A Conversation with Retired Judge Paul Grimm Part 1

I should just say nothing after that introduction. The only way I can go is down.

That was a very generous introduction. I thank you so kindly. It's a pleasure to be here. I'm looking forward to talking with you.

Well, I'm humbled by it is what I would say, Daniel. I have always felt that being a judge and having the opportunity to try to do your very best with every case to get the right outcome When you have limited resources and limited time to do it was the highest gift of public service that you could give. I was lucky because, you know, they say that being at the right time in the right place. When this explosion of electronic information took off in nineteen ninety nine and early 2000s, the rules were not ready for it.

The bar wasn't ready for it. And there were sort of a small handful of people and you know, magistrate judges and district judges who had to deal with these issues. You know, we worked on the twenty fifteen changes to the rules of civil procedure. It began with a conference in Duke of two thousand and nine.

And in twenty fifteen, on December first, at the end of twenty fifteen, it took us six years to get that done. So the process of rulemaking is very long. Now there's a good reason for that. It goes through multiple layers of review.

It's transparent, it's open to the public. You get views of everybody. So that's all good, but it's not fast. And I just happened to be fortunate that I was among that, you know, half dozen to dozen judges who were dealing with these issues under circumstances when we had to come up with something to resolve these cases.

And maybe it's that old adage, it's better to be lucky than good. But many of the things that we came up by trial and error actually set the foundation for what became the rule changes.

And we're really done with input from lawyers about what they thought wasn't working in the civil justice system and our honest attempts to try to make that easier to live up. Daniel, to the rule you know well, rule one, just speedy and inexpensive resolution of all cases.

So what I marvel at is, is that I had the good fortune to be among some of the most remarkable judges and lawyers at a time when there was, a need for guidance in both the rules and in cases.

And we were blessed with the opportunity to be involved in providing some of that guidance.

You mentioned Daniel, that quote that I have that I referred to, and that's the quote from John W. Davis from nineteen twenty six, talking about Thomas Jefferson as a lawyer that I found just before I became a judge and I had framed and it was the entrance to my office. I'm paraphrasing it now, but in the heart of every lawyer worthy of a name that burns a deep ambition.

So to bear themselves that the profession may be stronger by reason of their passage through its ranks and that they may leave the law itself a better instrument of human justice than they found it. And that's what I think collectively, not just me, but collectively all those judges and all those lawyers, I flatter us and myself that we did do our best to make the law a better instrument of human justice than we found it. And what has happened is we have a whole new generation of much more tech savvy people now. And so they're building on all that so they're not afraid to engage these issues as we are rocketing into new technology that seems to change in some fundamental way every year to eighteen months.

So that's a great question. I think it emphasizes something very important. And that is, is that, you know, in our country, in our culture, our legal system is sort of unique because there's nothing, whether it's sports or science or education or law that doesn't involve itself by coming into a legal case that judges then have to deal with. They don't have the option not to deal with it.

And what law does is it deals with issues involving the interaction of human beings in a way that's trying to be orderly and predictable so that entrepreneurs can invest the time and the sweat equity and the capital to succeed and then enjoy the benefits of that without it being stolen. People have an ability to get their disputes resolved. So it touches every aspect of individual lives and collective government and everything about all of those issues. And so as a result of that, it's the way in which we try to order the interaction between people in our society.

Now we are in an adversary system, which, you know, you would think would work against collaboration, And that can happen when the system doesn't work right.

But one of the players in this, that was an organization, the Sedona Conference, which I'm sure you're familiar with, brought together a lot of people. And they came up with a and in fact, I was on the phone call when this this phrase, was developed and it was the cooperation proclamation. And as a judge, I told lawyers, cooperation is not capitulation.

You get to fight on the key things to fight about. You're not giving up the key fight. But you are focusing on where you can come together to identify those things which are not disputed, to come up with procedures, to keep the flow right, to focus where you're going, to keep the costs down, which benefits both sides. So the benefit of collaboration is that everyone benefits from it when it's done. You give up none of the important things. But what you do is you create an atmosphere for where as a process, the cases and the procedures are better and fairer.

