Tag Archives: federal judge clerkship

Hangin’ with Judge Hoffman

POST # 6

This is the sixth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman during 1967 to 1969.

Sitting on the Seventh Circuit

            Judge Hoffman was always worried about the fate of his rulings in the appellate court, the U.S. Court of Appeals for the Seventh Circuit, which reviewed the rulings of the district courts in the circuit, including ours.

            The Seventh Circuit was made up of appellate judges who sat in three-member panels in a courtroom in the same courthouse as the district court courtrooms.  But, as I recall, the Seventh Circuit courtroom was larger, was on a higher floor than the district court courtrooms, and was grander in every way.  The court, as an appellate court, also conducted its proceedings in a far more rarefied atmosphere than the one that permeated the more rough-and-tumble atmosphere at the trial court level.

            Hoffman was frequently reversed by the Seventh Circuit.  In the process, he was often severely criticized by one or more appellate judges for the way he had conducted a trial or reached a legal conclusion.  The South Holland school-district case was a prime example.  Another example was the Amabile case, in which the Seventh Circuit opinion pointed out how easily Hoffman could have avoided reversal if he hadn’t so adamantly refused to ask the jury about the influence of the media on the jury’s thinking.

            Of course, the “Chicago 7” trial was the leading case in which Hoffman was eventually slapped down by the Seventh Circuit.  (I’ll say much more about that trial soon.)

            In early 1969, despite his spotty record with the Seventh Circuit and several months before the “Chicago 7” trial, Hoffman was asked to sit “by designation” on a panel of the Seventh Circuit.  The U.S. Courts of Appeals were at that time frequently overwhelmed by their caseloads, and they would ask retired judges or district court judges to sit by designation on a panel made up of two regular appellate court judges and one non-regular judge. 

            There was great excitement in Hoffman’s chambers when he was asked to do his bit for the Seventh Circuit.  He was thrilled to play the role of appellate judge for a change.  I’m quite sure that he longed to be appointed to the appellate court (he called it being “kicked upstairs”), but that plum had never been offered him.  At least he could now be Appellate Judge for a Day.

            As senior clerk, I was assigned to assist the judge in this new and challenging role.  So when the briefs in the case he was to hear arrived in our chambers, he asked me to read them and prepare questions he could ask during the oral argument.  This sounded reasonable enough.  He was busy with his routine courtroom work and didn’t want to devote much time to the appellate briefs. 

            Still, I did expect him to scan the briefs and have some knowledge of the issues before the oral arguments would be heard.

            I was myself excited about assisting the judge with his new role as appellate judge.  I hadn’t applied for a clerkship with an appellate court, a clerkship that was (like the role of appellate judge vs. that of trial-level judge) more prestigious than the clerkships I applied for with the Northern District of Illinois.  Looking back, I probably didn’t explore the possibility of an appellate clerkship because I was pretty sure that I had a better chance of getting a clerkship with the district court, when securing even one of those was a challenge for a woman applicant in 1967. 

            I’d therefore resolved that if I was offered a clerkship with the Northern District, which was based in my hometown of Chicago, I would grab it and forgo my inclination to work as a lawyer in Washington, D.C. 

            I’d always been fascinated with being at the center of power in D.C.  But at the time of my last year in law school, Lyndon Johnson had squandered the remarkable record he’d acquired on domestic issues (for example, propelling the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and creating the Office of Economic Opportunity) by plunging further and further into the disastrous Vietnam War.  I decided to await the results of the presidential election of 1968 before committing to D.C.  So I was quite happy to accept a district court clerkship in Chicago.

            My own affinity for appellate-level work had been sparked when I participated in my law school’s moot court program, the Ames Competition.  In my first attempt at appellate brief-writing in the fall of my first year, I’d triumphed over a male classmate who was openly miffed that he was assigned to compete against a woman student.  He was overheard complaining that “If you win against a girl, you’ve only beat a girl.  And if you lose to a girl, you’ve been beaten by a girl!” 

            Some of my closest and longest-lasting friendships began in law school, and a great many of them are with male classmates.  But it’s entirely possible that, at that time, there were some others among my male classmates who shared the same misguided notion as my Ames opponent. 

