know, you're advising the client, namely the judge, on how he or she should decide a case. They help us, you know, filter stuff, you know, come up with recommended decisions and you know, judges have a different degree of involvement in that process. I actually do some of the decision writing completely by myself without law clerks and part of that is because, you know, I may have two law clerks working on this really super complicated stuff that I don't wanna pull them off of that I really don't wanna do from scratch myself.
Judge Matthew Kennelly:And then then there's this other thing going on over here and I've just realized that that's got to get decided in the next week. So I say, fine, I'm gonna do that myself. Sometimes it's just because I like to and I mean for me, the process of kind of solving a difficult problem, that's that's one of it was one of the more satisfying things about practicing law for me and one of the more, you know, satisfying things as a judge is kind of working your way through a difficult problem and trying to come up with a just and reasonable resolution for it.
Khurram Naik:Do you have a favorite literary reference that you've inserted into your opinion?
Judge Matthew Kennelly:No. Although I have to I I will say that I that I quoted, I I referred to, Bob Beamon in the nineteen eight sixty eight Olympics the other day. And, and I and I actually, on the phone yesterday, quoted Hyman Roth from The Godfather where he where he says to Michael Corleone, this is the business we've chosen. Not this is the life we've chosen. That's the way it commonly gets quoted.
Judge Matthew Kennelly:This is the business we've chosen. I said that to a very successful, very skilled criminal defense lawyer who always has too much to do and was basically complaining he wasn't going to have enough time between some other trial and my trial. He basically said, I'm going to quote Haiman Roth from The Godfather. This is the business you've chosen.
Khurram Naik:That's very impressive. I'm a big fan of Godfather too, and that's not the line I would have plucked out at thin air if I was gonna make a reference to it. So that's that's a good Well, insider I actually did see your your your baseball line because actually it was profiled in Dock and Abbey, don't know if you knew that, but
Judge Matthew Kennelly:Say what? Oh.
Khurram Naik:In Dock and Abbey, yeah. So, well, that's kind of funny. You know, I think something that would be interesting to pick up on that you were talking about earlier, I think we've talked about it in a couple of different ways, but I think you've really underscored the experience that you had before you were on the bench, the distinct practice you had where you had both a criminal docket, and so you really touched on so many kinds of matters and really gave you a really broad understanding of what the rule entailed. And just think that's a it sounds like that's a unique experience that not many other judges had. So can we talk a little bit about the impact of the diversity of experiences someone has, and we can talk about diversity as broadly as we can, beyond substantive, we can talk about backgrounds as well.
Khurram Naik:So what are the ways that you feel that, you know, diversity of all kinds is beneficial to the bench and what are the things to do to facilitate that?
Judge Matthew Kennelly:Well, so, you know, no one person can be completely diverse by him or herself. And so when you talk about having a diverse bench, not everybody is, you know, there's that that means that you have this person from this background and this person from that background and so on. The theory, at least part of the theory, kind of the looking out theory or one part of the theory is that to the extent that judges learn from each other, if you have that diversity of experience, then judges will be able to learn from people with various perspectives. Now how much judges pick up and learn from each other, think is there's no systematized way for that to happen. We have, you know, a couple of the judges on our court in recent years have reinstitutionalized something that existed back in the eighties, early eighties when I was a law clerk which had to do with sentencing.
Judge Matthew Kennelly:You know, I keep coming back to sentencing. But again, the most difficult and probably most consequential thing that we do as judges. And and the way it works is that we have a meeting every Monday and over lunch and any judge in this group and the group can be as any judge in the court can submit a case for, know, that they're gonna have a sentencing hearing in. And you submit all the paperwork, you know, the what we call the pre sentence report, the parties sentencing briefs, whatever else you've got, you submit them and everybody else looks at it. And the and and then we kinda go around the room and each judge or I guess around the not around the room, around the Zoom, I guess, at this point.
Judge Matthew Kennelly:And and each judge kinda says, this is what I think about this case and this is the sentence that I would impose in my if it were my case and here's why I would do that. You kinda go around the room and you get different perspectives. So when when the when this got reinstituted, I there had been various efforts over the years to do this. This is something that existed when I was a law clerk. So back in the early eighties, there was a regular group that would actually meet in my judge's office every Monday afternoon because he was the most senior of this group and that's what they do exactly the same thing.
