On this episode, host Paul W. Grimm talks with his former colleague at the U.S. District Court for the District of Maryland, George Hazel, who entered private practice at Gibson Dunn in 2023 after nearly ten years serving as a judge of that court. Their wide-ranging discussion offers practical tips and advice for attorneys handling both civil and criminal cases.
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Paul W. Grimm: It is such a pleasure to be here today to welcome my esteemed friend and former colleague, George Hazel, to Order in the Court. Well, I want to talk about an area today that I think is critically important and I don’t think you learn it in law school necessarily. You learn it on the job. In private practice, you might not have a lot of opportunity when you first start out to be making the ultimate decisions regarding this area of litigation, but as you get more experience, you do. And that’s motions practice.
When you and I worked together on the court, one of the things that we shared often when we talked is that we had started off as trial lawyers and we prided ourselves on being trial judges. In the back room when we were speaking — always respectfully — about the appellate courts, one of the things that we liked to talk about was we liked being in that courtroom when it was unfolding in oftentimes ways that were unpredictable and we imagined ourselves as trial judges in trial courts.
But what I learned somewhat to my chagrin and what you, because you’re wiser than I am, knew before me, was that in reality we were motions judges because the overwhelming number of civil cases resolve on some type of motion before trial. And in criminal cases, of course the motions, particularly preliminary motions to challenge a search warrant or to exclude a statement or to attack some part of an indictment can very much frame the way in which the case goes. You’ve been a civil litigator, you were a distinguished federal prosecutor, then you were a supervisory prosecutor in the State’s Attorney’s office for Baltimore City, a federal district court judge for eight years, and now you are a civil and criminal litigator again.
I’d like you to just share your thoughts whether you think the judicial system as it currently exists is well-served by the predominance of motions practice as opposed to trials to resolve the majority of cases. It may be that it doesn’t matter whether we think it’s better served or not, we’re just here. But I’d like to just hear your thoughts about are we in a place where... It’s not the place that you and I would’ve intended it to be, but it is that way. So what are your thoughts about that?
George Hazel: So, first, let me just say thank you for the invitation. It’s always a thrill to be with you, Paul. Look, I think as with most things, and this might be an unhelpful answer, but the answer is somewhere in the middle, my favorite thing about our old job was presiding over trials. I don’t even know what I would put second, but it would be a distant second. I loved, and you know this about me, we talked about it. I loved presiding over trials. I would literally do that for free. In fact, so much so not to get on a tangent, I had some spare time in... Where was I? I think Seattle, before I had to catch a flight and true story, I stumbled into a courtroom. This was like three months ago. I stumbled into the federal courthouse in Seattle, sat in the back of a courtroom and watched a civil trial just to kill three hours of time. I could have gone to a movie, I could have gone to the bookstore, I could have done any number of things.
I literally just went, sat in the back of the courtroom, watched a trial because I miss it. That’s one of the things I miss. I love trial. I love trying cases. I think trial is an awesome way to resolve disputes between government and civilians or civilians and civilians. I’ve had other colleagues say similar things. The jury trial is the best creation of humanity. One of my good friends on the bench once said, that might be overstating, but not by much. I really, I enjoy a jury trial. I think it serves a purpose.
However, trials are expensive. Trials can be risky. Trials can sometimes lead to extreme results one way or the other, and so for a lot of reasons it makes sense that if there are things short of trials, such as, and there are other things we can talk about too, and we might, but such as motions practice, that can either eliminate the need for trial. Because a judge who is educated and steeped in the law can look at this case and say, “Look, even if you prove everything you think you can prove, the law just says you’re not entitled to recovery here.”
So we don’t need to bring in, and you know this, we don’t need to bring in 30, 40, 60 people with other things that they could be doing that day. So, let’s make each of them spend a day in the courthouse so that you can select eight if it’s a civil trial, 12 or 14 if it’s a criminal trial, who then have to spend a week of their lives getting paid very little, disrupting their lives, going through all these stressful encounters that’s just foreign to them to make them go through all that for a case where a judge can look and say, “Look, even if you prove everything you think you can prove, you still lose,” right? Or the evidence is so clear just on its face that you win. Whichever way it is. Or it could even be that with motions practice, you are limiting the trial.