The parties know what needs to be done. And then with, within that framework, they apply the adversary system where it's done fairly to have that clash that allows you to resolve it. So not only did it become something that came out of collaboration and cooperation for discovery, which is essential because remember, most of what happens in discovery, the judge is not involved with. We don't file the interrogatories, we don't see them.

We're not there to depositions. We only get the product of discovery when there's a dispute or the results of discovery is used in a hearing or in a trial. So much of what has to happen to make the system work happens without the judge being there personally. And the judge has to collaborate with the parties when they have the rule sixteen conference and makes themself available for informal resolution of discovery disputes without formal briefing and long time delays and is available at a recess of a trial to resolve a dispute in the middle of a deposition.

You know, all of those kinds of things bring people together collaboratively.

No one fails to represent their client, but what you're finding, it focuses the issues on the things that matter rather than the things that are collateral.

And you are learning a very important technique of disagreeing without being disagreeable. And I think that that Jared is a key component that should animate how judges deal with the parties and how the parties deal with themselves.

Yeah. I think that's a really important point. As we know, words have emotional impact. They have baggage that can go with them.

And so you can say someone is a liar or acting in bad faith, or you can say that they were mistaken. There's a famous quote attributed to Winston Churchill and Winston Churchill could come up with a quote like no one else. And it was tact is the ability to tell someone to go to hell in a way that they could look forward to the trip. And so the words that we use can be very, very important.

And the way I would sort of unpack that is we can, we can use words, okay, to express important ideas and positions in a fashion that signal a zero sum outcome, where for me to win, you must lose, or we can, we can do the same thing to do it in a way which is win win. And when you quoted from the Sedona conference, cooperation proclamation, Daniel, that helped unpack the positive aspects of it. Is that I am collaborating, cooperating with you. Not because I'm a swell guy, and I'm not representing my client, but I know that if I can, talk to you and say, wait a minute, you've asked for twenty years of information.

This dispute deals with information, events in the last five years. How about we start with the last five years? And we get We get the We shoot for the bullseye. Steve Gensler, who was as a professor of law, brilliant professor of law at University of Oklahoma was with me, for a number of years.

We both served on the civil rules committee. He published an article that was called the bullseye view of discovery, where you don't look at the When you're shooting, throwing darts or shooting a bow and arrow at a target, you don't focus on the outside ring and move your way and you shoot for the bull's eye. So let's go for the most important things and do that. Well, yeah, I'm trying to be reasonable.

I'm trying to ask you to do something, but here's the deal. If I can reach an agreement on that with you, then I can go ahead and produce those five years without having to file a motion motion for protective order. I will then get it faster than I can look at it.

And then I can give it to you and you get that information and you don't have to wait for it by going through motions practice. So your client wins, my client wins.

And what happens is, is maybe it's because the number of trials has decreased so dramatically and unfortunately.

And maybe it's because lawyers now have the ability to, you know, there was the phrase, Daniel, you'll remember drive by, you know, being conferred whether they sent a text message at eleven o'clock and there's a response at two in the morning and they never really spoke. Dave Waxy, who was taught us all, all about those things Used to have a thing where the lawyers were fighting over something and they hadn't really He suspected they hadn't met and conferred in an honest way to try and deal with it, but say, all right, look, I see you have a dispute. You want me to answer it? I'm not really satisfied.

You've given it really your best effort to try to work through it. I'll tell you what I want you to do. I want you to one more time meet and confer, but here's what I want you to do. I want you to video record the meeting and confer, and then I want you to send it to me.

And then I'll know whether I need to sanction someone. And Dave said he never got a videotape to look at because he said that he learned when he took physics, that there's a principle of physics that says that observed particles behave differently.

And when people know that they're being observed, a lot of times it's a lack of confidence.