Judge Matthew Kennelly:There were and it kinda fallen away and particularly with the mandatory sentencing guidelines, it had kinda fallen away because it didn't matter as much anymore. There had been some efforts over the year to reinstitute it and my concern would be, well, if you needed to have a a sufficient diversity of views and backgrounds and attitudes on this group for it to be meaningful. Otherwise, it's all just gonna drive in one direction, either one way or another. And I think we've kind of got that at this point. We've tried to it's a good tool, if you will, for as we have new judges come on our court.
Judge Matthew Kennelly:You know, not everybody has had experience in the criminal field and even those that have, haven't sentenced anybody And we've kind of, you know, as part of our orientation, we've kind of marketed it to the new judges. Like, you really should come join this group and it's beneficial. I mean, like I said, I've been doing this twenty one years and I still find it beneficial even though I've sentenced, you know, hundreds and hundreds of people over the years. So now I've now I've completely forgotten what your question is, I think that was a response to it. Do you remember what your question was?
Khurram Naik:Oh, that's a good question.
Judge Matthew Kennelly:Oh, I got you there. So both of us forgot your question.
Khurram Naik:Alright. Well, here's how I put it. I was opening up the floor to talk about diversity in a broad way.
Judge Matthew Kennelly:Yep. Diversity. Okay. So then my point my point there was that if you have judges from different backgrounds and they are communicating with each other, then that's beneficial because I'm gonna see how somebody who was a career prosecutor looked at this case, and I'm gonna see how somebody who's a career defense lawyer looked at this case. I'm gonna see how somebody who's a career civil litigator who didn't do any criminal cases looks at this case.
Judge Matthew Kennelly:Somebody from, you know, who comes from this walk of life or that walk of life. So internally, if there are judges and thank God we have a couple in our court who've kind of kept this thing going, not myself, other people. If you have judges who are willing to kind of create those mechanisms and keep them running in in some sort of systematized way, you you have that kind of feedback. So that's one aspect of diversity. The other aspect is I mean, it's kind of the obvious.
Judge Matthew Kennelly:It's it's you don't, you know, and and again, particularly in the criminal field, if, you know, a person of color, you know, comes out of the the holding cell at the side and the whole courtroom is full of old white men, it it kinda gives you a bad feeling is that person. And and and yeah, I mean, some of the judges are gonna be old white men but not all of them have to be and not all of them should be. And so from a public facing standpoint that as a court, if we, you know, know, gonna quote a hackneyed old phrase, if we look like America, that's that's gonna be good in terms of public confidence in the judicial system. That it's a it's a diverse group of people, you know, that are out there resolving your disputes and not just a bunch of rich guys that, you know, are dabbling in this in their twilight years.
Khurram Naik:Yeah. There's a bunch of ways we can jump off that. But one way I want to jump off is you've mentioned several times about the difficult nature of sentencing and some of the changes with the second look, the opportunities that this has given you for reflection. And so one question I have for you is what is difficult? I've got an intuitive sense about what's difficult.
Khurram Naik:It's difficult to send someone in prison, and then maybe it's difficult to determine how much it is based on factors like we're talking about as, does this person have a family? Did this person contribute to society in some other way? So that's intuitive but what are some things So that people
Judge Matthew Kennelly:the thing that's the thing that's difficult about is is like like many things we do as judges, it's a question that doesn't have a right answer. It doesn't have a right answer. There's nobody that can come and say that they can come and say with a straight face that for this, this is the right sentence. There's many answers to that question and and and that's part of what makes it difficult. The other part of what makes it difficult is it, you know, you're standing there looking at this person and you're looking at all of what's behind them and you're looking at their victims if it's a case of if it's the crime that has victims and you're thinking about how does this affect all of these people, not just this person here but his family, his victims, you know, other, you know, other people who might be affected by it.
Judge Matthew Kennelly:And then and then it's also difficult from the standpoint that that, you know, it's it's very easy to say, you know, just bang the gavel. Although, by the way, nobody has ever done that, bang the gavel. In the entire time that I have been a lawyer and a judge, I've never seen anybody, any judge bang a gavel except on TV. But but, you know, it's very easy for you to just go out there and figuratively bang the gavel and say, you know, twenty years. But if if if you're if if you if there's any kind of level of humanity and you you have to understand that that's that's a meaningful thing that you you think about, okay, what I'm doing here is I'm saying that for the next x, this person is going to live in a cell.
