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Bench Pressed

Although he dons black robes instead of blue scrubs, there are times when Richard Matsch feels like a doctor hitting a crowded emergency room on a Friday night. Maybe not George Clooney in ER, exactly, but just as calm in the face of unrelenting crises. Resolute. Driven. "When a judge...
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Although he dons black robes instead of blue scrubs, there are times when Richard Matsch feels like a doctor hitting a crowded emergency room on a Friday night. Maybe not George Clooney in ER, exactly, but just as calm in the face of unrelenting crises. Resolute. Driven.

"When a judge focuses on a case, he can't be thinking he has to get rid of it because he has 400 more," says Matsch. "It's like dealing with a broken arm in triage. You can't let yourself be distracted from doing a good job on a given case because all these others are waiting and you can hear the groans from the hallway. A judge has to maintain a certain discipline."

As chief judge of the U.S. District Court in Denver, Matsch probably knows more about the kind of discipline expected on the federal bench than any other gavel-wielder in the system. For nearly two years, he presided over one of the most complex, costly and emotionally wrenching criminal cases in the annals of American justice: the trials and sentencing of Oklahoma City bomber Timothy McVeigh and co-conspirator Terry Nichols. Week after week, amid stifling security, frantic legal-eagling and a barrage of international media attention, Matsch stayed focused and unflappable. His steady hand at the helm won high praise from attorneys and from a public whose confidence in the judicial system had been on a long slide, thanks to the disastrous dithering of Lance Ito and other celebrated jurists.

But Matsch's performance came at a price. During the long months he grappled exclusively with the McVeigh case, the rest of his caseload was reassigned to other judges in Denver and three visiting judges from Wyoming. The shift further aggravated a festering problem in Colorado's federal judicial district--an alarming backlog of hundreds of cases, many of them filed three, five or even seven years ago. Once known for its remarkable efficiency in doing more with less, the federal bench in Denver is now developing a reputation for strained resources, jammed dockets and an absolutely glacial pace.

Statistics compiled by the court present a dismal picture of the growing logjam. As of last fall, the district had 257 active civil cases that were more than three years old, compared to only 90 such cases four years ago. It now takes nearly two years for the average civil case to go to trial, an increase of almost 50 percent from the average delay in 1993.

The district also had an astounding 1,555 motions pending for more than six months, with two judges--Walker Miller (435 motions pending) and Edward Nottingham (390)--accounting for more than half that total. By contrast, in the entire state of Texas, which boasts four federal judicial districts and 47 federal judges, only one judge, a senior jurist who sits on the bench two to three months a year, had even a hundred motions pending for more than six months. Overall, in terms of the number of civil cases that have dragged on for three years or more, Colorado ranks 79th out of 94 judicial districts across the country.

"It is a problem, and we're working on it," says Judge Matsch. The number of outstanding motions has been "the subject of weekly judges' meetings," he adds.

But Matsch and other judges caution that the numbers may be misleading. For example, the "motions pending" figure doesn't distinguish between dispositive motions (those that can affect the disposition of a case, such as a motion to dismiss) and procedural ones; it may also include scores of now-moot motions from cases that have been settled but haven't been updated in the court's computer system.

"I call our computer HAL," quips Judge Miller. "For some reason, we don't always get the true state of affairs."

Beyond the numbers dispute, though, is an undeniable backlog that is widely acknowledged to be dire and getting worse. The situation is particularly critical on the civil side. Criminal cases are considered high priority and are moved along by speedy-trial requirements and the like, but civil cases are treated quite differently; a judge's failure to rule on a motion for summary judgment could tie up the whole case indefinitely.

While Matsch and his colleagues have only recently begun to discuss the problem publicly, civil attorneys who practice in federal court have been gnashing their teeth in frustration for some time. Most attorneys are loath to criticize the federal bench, since the judges are appointed for life (current annual salary: $136,700) and tend to have long memories. Privately, though, several bemoan the expense, waste and pain caused by the increasing delays in the process. Out of the doctors' hearing, the groans in the hallway are turning into screams.