            All of which made my victory especially delicious when I walloped him in moot court.  I earned a higher score from our three male judges, both on our oral arguments and on our briefs.  I almost felt sorry for my opponent.  His lawyer-father had traveled a thousand miles from the Midwest to witness his son’s humiliating defeat.

            Competing in moot court, I discovered my love of brief-writing, and I continued to compete in the Ames Competition as long as I could, hoping to do brief-writing during my career as a lawyer.  As things turned out, I did write appellate briefs during my career, and I went on to teach appellate brief-writing to students at law schools like Northwestern and the University of Michigan.

            The day Hoffman sat on the Seventh Circuit, I was present in the imposing courtroom, perched on a chair just behind the judges.  Once the oral arguments began, the judges were free to interrupt the lawyers with questions, and I had provided Hoffman with a list of challenging questions for both sides. 

            I was shocked when Hoffman finally spoke and revealed his vast ignorance of the legal arguments presented in the briefs. 

            He asked the right questions, of course (I had written them out clearly for him), but he asked them at the wrong time.  Once or twice, he asked a question that a lawyer had already answered, and the lawyer was forced to repeat what he had said a few minutes earlier.

            Hoffman also asked some questions completely out of context, revealing his total lack of understanding of the issues.  As the appellate lawyers struggled to complete their well-prepared presentations, I cringed.  The man was smart enough.  He simply hadn’t bothered to learn anything about the case being argued in front of him, and it showed.

            After the argument, the three judges and their law clerks adjourned to the chambers of one of the appellate judges, and the judges took an informal poll of where they stood.  Once the two appellate judges announced how they were leaning (the two were tentatively in agreement), Hoffman of course jumped in and agreed.  He was then assigned the task of writing the court’s opinion.

            Back in our chambers, Hoffman asked me to write the opinion.  I was excited and eager to bite into the apple of appellate opinion-writing, something I’d never expected to do while working for a trial court judge.  I immediately immersed myself in the law that applied to the case. 

            The law turned out to raise serious constitutional questions.

            The legal issues were complex, and I discovered that I was not completely sold on the outcome the three judges had tentatively agreed upon.  I began going back and forth, one day deciding in favor of the appellant, the next day agreeing with the appellee. 

            Looking for help, I sought out one of the appellate judges’ law clerks.  He was a friend I’d known in law school, and I was sure that he could give me some guidance.  But, like me, he seemed uncertain which way to go, so our brief discussion didn’t help me resolve my internal debate.

            Once or twice, Hoffman asked me how my opinion was coming.  I assured him that I was researching the applicable case law and giving the issues a great deal of thought.  I stated quite clearly that I was deeply involved in pondering these important issues and that I wanted to write an opinion he would take pride in.

            I didn’t see any reason to rush to judgment.  I preferred to think through the issues and come up with a well-reasoned ruling.  Appellate court opinions are often not issued for many months after oral argument.

            But Hoffman’s obsession with speeding through his caseload triumphed over my desire to do a thoughtful and thorough job. 

            One morning I arrived in chambers and was abruptly informed by Hoffman’s secretary that the opinion was written and I no longer needed to do any work on it.  After catching my breath, I asked, “What happened? Did the judge write the ruling himself?”

            Of course not, I was assured.  He had hired someone to write his opinion for him.  Although the secretary didn’t reveal the name of the author, it was a professor at a local law school. 

            So, without telling me, Hoffman had turned the case over to a law school professor, whom he paid out of his own pocket.

            I was astounded.  If Hoffman had given me a deadline (say, “If you don’t write this by June 1st, I’ll have to take it out of your hands”), I would have finished writing an opinion by the deadline.  And it would have been as good as, or better than, whatever the law professor came up with.

            But I wasn’t given any deadline.  After I spent weeks doing difficult legal research and evaluating the merits of the competing issues, the case was yanked out of my grasp and turned over to someone else.

            I never checked to learn how the opinion fared.  Did the two other judges go along with it?  Did the parties appeal to the U.S. Supreme Court?  The truth is that, after the shock wore off, I really didn’t care what happened, so I never bothered to find out.