Judge Matthew Kennelly:Everything they do is gonna be watched. Everything they do is gonna be controlled. They're not gonna be able to leave Even if it's a so called club fed, there's a fence on the outside. They can't go away. They're they they can't pick what they want to eat for lunch.
Judge Matthew Kennelly:They can't pick when they're gonna have a shower. They can't pick whether they're gonna have a shower. They can't, you know, decide that I'm gonna go up the street and get a cup of coffee. They can't say, oh, I'm gonna go out, you know, and jog five miles right now because it's not your time and, you know, in the yard or whatever. And, you know, you it's a very consequential thing.
Judge Matthew Kennelly:And so if if you think about any of that is one of our more senior judges, you know, once said is like, any if you're doing it right, any sentencing takes a little bit out of you and and it does. So and and if you're doing it right means that if you're if you're really thinking about all that stuff. Now you're also thinking about the victim and you're also thinking about the future victims. If they're, you know, if this is somebody who you think might do something in, you gotta think about all that stuff and it's and it's like I say, it's something that doesn't have a right answer. It did, I guess, when we had mandatory sentencing guidelines which is why I say in some, in my view, perverse way, it was easier then.
Judge Matthew Kennelly:But it's there's no training. They do courses in sentencing. They do. But they can't tell you that. What's the right sentence for the guy who just grabbed a bank, gave somebody a note saying, If you don't give me all the money, I'm gonna blow your head off.
Judge Matthew Kennelly:What's the right sentence for that? I don't know. Is it five years, ten years, twenty years, a year and a half? Is it probation with a lot of you know mental health counseling and drug counseling? I don't know.
Khurram Naik:So you mentioned
Judge Matthew Kennelly:It depends. So
Khurram Naik:It depends. So you mentioned that, you know, this kind of premise of, you if you're doing it right, take something out of you. So then what recharges you? What is it that sustains you? What aspect of the role, is it?
Khurram Naik:And I wonder if it's there's different ways to answer this. Maybe one way to answer it is, is it something about the substance aspect of the work? Is it something about how you see it affects the parties? Is it something about how you feel this affects the public in general and how justice is administered? Is it something about how you interact with your team?
Khurram Naik:I mean, what are the things that
Judge Matthew Kennelly:Yeah, I mean, it's a lot of those things. I mean, I think in part it's the knowledge and the awareness that you're important you're you're you're carrying out this very important public function that's necessary for our type of society to continue to exist so that we're not just fighting all these things out in the street somewhere. I think it's you know, the the satisfaction with having done a thoughtful and thorough job on whatever it is that you're working on. I think it's you know, the on a completely different level, the ability to you know, to supervise and shepherd and mentor you know, younger lawyers who work for you. It's it's you know, it's a lot of things like that.
Judge Matthew Kennelly:So it's not any one thing. It's a lot of things but I mean it is it is a satisfying job. It doesn't mean it doesn't mean that every moment of it is fun. A lot of it's not.
Khurram Naik:So you talked about, you know, the when we're talking about diversity earlier, were talking about the importance of the public facing component of the judge's role. And, you know, something that is strange about the role of a federal judge compared to counterparts in other branches of government is, you know, counterparts in the executive branch, the cabinet or the legislative branch, you know, there's plenty of attention on senators and congresspeople. So, you know, in relative terms, district court judges are infinitely smaller amount of attention put on them. I mean, think, you know, if we walked on, you know, if we walked on Jackson Avenue right in front of Dirksen and asked people, can you name one federal judge? You know, I'd be curious to see what the survey results are.
Khurram Naik:So is that I'm curious, I guess, at initial level, we can just talk about how does that make you what's your reaction to that? Is that something that is we can use feature a bug as a construct or, you know, as an initial impression, you know, what do you think about the fact that an individual district court judge gets so little attention, comma, scrutiny?
Judge Matthew Kennelly:Well, I'll tell you what, I mean, I think that part of that is, you know, we're very geographically specific here. So you you you and I live in a city where, like I said, there's on my court, there's 45 or so judges and then in the same building, there's, you know, 15 or 20 bankruptcy judges and in the same building, there's another 15 or so appellate judges and, you know, I'm not gonna say we're a dime a dozen but there's a lot of us and so does, you know, there's there's a few people that somebody may say, Oh yeah, I know about Richard Posner or something like that, you know, because but because of the, know, they're a more prominent person. But you know, if if I'm in, you know, small town USA that it's a one judge court, I don't know. Maybe the maybe the local federal judge in that town is somebody that everybody knows who they are and when they walk down the street, some people say top of the morning to you judge and, you know, tip their tip their hats or whatever. So I think part of it is that.