You’ve got these three claims, you think you need a three-week trial, but through motions practice, the judge can say, “Okay, this claim and this claim are fine, these aren’t, so we’re going to shrink it down to a two-day trial by eliminating a lot of other stuff.” So I think motions practice serves a purpose and we will get into it more. But there might be times where there are motions that didn’t need to be filed for one reason or another and just were a waste of time. But as a general matter, while I love jury trials, I believe in jury trials, I believe juries get them right more often than they don’t. Frankly, the importance of motions as a way for a judge in particular to be able to slim down what actually needs to go forward, I still think is incredibly useful and a necessity frankly, in the way we handle our justice system.
Paul W. Grimm: I think I came to that same conclusion, George, after beating my head against the wall. I looked at it as that the motions helped me manage the volume of cases that even if you wanted to try them all, you just couldn’t do it. They’re just not-
George Hazel: Exactly right.
Paul W. Grimm: ...enough judges, not enough courtrooms to do it. So let me ask you this, what was your approach as a trial judge dealing with the onslaught of motions in civil cases? It’s just you and your law clerks. To respond to all of these, how were you able to do it so that you weren’t overwhelmed? There are practical things judges can do. What was your approach to this and what advice would you give to our audience about... from the judge’s perspective, what they should be aware about when they’re filing motions?
George Hazel: I think the first thing, and I say this in a way that might sound facetious, but it’s true, is hiring amazing law clerks because you rely so much on your law clerks to help serve as a funnel to get those things to you in a good, consistent, efficient way. And if you don’t have that high-level help, you got no chance. And so the first thing I used to always say every year, the most important decision I ever made, which two law clerks I was hiring, and it was for that reason. No other decision I made was more important to the functioning of my chambers, at least than the two law clerks I would hire every year. And so that was a big part of it. The other thing I would point to, and I know other courts just operate differently, everyone in our court by necessity would do this.
People have different views of what I’m sure what I know you remember well as the six-month list. There’s some courts — I’ve already discovered it as a litigant. I will share with you, Paul, that there are some courts that aren’t as concerned with the six-month list as our court was. It’s an unfortunate discovery that I’ve made as a litigant. For those listening who might not be familiar, every six months you’re supposed to report to Congress or you do report to Congress, which motions you have that are overdue, have been pending for longer than six months. And at least in our court in the district of Maryland, we took that very seriously. We wanted whenever possible, the answer to that question to be zero, and we took that very seriously and worked toward that. I tee that up to say as much as I sometimes groused about it, it’s the kind of thing that served as a forcing mechanism.
So in the beginning of the six-month period, I would make a list working with my judicial assistant that I would then provide to both of my law clerks with the amount of motions that we needed to get done within a six-month period. And the first thing I would say to them is, “Look, we should take some time and go through all of them so that we get a sense of how much work we have to get done at a minimum. Other stuff was still going to come in, but at a minimum we know we have to get this done in the next six months.” Think about what pace you need to be on to get that done. Sometimes as you’ll recall, you had more and sometimes you had less just depending on any number of things. And so just that. So I could be in a routine like, “All right, we need to be getting out two a week in order to get this done,” or “Maybe this is a little lighter, we need to get one a week.”
So that was part of it. Another thing that I tried to do sometimes, and this is something you and I would talk about and some of our colleagues did this more, is resolving some of these motions from the bench. Not everything has to be a 20 to 30 page opinion. Some things need to be, but there were some motions I would find particularly in a motion to dismiss where it was obvious at least some of the claims were going to go forward. Just bring them into court, have a day, listen to the arguments, sort it out. Your law clerk can give you a very short memo before you go into court and then you could just rule from the bench.