            Looking back, I probably should have realized that Hoffman desperately wanted to get the appellate case out of the way so he could get back to his everyday routine.  I had assumed that he could separate his appellate court role from his obsession with being in first place in the district court’s statistics.  While he waited for a well-reasoned opinion, he could have speeded through his trial-level caseload the same as always. But I was mistaken on that score.  He couldn’t separate the two roles. 

            In retrospect, maybe I could have proceeded differently.  Maybe I spent too much time going back and forth on the complex legal issues.  Maybe I should have set aside my trial-court responsibilities and focused exclusively on the appellate case.

            I could have simply sat myself down and written an opinion that favored one side or the other.  And been done with it. 

            But I still think that Hoffman was unforgivably wrong to do exactly what he did.

            As disillusioning as so much of my experience with him was, I view this entire episode as one of the worst examples of Hoffman’s high-handed behavior.

Hangin’ with Judge Hoffman

Post #5       

This is the fifth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman from 1967 to 1969.

•     My brush with patent law

      During my clerkship, I had a memorable encounter with patent law.  I’ll explain.

      First, a brief introduction to patent law–and how patent litigation has been handled by the federal courts. I know this sounds boring, but it’s actually pretty interesting.

      Patent law is a very old doctrine.  In the U.S., patents were first acknowledged in the 1787 Constitution. The framers of the U.S. Constitution knew that preserving the rights of authors and inventors was vital if our country was going to succeed.  Article I declares that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  This clause, attributed to James Madison, was adopted unanimously without debate.

      To promote innovation and ensure consistent results throughout the country, Congress went on to give the federal courts the authority to decide any disputes over patents–for example, who was the rightful owner of a patent awarded to a particular invention.  Over the years, Congress has enacted a number of laws enforcing copyrights and trademarks as well as patents. 

      When it comes to patent disputes, federal district judges decide these cases at the trial level.  If one or both sides are unhappy with the district judge’s ruling, they can appeal.  At the time of my clerkship, appeals were heard by the circuit court of appeals that heard appeals from that district.  In our case, that was the U.S. Court of Appeals for the 7th Circuit.

      It was widely known that the judges at both the trial level and the appellate level were woefully lacking in the science background needed to decide these often complicated cases.  They would therefore rely to some extent on the lawyers who presented the arguments on behalf of their clients.  But their rulings were often pretty awful.

      In 1968, I remember hearing that about half of all district court rulings on patent cases were overturned by the courts of appeals, but the truth is that very few of the judges at either level were competent at making these decisions.

      In 1982, Congress changed things.  District judges would continue to decide cases at the trial level, but appeals would be heard by a newly created court, the U.S. Court of Appeals for the Federal Circuit, an appellate court whose judges had a greater knowledge of science and applicable patent law.  But during the years of my clerkship, appeals from Judge Hoffman’s patent rulings were still decided by the 7th Circuit Court of Appeals.

On to my story:          

            At the beginning of my first year as Judge Hoffman’s clerk, the judge distributed his two pending patent cases to my co-clerk, Susan Getzendanner, and me.  Susan was the senior clerk.  She had already served as Hoffman’s clerk for a year.  I was the new and junior clerk.  She and I became good friends, and I learned a great deal about clerking for Hoffman, and clerking in general, from her.  (Thanks, Susan.)

            As the senior clerk (and later the district’s first woman judge), Susan was handed the more difficult case, one that involved a patent for a TV antenna.  I got what I viewed as a still-challenging case, one that involved power tools.

            Susan, who was already the mother of one child, announced at some point during the winter that she was expecting her second child in the spring.  At first, Hoffman was visibly upset.  Would her pregnancy somehow affect his standing in the court statistics?  (You remember the judge’s focus on being first in the district court’s statistics, right?)

            When it turned out that the baby was due in March and that Susan didn’t intend to take time off before the birth (and almost no time afterward), Hoffman relaxed.  After all, in March he would be taking his annual month-long vacation, going off to a luxurious resort, The Breakers in Palm Beach, Florida.