"We're in a tough spot," concedes one attorney who requested anonymity. "Cases aren't getting resolved. It's like a black hole over there."

"I avoid federal court like the plague," says another. "Civil attorneys are abused, and their cases get delayed over and over."

Some federal civil suits are protracted by their very nature--patent-infringement cases, for example, or complex antitrust or securities litigation. But many of the ancient cases clogging up the Colorado district seem to have lingered on simply out of judicial neglect. Consider these forays into legal oblivion, plucked at random from the backlog of aged but allegedly still active cases:

--On September 21, 1991, Layne Schmidtke, a 24-year-old Army private, was beaten to death by a group of high-school students after a brief altercation on a downtown street in Colorado Springs. In 1992, Schmidtke's widow sued the city, the police chief and various other defendants, claiming that the police failed to respond properly to earlier reports that night of other fights involving the same group of marauding youths. After the usual legal maneuvering, attorneys for the city filed a motion for summary judgment in 1995. Since that time, the case has been shifted from Judge Zita Weinshienk to Judge Wiley Daniel to Judge Miller, who's had it since 1996. The parties are still waiting for a ruling on summary judgment before the case can proceed.

--Back in 1994, a federal prisoner named Wa'il Mansur Muhannad filed a lawsuit against a corrections officer who had allegedly assaulted him after a disagreement about a strip search. As in the Schmidtke case, discovery was halted in 1996 while both sides awaited a ruling from Judge Nottingham on the defense's motion for summary judgment. More than two years later, they're still waiting.

--The 1995 civil-rights case Gamble v. Carlton, a complicated quest for damages stemming from a child-custody dispute, includes among its named defendants dozens of individuals, several private corporations, and government agencies in Colorado and elsewhere. The case also raises some thorny questions about whether certain defendants who are government employees possess "qualified immunity" from such a lawsuit. After more than three years, many of the questions are still unanswered, since the case has been passed like an ugly rumor from Judge Sparr to Judge Daniel to Judge Miller. Last November, Miller punted the case to Judge Matsch, citing a potential conflict of interest.

It's no accident that Miller and Nottingham, the two judges with the largest stash of moribund motions, also are the main targets of attorney's broadsides. Neither judge is terribly popular with civil attorneys. Miller, a former Greeley attorney who was appointed to the federal bench in 1996, is regarded in some circles as "still finding his sea legs"--or slowly sinking beneath the waves. Nottingham, on the other hand, has the reputation of being a no-nonsense taskmaster who's been known to set motions hearings at the crack of dawn, a practice many attorneys view as punitive ("Early to Rise," November 27, 1997).

Yet it would be a mistake to lay the problems in federal court at the feet of a couple of judges. Nottingham declined to comment for this article, but even a cursory examination of his "motions pending" figures turns up many occasions for distortion--for example, more than a dozen motions in a single case that was thrown out of court by a magistrate judge shortly after the figures were compiled. (Heedless of the dismissal, the litigious motion-filer has since added Nottingham and the magistrate to his list of defendants in an amended complaint.) Significantly, Nottingham's backlog of motions more than doubled in size following Matsch's taking on McVeigh and the reassignment of the rest of his cases to his colleagues.

Miller says his growing mound of paper is a function of too many cases and not enough time. "This is just simply workload and what I inherited," he explains. "I have essentially stayed in the same position with civil cases while inheriting a sizable criminal docket. I work like hell to stay in the same position. I hope I'm going in a positive direction. I've been to school a couple of years now and certainly do things more efficiently than I used to."

Judges cite a vast array of reasons for the gumming up of their courts. They range from the obvious--not enough judges to handle the caseload--to subtle observations about each other's work habits and management styles. They encompass intricate scenarios of cause and effect involving the drug war, the explosion of criminal cases, Denver's position as the seat of justice for much of the Rocky Mountain West, and the boom in volume and sophistication of the kind of civil cases they're now seeing. They include, not surprisingly, some theories about the role that hungry lawyers and much-manipulated legal procedures play in fostering and perpetuating the mess. But not even the wise men and women of the bench can agree on a single course of action to break the logjam.