Some people are just the kind of lawyers back when I was practicing that we used to refer to lawyers who practice with a lot of elbows and spit. And they're just hard to deal with no matter what. But a lot of lawyers realize pretty quickly, if you're reasonable, you don't accuse them of misconduct and you make a proposal that you can find common ground that you can deal with and turn something away from being zero sum into being win win, at least partially win win. And that's what the smart lawyers do. And that's the lawyer who who has the relationship with the client, where the client understands why they do better when that occurs.

Well, that that and the fact that if we knew science, we'd be computer scientists, doctors and engineers. So we don't have that. So we go back to lawyering, but I'll talk to you about that. Also, where are the opportunities that we get to model the proper behavior?

I mean, think about it. First of all, when you're looking to see how law is practiced and you're looking for the sort of the external cues before you get to law school and the practice, what do you see? Keep in mind that most people have almost no contact with the judicial system whatsoever. So there's a very, very small number that actually do.

Then you go to law school and in law school, unless you take a clinic or clerk and you get an opportunity to do that. You know, when you take civil procedure, you spend a lot of time talking about long arm jurisdiction and standing and, you know, summary judgment, but you don't spend as much time as as I think people would really ideally hope. Learning about discovery and what you should do and what the scope of discovery is. Now, here at Duke, we have a class that deals with pretrial litigation, which is wonderful because they actually focus on that.

But that's a separate class. There's just not time in the typical civil procedure course to do that. So then we get people who come out and they come out and we put them into litigation.

And if they go to a big firm, then they're the smallest person on a totem pole. They're in a group of people. They have the least voice. It seems awkward to them to speak up and say, should we do a better way?

They just, you know, they're doing what they're doing. They're getting their billable hours. And when I was coming up, we had lawyers, partners who would take a time to go with you. Alright.

I'm gonna sit with you with this deposition. We're gonna we're gonna talk about it before and I'll be there in case you get now they don't have time to do that. Client say, I'm not gonna pay you to do that. And the billables are the what's driving it.

And so you don't have as much of that going on. So there's a lot of forces that can work against that, Jared. But part of it is, is that the modeling of what the correct behavior is, that people could see it and then attach to that, is really important. I once had a case when I was a magistrate judge where I saw this deposition transcript and this one lawyer, it was a defense lawyer and he was absolutely, well, I referred to it as verbal road rage, rhetorical road rage, the way in which he was treating this expert during a deposition and interrupting and threatening and everything.

And the plaintiff's counsel just, you know, threw up their hands because they couldn't get anything done and came. And one of the things that I did was I imposed sanctions, but I ordered them, they take a class on professionalism and civility and then report back to the court. And the guy wrote me and came back and said, I not only took one class, I took two classes and I wanna thank you for what happened in this case, because no one ever showed me the right way to do it. I thought that's what I was supposed to do.

And I didn't really realize it until I was called to task for it, that it was not the right thing to do. I mean, it's like good news doesn't sell. You know, when was the last time you saw a headline, you know, dedicated judge works seven days a week, fifteen hours a day to get the best opinion that they can write. That's never happened.

That's a headline you'll never see.

And that's why, what I would do is I would tell the lawyers, look, if you got a problem like that, you know, when I have a deposition where there was a meltdown and I would, first of all, I was part of a group of lawyers that came up with discovery guidelines that existed. We were had them in nineteen ninety five in Maryland. We then made them part of our local rules And that became the culture. We had opinions on that, that show what it was.

Then when the civil procedure rules actually had examples of what you could say in a deposition, they got rid of the speaking objection where you made a speech and made an objection that's no longer appropriate. And if I had a disconnect that occurred in the deposition, I would just say to the parties, all right, it's a do over. We're gonna do it again. And, I'll be available.

You get a problem, I'm gonna come right in and I will hear both sides briefly. The court reporter will be there. I'll give you a ruling and we'll go from there. And at the most I had to do that one time.

And then they just realized, again, I'm not getting anywhere by modeling this behavior, which is not professional and, and not even part of what a lawyer is supposed to do. And then they, they resolve it and you go forward.