It’s not going to be perfect. It’s not going to be as clean as if you had written the 20 page opinion. And so I wouldn’t suggest it for the high profile summary judgment motion where you’re kicking the case out and it’s going to be appealed. But for a motion to dismiss where there are five claims and you can look at it quickly and say, “All right, I’m going to limit this to three claims.”
You can do that from the bench, saves you a ton of time. That opinion is very unlikely to be appealed for a lot of reasons the case is still going to live on. And so that’s an example of something that I would do that just helped just move some cases along. Other little things, small techniques people have in terms of whether they talk to their law clerks on the front end so that you can direct your law clerks a little bit more or you wait until they’ve gone through it. I think different judges have different approaches. Those are some of the things that I tried to do just to manage myself and keep things moving. I’d be interested. I know about some of your tips, but I’d be interested if you have any.
Paul W. Grimm: So, I think I agree with everything that you’ve said. I often considered the approach to be somewhat similar to what the triage folks do in the medical community to try and figure out the priority that you have to give. You can’t simply just take the case that comes in first and do that because you may have a more pressing one that requires more work that has to come first. And so that is something that you have to juggle. Well, I became somewhat infamous in our court because I was the chair of our local rules and forms committee, and when I took over as the chair, I was aghast to see that our local rules allowed a 50-page motion in support of a motion, a 50 page response and a 25 page reply. And it took me about 20 years to whittle it down, but I finally got it to where it was 30 pages, 30 pages and 15.
George Hazel: I appreciated that.
Paul W. Grimm: Yeah. But one of the things that I found I would impose presumptive page limits and say, if you come to me, if you need more pages. And I would set this up when I scheduled the actual briefing schedule because I always did that in talking with the lawyers, “Well, how much time do you need? Can you do this in two weeks? Do you need a month? What do you need?” And I would set that all out because I wanted to resolve the motions before I gave him a trial date because when I gave him a trial date, I wanted it to be a legitimate trial date. But I would say, “It sounds like you can probably brief this and say 25 pages or less, is that right?” These are things that are just not what is intuitive, and they certainly don’t teach you that in law school.
I would say, “When you file your exhibits, put them in a notebook and put a tab between them and make sure that the pages in each individual exhibit are sequentially numbered.” So, I can just say, “Defense notebook tab one, page 45,” instead of going through all of... I mean I remember seeing in decisions, George, when you’d have two lines just to cite where in the record. It would be two lines of text and there was no stuff that was just plaintiffs and all these abbreviations that the blue book made you use. I would also tell lawyers, especially in insurance cases, you and I talked about this, you get a 500-page insurance policy and a commercial policy with all these tabs and we’re fighting over two or three sections. And I would say highlight the provisions of the policy that you think are most important.
I have to look at them in context, but it would help me to look at what your language is, key language instead of me going down there and things like if you attach a deposition exhibit, give me the whole deposition in minuscript because it used to drive me crazy when you get one page that would have the end of a sentence in an answer and you could not put it in context. And those little things helped me when I discussed it with the lawyers, gave them my expectations, but I found that when they did that, and I would say it makes it easier for me to give you what you want, a faster response. And I think that your points, they’re practical management tools that you pick up are really very, very valuable. What would your advice now from the other side as a litigant to the judges be about, “Well, listen, judge, when you’re looking at these motions, here’s what I wish you would keep in mind from my perspective.” Could you share your views on that?
George Hazel: That’s a good question that I hadn’t really thought about. What would I tell a judge from a litigant’s point of view because we spend so much time as lawyers trying to get into the judge’s mind. It’s interesting to put it the other way because I think that generally speaking, the judge is the one deciding the issue. And so by and large, I feel like it’s incumbent upon the lawyers to be focused on what the judge wants. In terms of what the lawyers want I think more than anything timely decision-making would probably be number one. That it doesn’t have to be perfect. It doesn’t have to be 30 pages. It doesn’t have to be the decision that’s going to reshape the law that I’m just looking for an answer. I’d rather a judge give me a short, concise answer two months after my motion has been filed than an incredibly thorough, perfectly reasoned opinion a year after my motion’s been filed.