"Trial judges are so swamped with doing the day-to-day, Orwellian kind of work, passing one file on to the next, that it's difficult to get away from it and look at what needs to be done," says Judge John L. Kane Jr., one of the veterans of Denver's federal bench. "I think judges desperately want to see some changes made. But when you're digging the ditch, you can't see the horizon."

For the past ten years, Kane has been semi-retired--on "senior status," as they say around the courthouse, taking only the cases he wants to take. A few years ago he took an entire year off for health reasons and spent considerable time pondering the problems facing the federal judiciary.

"I gave all of this some thought," Kane recalls, "and one of the thoughts I had was never to come back. It's kind of a Sartrean nightmare to be chained to this stuff."

Although the McVeigh case accelerated the problem, the strain on Denver's federal courts began long before the 1995 bombing in Oklahoma City. The bench has been chronically understaffed for at least twenty years.

Despite a mammoth surge in population, a booming economy fueled by high-tech industries (resulting in more patent and copyright suits) and an upswing in criminal cases spawned by wave after wave of federal crime bills, the Colorado district is still presided over by just seven judges, the same number for which it was authorized in 1985. And much of the time, due to vacancies created by judges retiring or taking senior status, the district hasn't had even that many bodies on the bench.

With Judge Weinshienk's recent move to a senior judgeship, the district now has only six active, full-time judges. That's three short, according to the Judicial Conference of the United States, which recommended the addition of one temporary and one permanent judgeship to Colorado's total two years ago. But such positions must be approved by Congress, which has been slow to create new positions or to fill vacancies--Republican senators tend to be less than enthusiastic about judges nominated by a Democratic president, and vice versa--despite a national vacancy rate in federal judgeships that approaches one in ten. The last time Congress authorized any new district seats was nearly nine years ago.

"Given the political climate, we can't expect those positions to be filled in the near future," says Robert Hoecker, circuit executive for the Tenth Circuit, which oversees the federal districts in Colorado and five other states. "Consequently, they are in a world of hurt over there."

Other districts have attempted to cope with the shortage by expanding the power of the magistrate judges; in districts with heavy criminal dockets, such as Southern California and Southern Florida, magistrates now hear a hefty percentage of civil cases. But Colorado resisted such a move for years. This month the district reluctantly became the last in the country to allow magistrates to try civil cases instead of operating simply as case managers. The objection was a philosophical one, says Judge Matsch, rather than a reflection on the abilities of the local magistrates, who tend to be highly regarded by attorneys for their willingness to cut through the paperwork.

"There has been some concern by some judges whether the magistrate system is constitutional," Matsch explains. "But we have been won over out of necessity. How that will play out, only time will tell us."

Since both parties must agree to the appointment of a magistrate to try their case, several judges have expressed doubts about how effective the new system will be in lightening their caseload. They're also skeptical of legislative efforts to speed up justice by requiring judges to become more "pro-active" in managing cases. One such innovation, the Civil Justice Reform Act of 1990, was supposed to reduce costs and delays by implementing strict litigation timelines and greater use of alternative dispute-resolution procedures. But after six years, a study by the Rand Institute concluded that the CJRA pilot program had little effect on the time or cost of civil cases; cases that did get resolved quicker didn't necessarily end up costing any less.

One of the few positive results of the CJRA, the Rand study noted, was a requirement that judges file semi-annual reports on their backlog of cases and pending motions; if nothing else, the reports made the judges more aware of just how far behind they were falling. That point was also hammered home by a local CJRA advisory group consisting of attorneys and court officers. In 1993 the group surveyed attorneys, who "identified the failure of the district judges to rule promptly on motions as the most significant cause of delay."