So there's a couple of things. First of all, keep in mind that, there's great variety in terms of the way in which, discovery disputes, which is where these things mostly come up, play out in the federal system, of course, cases are individually assigned from the moment they get filed. So you have a judge. So that's as a parent magistrate judge.

Sometimes a district judge, if they don't wanna handle discovery, we'll give it to the magistrate judges. They're really the subject matter experts. Experts. Over seventy five percent of all the discovery opinions are issued by the magistrate judges. They're fabulous.

They take it very seriously and they do it over and over again. So they become really expert at it. But in a lot of state court systems, the judges that are not individually assigned. And so you may be sitting as motions judge.

So you've got fifteen different types of motions you've got to deal with. You're not gonna try that case. It's not gonna come to you. You don't really know the background of it.

And so there are some what I will call infrastructure challenges to these things happening. You also have judges who come to the bench from different places. I started off in criminal law. And then I spent most of my time in civil law where I was using the rules of civil procedure in state and federal court. And I realized that they matter, the rules of evidence and procedure matter. So I really studied them and I found out that the more I knew them, the better I could get outcomes for my clients.

But a lot of judges come to the bench from being prosecutors or defense attorneys. And I think it is criminal law is challenging, important. It's sort of, you know, very, very significant to who we are and what we are as a people. But you're immediately familiar with all the issues that you face in criminal law because law school prepares you well with it with evidence and criminal procedure and substantive criminal law and constitutional law.

And and the issues are framed so they're familiar when you get them. You come to civil procedure and you've been a you've been doing administrative law or labor law or criminal law. I mean, you look at the discovery rules, they start with twenty six and they go to thirty seven and twenty six gs, I mean, is the one rule, but I mean, what rule are you awake at when you are reading the rule to get down to sub paragraph g? Your mind is just blanked out.

And I think rule twenty six is the longest rule of practice and procedure of any of the rules of practice and procedure, whether it's bankruptcy or whether it's appellate procedure or criminal procedure or evidence or, or criminal law. So as a result of that, what you're trying to deal with is you've got judges, they have enormously busy dockets. Some of them are not familiar because they haven't participated in civil discovery. So they don't have that muscle memory for how it goes and what the pressure points are.

Oftentimes the lawyers come with these disputes that are just, they seem petty and frivolous. And, you know, there's the pile on theory where you file a motion. So they file a counter motion. And the next thing, you know, coming on a Monday and there's seven motions.

The way I would deal with it is just say you can't file any motion unless you write a letter. It's three pages. You tell me what you wanna file. We'll get you on the phone.

If we can work it out, I'll work it out. If we can't, I'll give you a briefing schedule. We'll talk about page limits so we can get this thing done. The minute you start doing that, you just don't get those knee jerk reactions.

So the notion of having active judicial monitoring and management, you don't micromanage every case, but you monitor every case and you are available on quick request to be available to intervene early is how you do it. And some judges are comfortable doing that. Some judges are not. Judges have a lot of autonomy, and a lot of discretion in terms of how they deal it.

I can tell you that many of the practices and procedures that I had when I was a judge, I would try to persuade other judges. A lot of times they've listened and tried it and liked it. Other times they said, that's not for me. I'm not a manager, I'm a decider.

You bring me a fully ripe dispute and I'll decide it. You can't say that that's not a proper way of looking at judging, but what it doesn't scale well for is resolving the volume of cases so that you could achieve that just speedy and inexpensive.

I found that my response to people who said, I don't have time to do that. I would say you don't have time not to do it. I'll give you an example. When I was almost sixteen years as the match state judge, I wrote dozens, if not even more than dozens of discovery opinions.

I had no published discovery opinions as a district judge in ten years because I did them all informally. And I would have a two page or a three page letter order where I would rule in the call and then I would just write it up in a little bench memo that I would put in there so that was a record of it. So that's the difference between, I never had to go down that route. And I always kept the discovery myself.