Judge Matthew Kennelly:I, you know, I I think aside from that though, the, you know, we we don't get recognized but but we I really think that of the branches of government, what we do is way more transparent than any of them because we have to explain our decisions like when representative so and so is voting on this bill or that bill, he doesn't have to issue a written opinion saying why I voted on it. I do. There's a rule that says I do. And so I have to explain it and and largely what we do happens in the in the open. There's no backroom meetings with lobbyists and not that I'm critical of that but there's no backroom meetings with lobbyists.
Judge Matthew Kennelly:It's all happening on a record. Somebody's taken it down. It's illegal for somebody to have a separate meeting with you. So we're much more transparent than I think any of the other, you know, arms of government in that way. And so yeah.
Judge Matthew Kennelly:I mean, does somebody know who this particular judge is? No. But they they they know that we have this system out there that, you know, they're reading about every day which somewhere somebody says, yeah. Okay. I'm letting this person out on bond or I'm not and here's why.
Judge Matthew Kennelly:And you get to I mean, if you're paying attention, you get to see all that stuff and it's I mean, that's a to to me, that's a it's a terrific feature of the and not just to me, to everybody. It's a terrific feature of the system that it's all done in this very transparent way. So yeah, I mean, I don't care if I get recognized walking down the street or not. I mean, I think in some ways it's kind of a good thing because half the people would be saying, wow, that was a boneheaded decision you issued in that personal injury case the other day. What the hell were you thinking about when you did that?
Khurram Naik:Is that that feedback you said you wanted?
Judge Matthew Kennelly:Not that. No. Because that's not the organized systematized, you know, analysis. That's just somebody, you know, reacting to, you know, what they saw on Twitter or whatever. But I mean, that wouldn't be bad either.
Judge Matthew Kennelly:I mean, I could But the problem is I can't talk about it with them. So I I just say, like, thank you very much. Nice to see you, and just, like, let me get out of here really fast.
Khurram Naik:It's interesting because I I think a recurring theme that we're talking about is the benefits and the consequences or the drawbacks of judges being these kind of, as you're saying, these like individual law firms or however you want to put them, there's benefits to this let a thousand flowers bloom kind of approach. But then also maybe it seems to me some missed opportunities for making things more efficient and systematic and fair, possibly, recognizing that some of the nuance we talked about that different matters require. But then also, I think it ties into the issue of, broadly speaking, overseeing judicial conduct. So you're referencing the lack of something like an ombudsman or inspector general aspect, and that so much of the regulation of judicial conduct happens to the appellate mechanism. But you're also noting earlier that there's any number of decisions you make that are almost insulated from that in the level
Judge Matthew Kennelly:That's true.
Khurram Naik:The amount of deference given. So it seems to me that some of what we're talking about in a variety of contexts, say intra Northern District between litigants in the court, between the public and the court, it seems like there's some maybe missed opportunities for feedback loops to get more information. It ties even into your comment about avoiding Robitis. So yeah, it seems to me that that's not exactly, we're not gonna come up with a solution right now. There's definitely a lot of nuance to the problem, but kind of the theme, I should say.
Khurram Naik:But yeah, I'm just curious about the ways in which you think there's opportunities for more of a public engagement in the role of a district court, because I think ultimately that affects things like, say, how district courts are judged and confirmed. And you know, we can talk more about that process too. But yeah, maybe we can just start with that, unless there's more thoughts you have on this issue.
Judge Matthew Kennelly:Not really. I mean, I think on that, I mean, I think, I mean, as we've talked about it here, it seems to me that they're really it really falls on the you're not going to expect, you know, John Q and Jane Q public to do that. They just they don't have the time. They don't have tools, the background, the knowledge. It really falls on the organized bar to provide or to come up with mechanisms for providing feedback to people.
Judge Matthew Kennelly:And recognize that it's a massive undertaking and so it's not likely to happen in any great way. And you know, because the the feedback that we get which is reversed, affirmed by the Court of Appeals, It's it's a it's a it's a slice of what we do. Did you make the right decision or the wrong decision in this particular situation? But it's only a slice. The case management stuff that we're doing, that's not getting reviewed by anybody except if the extreme margins.