The advisory group concluded that "the problem is much greater with some judges than others...This fact suggests that the probably due to administrative difficulties rather than workload."

"The advisory group recommended some changes, and the court did not adopt them," recalls Denver attorney Thomas Seawell, who co-chaired the group with then-chief judge Sherman Finesilver. "They were designed to force judges to rule on motions more rapidly. The judges didn't like the solutions, and, boy, it's hard to come up with solutions."

Seawell recently ended his term as president of the Faculty of Federal Advocates, an organization of more than 600 attorneys who practice in Colorado's federal courts. Like the CJRA advisory group before it, the FFA has continued to raise concerns about delays in motion rulings. Matsch says he's "enthusiastic" about the group's interest and is working closely with it to devise a master calendar for the district that will help schedule and dispose of less complex cases. But Seawell says he continues to be mystified by the extraordinary delays in civil cases.

"I don't know what the reasons are," he says. "You can talk about workloads, but there must be some districts that have as many cases. I know of no rational explanation for it."

Yet other observers claim that reasons aren't hard to find, starting with the fact that civil cases take a backseat to criminal matters. Nationally, thanks largely to the drug war, new laws on immigration and the like, the federal judiciary is facing the greatest increase in criminal filings since the days of Prohibition. Colorado hasn't been hit as hard as some border districts by the federalization of what used to be state or local cases, but the criminal caseload has risen by more than 50 percent in the past decade, from 249 cases in 1987 to 388 cases in 1997.

Congress has been quick to add FBI and DEA agents and prosecutors to the payroll to enforce the crime-busting legislation--but not judges to try the cases. "The top of the funnel continues to expand, but the neck doesn't change," says Dick Weatherbee, spokesman for the U.S. Attorney's Office in Denver. "Congress keeps adding laws and resources, but the judiciary is on their own."

Judge Kane stopped taking criminal cases when he moved to senior status in 1988. An outspoken critic of the drug war, he contends that sentencing-reform legislation has not only robbed judges of any discretion over plea bargains but has buried them in busywork as they get dragged into the routine processing of hand-to-hand drug-sale cases that never go to trial.

"It's more bureaucracy and less thought," Kane says. "Instead of the bazaar being in the front halls of the court for everyone to see, it's now in the back offices of the U.S. Attorney's Office or the law-enforcement officer's squad car. They use mandatory sentences in the federal court as a threat to make people become informants. The judges don't have any control over the justice of the matter; they're just there to make sure that the sentencing guidelines are followed, and that takes an enormous amount of time."

As a senior judge, Kane has tried to free up his colleagues somewhat by taking on protracted, highly complex civil cases. Such cases can result in ten-week trials and multi-million-dollar judgments or bruising, seemingly endless wrangles over discovery--such as the contentious battle between the Church of Scientology International and a local anti-cult group, FACTNet ["Nightmare on the Net," March 6, 1997], now in its fourth year of litigation. Colorado has more than its fair share of such cases, Kane says, from prisoners' civil-rights cases (aggravated by the opening of the federal complex in Florence and a proliferation of private prisons) to high-tech patent disputes to long-running environmental-cleanup sagas.

In its national efficiency rankings, the federal judiciary is supposed to take into account the complexity of a given district's cases, using a formula involving "weighted" filings--for example, a securities case would be worth more points than a student-loan default. But Kane believes that Colorado, by virtue of its size, is shortchanged by the rankings.

"These are done by people who don't actually work in the trenches," he says. "You can have a securities case that's going to take five minutes--some nut files something and you toss it out the same day. Or you can have enough lawyers there to make a Pancho Villa movie. But Washington looks at the number of actions per authorized judgeship without making any allowance for how many of those judgeships are actually filled.

"There's a kind of synergism at work. The more judges you're short, the more work goes to other judges, the more they fall behind. And the smaller the district, the worse it is. Here, when you're one judge short, that's 16 percent."