I think that’s something I tried to appreciate when I was on the bench, but when you’re a litigant, I think you appreciate that even more. That sometimes there might be reasons why a litigant wants delay, but as a general matter, litigants just want to get their cases resolved, heard, resolved, and analyzed. We want the right answer. We’re hoping you find that the right answer is the answer that we think it is, but by and large, we just want an answer. And so, I think that would probably be the one thing I would say to former colleagues now from the litigant’s point of view is so much of this is we just want an answer. Doesn’t have to be perfect, but an answer would be great.
Paul W. Grimm: I think that that’s very, very, very important point. I remember two sayings, one from the perspective of a judge, one from the perspective of the lawyer. The lawyer’s expression that our beloved and now recently departed colleague Fred Motz would say is that lawyers say, “I can live with a decision that goes against me. I can live with a decision that goes my way. I can’t live with no decision.” And one of the experienced judges told me when I became a judge, “Listen, the imperfect decision that you issue promptly is better than the perfect decision that you either never issue or it takes you six months to a year in order to issue.” And I tried to take that to heart as well. And I think that that’s good advice to share with our colleagues who are still actively on the bench.
George Hazel: And of course there is a middle ground to everything. As a judge, you need to at least do enough, provide enough reasoning so that a litigant or in some cases the appellate court at least understands why you ruled that way. So I was never a fan, and I don’t mean this to be critical, different strokes for different folks, different people could have different views on things. I was never a fan of the sort of... I’m trying to remember what you called it, whether it was a minute order. Our court didn’t do this very much, but it granted signature on a motion that actually had some substance to it. I’m not advocating for that. I think there needs to be reasoning, the litigants need to understand why their case did or did not succeed. But yeah, give me a short 10-page opinion that tells me why in a month. I’ll take that even if it doesn’t go my way over waiting a year for the greatest opinion in the history of mankind. That’s at least my take from this side.
Paul W. Grimm: This is an important point, particularly now and my focus so much these days is on the public’s declining confidence in our judiciary and various levels of courts within the judiciary. That one of the ways in which we can bolster public confidence in our jobs as judges is to carefully explain what we do. It doesn’t have to be a four hour sermon, it just has to be enough to explain it or what a friend of ours used to say, “Show your work.” Because that way two things happen. Number one, the public deserves that from us so that they can say, “All right, well I see why you did that and I can now decide if I want to challenge that, whether I agree with it or disagree with it.”
And so I think that that is very important to do and it builds confidence that you are doing it. And the second thing is a point that you made, which is extremely important, is many times the appellate court’s review is abuse of discretion. And if they can’t figure out why you did something, then they really don’t have an ability to determine whether the discretion that you exercise to do what you did should be supported or not. And so it just ultimately helps the parties because it makes it clearer to the appellate court.
George Hazel: That’s a hundred percent right and so then it becomes a balance. And I know judges both from my own personal experience and offline, I would give the name of colleagues, specific colleagues and friends of ours who I know struggle with this so much. That balance of I want to be thorough, I want every opinion to really lay it all out and I just need to get it done and I need to get an answer to these folks and move the cases along. And I think you’ve articulated well the first issue, but that I just can’t emphasize enough again now from this vantage point how. And I probably lost sight of this sometimes, how stressful it is to be in litigation for a party.
Some of these cases are literally bet the company cases where whether this company will continue to exist or not is going to be dependent on the outcome of this case. The core model of how this company functions is being challenged either by The Justice Department or by a civil plaintiff, and the longer there is no resolution of it, the more stressful, the more difficult it is to function, the more weight is on everybody from the CEO down to the janitor. Are we going to continue to be in business or not? Well, we don’t know yet because the judge hasn’t ruled on this decision that we filed seven months ago. At some point we’ll know. I think when you get on this side of it, you realize how stressful litigation is for people. And so it’s like, yes, be thorough but give these folks an answer so they at least know how to conduct themselves going forward. It’s the constant. I struggled with it when I was on the bench for sure. It’s that constant push and pull.