            The only problem was the TV-antenna patent case.  Hoffman had heard evidence in a bench trial (a trial held without a jury), and he’d expected Susan to write his decision while he was gone in March.  So even though, as things turned out, Susan continued to work in chambers during most of March, shortly before Hoffman left on vacation he turned the TV-antenna case over to me.

Although I had already immersed myself in the ins and outs of power tools, that case was extracted from my pile of pending cases, and the TV-antenna case replaced it.

            I was dumbstruck when the implications of Hoffman’s decision began to sink in.  I had never even taken high school physics (a decision I still regret), but I was now expected to rule on the status of a patent on a TV antenna!  The absurdity of having judges who have no scientific training decide patent cases suddenly hit me.  I was even more shaken up when I sat down in March, after Hoffman had left for Florida, and began to leaf through the transcript of the bench trial.

            I tried to make sense of what had taken place in the courtroom.  I struggled with the scientific terminology, reading and re-reading passages of the transcript and the briefs presented by both sides.  But I became absolutely livid when I discovered what the judge had done during the course of the trial.  At least twice, the patent lawyers had given him the opportunity to hear a clear and simple explanation of the science that was critical to deciding the case–and Hoffman had both times refused to hear it.  In his haste to move the trial along (always keeping his statistics in mind), he essentially told the lawyers, “No, no, that’s not necessary.  Don’t waste my time.  I understand everything you’re saying.”

            When I read those passages in the transcript, I felt like screaming.  How could he say that, knowing that he was going to dump this case on one of his unsuspecting clerks?

            I struggled on, trying to gain some understanding of the science behind TV antennas.  I reviewed the briefs filed by both sides and looked at the competing antennas that were stored in the evidence room.  I finally threw up my hands and started writing an opinion. 

            I knew that an earlier opinion by a federal judge in Iowa had ruled against the plaintiff who had claimed infringement in a similar case. The Iowa court ruled that the patent was invalid and therefore was not infringed.

            I reviewed the Iowa ruling and decided that I would not be influenced by it.  Instead, I would make my own decision.  A 1936 ruling by the U.S. Supreme Court (which all lower courts were required to follow) dictated that a patent holder could not assert the validity of a patent that had already been declared invalid in a similar case.  But I decided that, although this case was similar to the Iowa case, it was different enough to rule differently.

            So even though I was uncertain about the science underlying the parties’ claims, I decided to rule in favor of the plaintiff, the holder of the patent, who claimed that its patent had been infringed.  My opinion held that the patent in our case was valid and had been infringed.

            When Hoffman returned from Florida, he wasn’t pleased with the decision I wrote, but he filed it anyway.   As always, he didn’t publish the opinion, but it can be found as a public record:  Civil No. 66-C-567 (N.D. Ill., filed 6/27/1968).

            The decision was appealed by both sides, and the 7th Circuit affirmed in part and reversed in part.  422 F.2d 769 (1970).  It affirmed my decision that the patent was both valid and infringed.

            Guess what happened next.  The case ended up going to the U.S. Supreme Court and, believe it or not, became a landmark case in patent law. 

            Both my opinion and the Seventh Circuit’s opinion had relied on the U.S. Supreme Court ruling from 1936.   But the Supreme Court decided to use this case to reverse its own ruling.  This meant that we were able to uphold a patent that another court had not.

            The Supreme Court decision became a landmark ruling. .University of Illinois Foundation v. Blonder-Tongue Laboratories., Inc., 401 U.S. 313 (1971).  Patent attorneys all know this case as “Blonder-Tongue.”

            In my wildest dreams, I never suspected that my painfully wrought opinion in the TV-antenna case would wind up in the Supreme Court and be considered, in any way, by the highest court of the land.

            Go figure!

A Snowy April 1st

On the morning of April 1st, The New York Times reported that the city had woken up to an April snowstorm, “with about 5 inches of snow expected to produce slushy streets and a tough morning commute.”  The storm followed a string of storms that had hit the East Coast in March with heavy snows and damaging winds.

This New York story about snow on April 1st reminded me of another April 1st snowstorm:  The one in Chicago that changed my life.