Judge Matthew Kennelly:I mean, tell my new law clerks when I start that at least 90 if you think about all the decisions I have to make, at least 95% of them are effectively unreviewable. Either because they're just plain unreviewable or because they're just never gonna get appealed or because if they do get appealed, the standard of review is so deferential on appeal. And it's this very tiny slice of things that are that are effectively reviewable on appeal. And then even then, there's all these disincentives to appeal such as cost. So yeah, most of what we so the the formalized review process of the substantive accuracy of your decisions is just a really narrow slice of what we do and there's what what you'd like to see coming or what I'd like to see at least coming out of the coming out of the organized bar is some way of doing that.
Judge Matthew Kennelly:Of course, there's all sorts of disincentives to do that too because like who's gonna sign that document, you know? Who who's gonna sign the document that says judge so and so is a menace to society and and you know, is is running roughshod over litigants in cases and it gets because that person is maybe it just gets signed by, you know, the local bar association but there's somebody who's the president of that and there's somebody who's the vice president, somebody who's the who's the chair of judicial evaluations and, you know, are those people gonna feel they don't have lifetime tenure, you know, and they got to appear in front of the people they're evaluating. So it's tough. I don't have a good answer for it.
Khurram Naik:Yeah. Let's talk a little more about the confirmation processes. The last time we talked, you're of noting about some of the ways in which that's changed in the time that you've been appointed. Tell us more about the
Judge Matthew Kennelly:way Yeah. So I mean, I think it's it's pretty much conventional wisdom that, you know, up to a certain point in time and let's put the point in time, let's say somewhere around the mid nineties, there was not a whole lot of serious scrutiny to federal district judge appointments or trial level judges partly because there were so many of them, partly because there were this the perception was what are they doing that's all that important? They're not setting precedent for anybody. It's not the Supreme Court. It's not the Court of Appeals.
Judge Matthew Kennelly:And and so you would you would see the the historically district judges got confirmed pretty quickly and without a lot of controversy except at the extreme margins. And that's not the case anymore and hasn't been the case for, you know, a few years before I went through the process. And I think it's I mean, I think it's it's partly because of, you know, a lot more you know, you can take this one way or another, but you know, over the years, it's become perceived what a significant role the judiciary has in not gonna say political decisions but policy decisions. And and it's it's normal I think that there would be more scrutiny as that's perceived to be a thing. And and I think there's probably a greater level of awareness that even though people like me are an issue in the final decision on anything, we do set the table so to speak and and you know, maybe some people at my level end up moving up to the upper levels, and so we ought to pay attention to these people before they get too, you know, ensconced and and I think that I think that's true on both sides of whatever aisle you're talking about.
Judge Matthew Kennelly:So there's a there's just a lot more scrutiny of it now. I mean, you didn't have judges district judge appointments getting held up in the old days. It just matter. I mean, the local senator would, you know, would suggest somebody to the president. The president, you know, would pretty much say that.
Judge Matthew Kennelly:What do I know about, you know, the district court in in Keokuk, Iowa? You know, I'm go with what senator so and so says because he lives there. And so there wasn't a lot of scrutiny at that level, and then, you know, the person to get in front of the judiciary committee and it's a district judge and, you know, unless unless there was, you know, something really bad in their background, they would kind of fly through and that would be the end of it. So then that then it changed and it and it changed, I think, largely for what people would call political reasons. I again, I say on both sides and I I can't be critical of that because, you know, it's it's it's certainly true that in some, I would say extremely tiny percentage of cases, you know, some case I have is gonna have some greater impact on society.
Judge Matthew Kennelly:I think that's a really tiny slice of what I do in any practical way but so that's all changed and it's you know district judge and it is still not as controversial, tend not to be as controversial as appellate nominations and certainly not a supreme court. But it tends to be a lot more scrutiny given to them and a lot more situations where people are held up for one reason or another or have to get their nominations pulled or something else like that happens.
Khurram Naik:Now in the interest of the for the benefit of the judiciary and the quality of the people that are selected or the, you know, what are the things that you wish that the general public would ask more of their senators or, you know, expect from their elected officials as part of the selection process for judges? What are the ways you think the general public
Judge Matthew Kennelly:Well, guess what I I guess what I would say is, I mean, and and I I don't I can't blame anybody in in the general populace for thinking this because it's kinda what gets drummed into people. But you please don't look so my job involves processing cases. It involves deciding cases, but it involves processing cases. It involves case management. It involves getting people to do things they don't want to do when they don't wanna do them, and it involves, you know, giving people kind of a fair process, not kind of a fair process by which their cases are gonna get decided and give them an opportunity to to do all that.