As of January, Kane had elected to go back "on the draw"--receiving a random assignment of civil cases in addition to supervising the appeals the district receives from bankruptcy court and other federal agencies, such as the Social Security Administration. He doesn't know how much of a dent he can make; the combination of being shorthanded and grappling with a crush of criminal cases as well as lengthy civil litigation makes Colorado's situation unusual, he says. And there's another wrinkle to the dilemma that judges rarely talk about.

"Part of a judge's problem is what kind of work habits he or she has," Kane notes. "You have to look at what comes in every morning and be on top of it from the beginning or you get overwhelmed. Then you get tied up in a big case, and that hurts you. And when you go on vacation, the inflow does not stop. I also think a judge's work is to be deciding cases and not be involved in other activities. There's tremendous temptation to get involved in administrative and bureaucratic details. I avoid that at all costs."

Administrative duties have multiplied in the judiciary, just as in every other branch of government. Judge Nottingham is currently serving on a national judicial committee on automation and technology, while other district judges find their calendars cluttered with law conferences and extrajudicial assignments. Judge Matsch says the growing time-management problem is formidable but not necessarily unsolvable.

"I'm sure every one of us can work smarter," he says. "I don't think we can work harder, but we need to find better individual techniques to help us face the problem. More oral rulings, perhaps. We've papered over this process too much."

All Philip Fisher wants is justice for his dog Chipper. But justice can be a soul-draining process in Colorado's federal courts, particularly when you're one man battling teams of lawyers representing a powerful array of media conglomerates.

"I think I'm being screwed around, but I can't prove it," Fisher says. "These people are all billionaires. If I get a fair shake, I'll be surprised."

A Golden portrait artist and cartoonist who once worked on the "Brenda Starr" comic strip, Fisher is also the creator of a comical canine detective named Chipper. Although the 1971 cartoon strip was never published, Fisher claims that United Features Syndicate had access to his work and that Charles M. Schulz of "Peanuts" fame later borrowed from it to turn Snoopy into a sleuthing beagle. After years of fruitless protests to attorneys for various corporations, in 1996 Fisher filed a federal copyright-infringement suit against United Features, the Rocky Mountain News, TCI (which aired a "Peanuts" special featuring the snooping Snoopy), Schulz and scores of other alleged conspirators.

The original complaint, filed on behalf of Fisher Master Artists, lists no fewer than 41 defendants and 43 claims of relief. Judge Weinshienk ruled that a corporation could not represent itself and ordered Fisher to hire an attorney; Fisher elected to proceed on his own behalf as an individual. "A lot of lawyers have said it's amazing what I've done on my own," he says.

Judging from their responses, many of the defendants regard Fisher's action as a nuisance suit. Fisher is convinced that he has a strong case. ("There's no way they can get out of it, except through stall-and-delay tactics," he insists.) But after three years of wrangling and the customary weeding out of defendants, the dispute is far from over; numerous motions for dismissal or summary judgment have been left hanging as the paperwork slipped from the black hole in Judge Weinshienk's chambers to a similar portal in the vicinity of Judge Miller. Last December Miller recused himself and passed the matter on to Judge Daniel. It's one of several cases Miller has had to give up because one or more of the parties involved is represented by the powerhouse law firm of Baker and Hostetler, which recently hired his son David.

To Fisher, the shift to a new judge simply means more delay; all of the judges are just names on paper to him, since he's been dealing with the magistrate assigned to the case until it's ready for trial. "As far as I'm concerned, it's just as well, because [Miller] should have awarded me summary judgment long ago," he says. "I've never even met the man."

Delays such as those in Fisher's case are commonly blamed on workload. Reviewing a motion for summary judgment, which requires litigants to marshal the undisputed facts that they believe entitle them to prevail, can involve many hours of wading through voluminous documents.

"You can't delegate that to a law clerk," Judge Matsch says. "The judge has the responsibility of reviewing everything, and that can take forty hours or more. It's easier to try the case and give it to a jury than to sift through all this."