In the spring of 1970, I was already questioning whether I wanted to spend another year in Chicago.  My work at the Appellate and Test Case Division of the Chicago Legal Aid Bureau had its good points.  I was co-counsel with a lawyer at the Roger Baldwin Foundation of the ACLU (who happily became a lifelong friend) in a case challenging the restrictive Illinois abortion law, a law that made any abortion nearly impossible for all but the most affluent women in Illinois.  Our case was moving forward and had already secured a TRO allowing a teenage rape victim an emergency abortion.  A great legal victory!

But the rest of my life was at a standstill.  I was dating some of the men I’d met, but I hadn’t encountered anyone I wanted to pair up with.  In fact, I’d recently dumped a persistent suitor I found much too boring.  Relying on old friendships led to occasional lunches with both men and women I’d known in school, but the women were happily married and had limited time for a single woman friend.  I tried striking up friendships with other women as well as men, but so far that hadn’t expanded my social life very much.

I also haunted the Art Institute of Chicago, attending evening lectures and lunchtime events.  The art was exhilarating, but good times there were few.  When I turned up for an event one Sunday afternoon and left a few hours later, planning to take a bus home, I was surprised to see almost no one else on Michigan Avenue, leaving me feeling isolated and (in today’s parlance) somewhat creeped-out.  (In 1970 Chicago hadn’t yet embarked on the kind of Sunday shopping that would bring people downtown on a Sunday afternoon.)  Similarly, I bought tickets for a piano series at Symphony Hall, and a series of opera tickets, but again I many times felt alone among a group of strangers.

I still had lots of family in the area.  But being surrounded by family wasn’t exactly what I was looking for just then.

So although I was feeling somewhat wobbly about staying in Chicago, the question of where to settle instead loomed large.  When I’d left law school three years earlier and assumed a two-year clerkship with a federal judge in Chicago, I’d intended to head for Washington DC when my clerkship ended.  But in the interim Tricky Dick Nixon had lied his way into the White House, and I couldn’t abide the idea of moving there while he was in charge.

My thoughts then turned to California.  I’d briefly lived in Los Angeles during 8th grade (a story for another day) and very much wanted to stay, but my mother’s desire to return to Chicago after my father’s death won out.  Now I remembered how much I loved living in sunny California.  A February trip to Mexico had reinforced my thinking that I could happily live out my days in a warm-weather climate instead of slogging away in Chicago, winter after Chicago winter.

So I began making tentative efforts to seek out work in either LA or San Francisco, cities where I already had some good friends.

What happened on April 1st sealed the deal.  I’d made my way to work that morning despite the heavy snow that had fallen, and I took my usual ride home on a bus going down Michigan Avenue to where I lived just north of Oak Street.  The bus lumbered along, making its way through the snow-covered city, its major arteries by that time cleared by the city’s snow plows.  When the bus driver pulled up at the stop just across Lake Shore Drive from my apartment building, he opened the bus’s door, and I unsuspectingly descended the stairs to emerge outside.

Then, it happened.  I put a foot out the door, and it sank into a drift of snow as high as my knee.  I was wearing the miniskirts I favored back then, and my foot and leg were now stuck in the snow.  The bus abruptly closed its door, and I was left, stranded in a snowbank, forced to pull myself out of it and attempt to cross busy Lake Shore Drive.

On April 1st.

Then and there I resolved to leave Chicago.  No ifs, ands, or buts about it.  I made up my mind to leave the snow-ridden city and head for warmer climes.

And I did.  After a May trip to the sunny West Coast, where I interviewed for jobs in both Los Angeles and San Francisco (with kind friends hosting me in both cities), I wound up accepting a job offer at a poverty-law support center at UCLA law school and renting a furnished apartment just across Gayley Avenue from the campus.

The rest is (my personal) history.  I immediately loved my new home and my new job.  Welcomed by friends, both old and new (including my brand-new colleagues at UCLA), I was happy to have left Chicago and its dreary winters behind.  And six weeks after arriving in LA, I met the wonderful guy I married a few months later.

What happened next?  I’ll save that for still another day.  But here’s the take-away:  a snowstorm on April 1st changed my life.  Maybe it can change yours, too.