Judge Matthew Kennelly:And so so please don't pick people like me about how you think I'm gonna vote on, like, the burning issue of the day because number one, I'm probably never gonna have to decide that case. And number two, even if I do, so okay. It's gonna get reviewed at least one pay maybe two levels above me and that is one tenth of 1% at most of what I do. And so what what you ought to be looking at is, are you are you appointing somebody who has kind of the background and skill to be able to learn how learn in the job and not get sort of highfalutin view of themselves where, you know, they're marching around like the Lord and Master of the universe. And that's what you ought to be focused on.
Judge Matthew Kennelly:So you know, breadth of experience, ability to deal with different types of situations, ability to listen, what is it in their background that gives you the ability to do that. People from different kinds of backgrounds, practice backgrounds, life experience backgrounds, and so on. That's what people ought to be looking at. That I think, honestly, think to a large extent that still happens. Okay?
Judge Matthew Kennelly:And don't get me wrong. I'm not saying that the process is broken or anything close to it. I don't think it is. There's a lot more scrutiny but I just think that, you know, we're as as as human beings living in society, we're kind of driven to think about everything as black and white or red and blue or whatever you wanna call it and there's a lot more to my job than that. I mean, as I said, I have a lot more I mean, although I got appointed by a different president, I have a lot more in common with somebody.
Judge Matthew Kennelly:I got appointed by a president Clinton. I have a lot more in common with a district judge that got appointed by president Reagan, you know, than anybody would think because we're doing the same. We're managing this fire hose of information that's coming out and we're managing this, you know, herd of cats that are called lawyers that are that are dealing with this and and yeah, we might decide this case or that case in a different way, but we're, you know, we're largely seeing the same types of things and we're in a problem solving business. We're not in a business about, you know, making the marquee decision that's going to be the thing that reports reported on the 05:30, you know, national news today. We're in a we're in a that's not the that's not the enterprise.
Khurram Naik:So, you know, connecting some dots. So, you know, we've emphasized this case management approach and how much just the raw 30 cases a month, how much that constrains the decisions the judge makes, you know, if there's these federal rules of civil procedure, and there's there's all these aspects of the judge's role that is just really just about managing this flow of material, and that's going to be just, you're selecting for anyone who can do that. I'm also trying to connect the dots to what you said is the most difficult part of the role, which is sentencing. And, you know, based on the, you know, necessarily, you're saying, you know, a key part of that is weighing information about, you know, the seriousness of defense and the context in which it was conducted. And so that seems to me that necessarily that's drawing on life experiences, perspectives, backgrounds that differ.
Khurram Naik:And so I'm trying to think about, you know, how to reconcile those two, where it does seem like there's a major need to have people who are sensitive to different walks of life. And kind of the hard part about that is, you know, to what extent that that information gets pooled or, you know, makes its way horizontally to other district court judges. As you're saying, there's a mechanism for that to flow upwards. And maybe some of those appellate court judges flow down to other district court judges requirements through issuance of an opinion. But so I think that's one thing I'm trying to make sense of.
Khurram Naik:Yeah, maybe I can pause there. We can pick up with the next part of that question.
Judge Matthew Kennelly:So yeah, I mean, that's the problem. The horizontal flow of information, there's we don't have a good mechanism for that. And, you know, maybe we should. Maybe we what we've got right now is we have judicial conferences and we have seminars and we have these kind of informal groups like the one I described before that talks about sentencing. And we have bench bar meetings and many judges are members of bar groups of one kind or another, ends of court, other types of bar groups.
Judge Matthew Kennelly:And so that's there's no formalized mechanism for it. It's all kind of, you you get as much or as little of as you want. And I mean, there's plenty of judges who are not interested in getting none. I mean, that's fine if that's what they want to do. But we don't have a good mechanism for that.
Judge Matthew Kennelly:We don't have any any requirement of in the federal system of continuing judicial education. It's available but it's not required. I'm not sure. I mean, you know, you have to take CLE as a lawyer. I mean, you know, how good is some of that stuff?
Judge Matthew Kennelly:Who the heck knows? Don't don't answer that because I'm the instructor on some of it. I'm not sure I wanna know how invaluable it is, but So yeah, there's not there's not a there's not a great system in place for that and you know, and anything you gotta do, you gotta I gotta saw it. We could do it here. I mean, like I say, we got 20, you know, 21 active district judges, so on and so forth.