For various reasons, most judges devote much more energy to actual trial preparation than to catching up on old motions. Judge Nottingham, for example, has one of the highest percentages of civil cases going to trial in less than a year, at the same time that he has one of the largest motions backlogs.

"The impendency of the trial tends to dictate what motions get attention," says Judge Miller. "That isn't necessarily right. The clients in other cases are hurt, of course, and the lawyers are hurt."

Matsch says his court needs to "revisit" the question of how much attention is devoted to motions, even if that means further delay in how long it takes the average case to get to trial. But there is also a bit of legal gamesmanship involved; some judges prefer to leave motions hanging while discovery continues, knowing that most cases will settle before trial anyway.

Attorneys argue that if they could get the judges to rule on their motions, then they could settle many cases sooner. Yet Matsch wonders, given Colorado's abundance of young, inexperienced lawyers being pressured to produce more billable hours--not to mention the high-stakes kinds of cases that wind up in federal court--whether too many motions are being filed in the first place.

"Motions practice tends to build up billable hours," he notes. "Tactically, you can put a case to sleep by filing a lot of motions. What we're trying to do is avoid the tactical use of the motion to stop progress on the case. There is some waste in that, but we think it's better to keep things moving."

Other judges complain of being besieged by fee-boosting but pointless displays of legal brilliance, such as a "motion for partial summary judgment" that, even if granted, fails to address the underlying issues of the case.

"You're not going to get the bar to change this," says Judge Kane. "Why should they? Depositions are a way of life, and a damn handsome one at that. The cost of litigation is enormous."

Kane contends that the underlying cause of delay in the district court isn't unique to Colorado at all; rather, it's the outmoded federal rules of civil procedure, drafted in 1938 and scarcely modified in recent years despite sweeping changes in information technology. The discovery process in big cases can involve reams of depositions, stacks of computer disks, warehouses of files--and humongous summary-judgment pleadings piled to the roof of the courthouse. When United Airlines recently began to strictly limit the size of carry-on baggage at DIA, clerks at the district court responded by constructing their own mock contraption to reduce the size of pleadings filed there. The joke struck home; Kane says it's impossible to file a one-page complaint anymore, no matter how simple the case.

"Say some woman comes into an attorney's office," Kane explains, "and says that her boss told her, 'Put out or get out'--and squeezed her on the butt. You can't file a one-page pleading that says this guy violated Title VII of the United States Code by disparate treatment of this person based upon her sex. The attorney risks being sued for malpractice unless he adds a claim for outrageous conduct, for assault, for intentional infliction of mental suffering--it just goes on and on. Then both sides file motions and briefs, and judges get weighed down with these things."

Barring wholesale changes in the rules of civil procedure, or greater use of technological innovations such as video-conferencing and electronic filing, Kane doesn't anticipate the process getting any faster or more efficient. "All I see is more confusion," he says. "We're in the absurd situation of trying to enforce rules that are sixty years old and have no relevance to life at the turn of the millennium."

Other judges are equally pessimistic. "Is there a magic bullet?" asks Walker Miller. "Other than adding more judges, I don't think so."

Judge Matsch says he's concerned that too much emphasis on speedier case management could erode the adversarial system of justice--not only by restricting a judge's ability to handle his caseload his own way, but by hampering "the lawyer's ability to practice law the way he wants to do it."

"We're not just processing cases," Matsch says, "we're resolving disputes among human beings. To some extent, the technology gets in the way of recognizing the humanity in this process."

But long delays, Matsch admits, also dehumanize the process. Litigants rack up legal bills; sometimes they get fired, declare bankruptcy, become incapacitated or die--all without obtaining the relief they'd sought. "Obviously, delays have a negative effect on public confidence in the court system," he says.

Three years into his lawsuit, with no trial date in sight, Philip Fisher knows whereof the chief judge speaks.

"I have plenty of patience," Fisher says. "But at my age--I'm 68 years old. Maybe they're waiting for me to die of old age, huh?

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