I did not automatically refer it to a magistrate judge because for me, whether cases are going smoothly or poorly in discovery is the barometer of whether they're going well or not. And I wanted to know that at the very beginning. I had a discovery order that sort of sent out everything. I went over it with the parties at the rule sixteen conference from the very beginning.

I was like, I wanted to be as open a book as I could be about what they could expect.

Before I sound like too much of a tyrant, let me just say this. If you read that factual background for Victor Stanley, this was not subtle.

Yeah. They dealt with spoliation. And and remember, spoliation is a common law principle. While there are statutes that may require certain information to be preserved, it's a common law evidentiary obligation. It comes from the British common law, but really from the Roman law, they had a maxim omnia praesimonthor inodium spolia taurus, all things are presumed against one who destroys evidence. And the notion was you have an obligation to the court to make sure that the evidence necessary to resolve disputes is preserved. If not, then there could be sanctions, including some case altering sanctions.

In this particular case, the evidentiary record was serial, multiple, multiple examples, egregious. I'm not sure that this was a case where they actually used evidence eliminator, But there was some kind of, there was a forensic analysis done by the plaintiff that brought the suit, that showed that they had put software on there that was purposely designed to try to eliminate it after the orders had been given. So the conduct was about as egregious as it could get. And it was repetitive to the point of where it was willful.

You may remember that one footnote in that case where what happened was is that the defendant went on the Victor Stanley had a you could download their specifications if you wanted to put it in your in your plans when you were trying to get approval. And so people had access to it and you had to promise that you wouldn't use it properly. And the evidence was is that this competitor downloaded it, copied it, found a cheaper person to manufacture it overseas, and then name their products. So, you know, sometimes you have like the, you know, the Arizona model and then there's a New England model and they give it a name and it's a whole line within that theme.

And ultimately, the guy fled the country and was ultimately found extradited and brought back into the United States and did spend some time in jail. Not, my order, but by Judge Karpis' order. So those were pretty extreme facts. And but what I wanted to do was I wanted to, because the notion of spoliation had different triggers as to what it would be and it changed depending upon where you were.

This is an opportunity I had. I thought that I could at least get some stuff out there that would allow the good lawyers to be better able to represent their clients and the lawyers who really were gonna go to that extreme to at least realize that there could be consequences for that. So, and I don't think I ever issued any other contempt sanctions in the entire time that I was a judge.

Well, I think that there's a reason why every time there's a CLE for which people get CLE credit, there's a ethics component. And and with each technological innovation, and there are plenty of new professional responsibility, ethical issues that that, artificial intelligence and generative AI create. And that's always gonna be a problem. And, you know, you would think that after five or six highly public examples of lawyers getting in trouble for citing fictitious cases that they got from generative AI that the message would get out there pretty quickly. But just this this week, the second circuit came out with another decision where they referred a lawyer to the ethics folks at the second circuit because they they cited a case that that didn't that literally didn't exist. It was a non existent case. So there will always be, lawyers who don't get it and don't do that.

I will say that the ethics issues sometimes are very challenging, but that's why there are always ethical components of any educational program that I've ever done in the last twenty years to deal with these subjects, and that's why. And they're challenging. And it's a problem because, you know, if it's an ethics violation, then that implicates the relationship between the lawyer and the lawyer's client. It's not just a relationship between the lawyer and adverse counsel and lawyer and the court. So, the issue is that even if you're in the ten states that don't have, had not adopted that, it's not really a good defense. The empty head, pure heart defense doesn't get you too much. So it's a constant reminder that you have to have sufficient knowledge of the technology.

And if you don't have it yourself, you have to associate with somebody who does to make sure because that's the duty you owe not only to third parties, not only to the court, but to your client. And that's the, you know, number one obligation.

And I think, fellas, that we're at the witching hour.

Oh, it was it was delightful. You were nicer to me than I deserved. And and, I hope we have the opportunity to talk again in the future. Thank you very much.

Thank you, Jared.