Judge Matthew Kennelly:If I'm in the two judge district, I mean, yeah. I mean, we're maybe having lunch together but where else is the information flowing? Mean, that's just two of us. You'd like to get information from 14 other people. So I've gotten it over the years from being on committees that involve judges from other districts, being involved in things around here, being involved in, bar groups and going to meetings and being on know, being part of continuing legal education and trying to listen to what I'm hearing, not just, like I say, getting up there and pontificating, but there's really no organized mechanism for it and that's probably a fault.
Khurram Naik:You know, just an observation that you're talking in order about, and of course, I think it is a fascinating and wonderful aspect of the judge's rule is at the issuing opinion with the basis of their decision. And talking about the appellate mechanism for review, and talking about how that's just a sliver of all decisions that you're making. But even in that sliver, the people that end up on as appellate court judges were district court judges. So that pipeline seems to still affect
Judge Matthew Kennelly:Not all of them.
Khurram Naik:Okay. I mean, that's
Judge Matthew Kennelly:Okay. Yeah. Yeah. Right.
Khurram Naik:Yes. But, so, I mean, jumping off that, so let's talk about it seemed to me that there's so much about the role of the district court judge that, of course, you know, I think just, I think even I would think the general public would think about this, but the litigants also think about this as much as judges are bound by, you know, rules, you know, of course, you know, so much of the role of the judge is discretion. And, you know, and so we looked at judges for their equitable wielding of that discretion. And so, you know, in view of the fact that, you know, you're saying that so little is the decisions a judge makes are reviewable. What are the forces that steer judges as a whole towards making the right calls, Doing the right thing.
Judge Matthew Kennelly:I get it. So if you so the I guess my answer to that is if you're, excuse me, if you're paying attention to what you're doing and how it affects the cases, if you're really paying attention to that stuff, then that's then you're learning from that. You're finding out that I did this and you know what? I did this five times. It really didn't work.
Judge Matthew Kennelly:Or I did this two or three times and it did work. Let's try it in this other context. And you know, what work means we could talk about a little have a hard stop in about
Khurram Naik:ten
Judge Matthew Kennelly:minutes. But but that's that's I guess what I would say. I mean that's that's how you learn it. You learn it from from paying attention to the effect on the case. And you're gonna make mistakes.
Judge Matthew Kennelly:Some things are gonna get screwed up. That's a that's a fact of life and you hope that, you know, then you learn on the next case, I'm not gonna make that same mistake again. And anyway, go ahead.
Khurram Naik:Yeah. One thing to pick up on, the application of it that I'm thinking of is how is it that judges know what their blind spots are or what are the ways in which
Judge Matthew Kennelly:How does anybody know what their blind spots are? You're different from anybody else.
Khurram Naik:Yeah, the specific context they have in mind is, you know, what there's no judicial rule that requires you, Judge Finnelli, to hire diverse clerks. Know, maybe people who have some sort of ethnic background or diversity, sexual orientation, you you name the kind of diversity. But you do those things, right? So what makes you do those things?
Judge Matthew Kennelly:Saying it's the right thing to do. And I think it's important. And I think part of what I learned from when I was a law clerk is that it's this extraordinary opportunity to learn, and and it's an extraordinary gateway into other things. And and I try to give that opportunity to as many people as possible and not all with the same background. And I I because if I did, I'd just be perpetuating the rest of the system just kinda looking like me.
Judge Matthew Kennelly:So it's just because I think it's the right thing to do. Mean, no, there's no rule that requires me to do it. I mean, we get as a system, we get criticized, you know, accurately for not being attentive enough to that kind of on an overall basis. But I think that I think in this day and age, most judges try to be attentive to it and you don't succeed in each and every situation. But it's again, it's because, you know, most of us are in this not because this is just, you know, the cushy job that you want to put your feet up on the table and live out your golden years.
Judge Matthew Kennelly:By the way, if you did, it's a stupid decision because it's it's a hard job. But we're we're doing it because we we are have a commitment to service and a commitment to the system and think that it's a good system, but always think that it can be improved, and that's one of the ways to improve it.
Khurram Naik:You know, we talked a lot about, in some ways, reflections, so talking about ways that you've changed or the bench has changed over time. And we talk a lot about the present, how you manage on a day to day the things that come up for you. I'm curious to hear about how do you think about the future? Say any given attorney in private practice is thinking about changes in trends. Is the work that I'm doing going to be in demand?
Khurram Naik:Are my clients going to be in a good spot? Is there something else I need to be moving into? What are the things that you're thinking about or maybe in general, judges think about as far as perspective, maybe let's say on a year time horizon, you know, what are what are the changes you're anticipating or what are the ways you're thinking or looking at?
Judge Matthew Kennelly:Yeah, you see, you're you know, if you're looking for the let's think some deep thoughts question, you're you're talking to the wrong guy. I mean, I'm I'm more than nuts and bolts person. What I'm thinking about is I'm thinking about the same thing everybody else is thinking about. We've we've had to change everything we're doing the way we do everything over the past year and how much of that's gonna stick and how much of it's a permanent change and how much of it is gonna go flip back to the way it was. And and so because again, maybe maybe it's just because of my job or the fact that I'm suited for it in some, you know, perverse way.
Judge Matthew Kennelly:That's kinda what I'm thinking about. I'm not thinking about, you know, in ten years are we all gonna be working for Amazon or something or or all all gonna be, you know, delivering our decisions by drone or or whatever. But so that's what I'm thinking about. And and you know, it's I think it's like in a lot of situations. I think the answer is that some stuff is never gonna go back to the way it was and in some ways it's gonna be good.
Judge Matthew Kennelly:In some ways it's gonna be dang. That's a shame. But I wish I I could give you the nice philosophical answer but I really don't. I mean, will say in the long term, I think I think it just in society at large, there is a view out there. I mean, again, I keep coming back to the criminal and sentencing that as a country, we have tended to imprison too many people for too long.
Judge Matthew Kennelly:And I think over time that's a long term trend that I think is likely to continue. But aside from that, I mean, what I think the trends are in civil litigation, who the hell knows? I don't know. Sorry.
Khurram Naik:Final question then. So nuts and bolts, I know that you're nuts and bolts person. So what what is a nuts and bolts change that you've gone through right now that you're enjoying?
Judge Matthew Kennelly:That I'm enjoying? Oh, man. Nothing. This is it's kinda stunk for the last ten months. I I I much prefer and I think in our court at least because we've unlike most other federal district courts, we've been very much an in person court.
Judge Matthew Kennelly:I mean, most federal district courts for years and years and years have operated by phone or just on paper, not seeing lawyers. I still remember the meeting. Me and I went to where I was on a committee, a judge's committee, we went around the table and there was a judge from a district in Florida. I said, well, I'm so and so. I'm from the Northern District Of Illinois.
Judge Matthew Kennelly:And he turned to me and says, oh, you're in that in that court where you guys see lawyers all the day. Why would you wanna do that? Or you see lawyers every day. Why would you wanna do that? And I said, like, because we like it and it's it's human contact and so on.
Judge Matthew Kennelly:And and and so I think, you know, that's gone away and I think probably what's gonna happen is that a lot of that's gonna stick because, you know, from a just a cost and convenience standpoint, it's way more efficient and less expensive for people to have a ten minute phone call rather than a ten minute court appearance that requires basically two hours of commitment of your time to come here and sit around and wait and talk and then go back and go through security on both ends and whatnot. So I think there's gonna be more of a trend, you know, towards I'm I'm I'm at work right now and I'm sitting here in this gigantic office. There's nobody else here. Nobody. My assistant's not here.
Judge Matthew Kennelly:My law clerk's not here. They're all working at home. The court reporter, I had all these hearings today. She's sitting at her home. My courtroom deputy clerk, she's sitting at her home.
Judge Matthew Kennelly:I think there's gonna be more and more of that. That's a damn shame too. And I mean, it's it's it's great for a lot of people. It's it's on an individual basis, it's great for a lot of people. It gives people a lot more contact with their family.
Judge Matthew Kennelly:I mean, a place like Chicago, you're saving two hours every day. You're saving that two hour commute. That is great in a lot of ways, but in in terms of, you know, what does this mean for the system of justice that we're now just doing stuff on the phone and I don't know. I don't think it's good. Sorry.
Khurram Naik:That's okay. We can end on that note.
Judge Matthew Kennelly:Alright. Well, hopefully, you'll get five minutes worth out of this anyway, so.
Khurram Naik:I I think I got a few more than that. But, judge Kelly, thanks so much for taking the time. Very, fascinating, insightful, really appreciate you.
Judge Matthew Kennelly:Oh, thanks for the opportunity. It was fun.