Paul W. Grimm: I think that that’s very true and I think candidly that the public can be assured by the fact that so many judges struggle with that. It’s not like we’re oblivious to it.
George Hazel: Yeah, agree with that.
Paul W. Grimm: So here’s an area where I am going to ask you to put your judge’s rope back on for a moment and offer some practical advice to litigants and parties. And we’re in civil cases still and we’re talking about that preliminary motion to dismiss. You’ve got the motion or you’ve got... The complaint has come in and you have not filed a response. Your client, this can allow you to bridge both positions, your current position and your former position. Your client wants this thing done. Knock out a motion. I want you to file a motion. I want you to get this knocked out at the very beginning.
Iqbal and Twombly certainly require much analysis than what rule [of civil procedure] 8 says on its face about what it takes to have a complaint filed to go forward in the process. We as judges had to distinguish between whether it was more than possible but not probable, but at least plausible and try and figure out in that based on our judgment and the law where it fit on that, which was not the easiest things to do. But more often than not in a preliminary motion to dismiss before the plaintiff has had an opportunity to amend, would require a lot of briefing going through all the causes of action and all the elements of each one only to have the judge say, “I agree, we’re going to dismiss, but it’s without prejudice to file an amendment.” And now you’ve wasted a lot of time or not necessarily wasted it, but you’ve certainly chewed up a lot of time.
You still don’t have a scheduling order and you’re back to the drawing board. There are some procedures you can use to avoid that, but what advice would you give to that lawyer who is struggling with the client saying, “File a motion to dismiss. Let’s get rid of this right now.” Strategically and tactically, when’s the best time to file a motion to dismiss? When should you perhaps hold your fire, go through discovery knowing that there’s a deficiency, develop the facts to show the deficiency and come back on summary judgment? Help us out with that because I think that’s a really important tactical decision and I don’t think it’s taught in law schools.
George Hazel: And there’s so many factors that can go into it that makes it hard to provide the one silver nugget to have people follow. But certainly you have to consider whether or not the motion that you’re going to file is going to end the case or not. So you you’re looking at a complaint and here’s one example, right? You’ve got five claims and you can look and see that claim number five is not sufficiently pled, but you know, you’ve been practicing long enough that the first four are.
So for me in deciding whether or not I’m going to file a motion, a partial motion to dismiss on claim five, the first thing I’m thinking about is, is it going to impact discovery? Because if dismissing claim five is going to have no impact on the scope of discovery that we’re going to have to go through, then there’s just no point in filing that motion getting claim five dismissed when you haven’t changed the scope of the case. You’re going to do all the same discovery, all the same depositions, it’s just now you’re going to do them six months, seven months later because you spent time going through motions practice.
In that case, I would say just let it ride. Don’t even mention it. Go through discovery and then you’ll have your time at summary judgment to say, “All right, now we’re going to use summary judgment for these four claims based on all the discovery we have, but this fifth claim we’re going to kick out.” Now on the flip side, if you look at it and you’re like, “Oh no, claim five is going to cause us to have to go through another whole factual analysis,” and so there will be able to actually slim down the case by getting rid of claim five, then you file that partial motion to dismiss because that’s actually going to save your client resources. Now, all right, we don’t have to depose these three witnesses. We don’t have to go down this rabbit hole. These are things that we now avoid having do by...
So that’s one example of a decision I would make. Another one is it something that’s obviously fixable, right? And this goes to the example that you gave where you file your motion, plaintiff just amends, and then you move on. With some of these cases you look at it and you’re like, “All right, we know that they have this. Just maybe the lawyer didn’t plead it properly.” And sometimes, and I know this collegiality doesn’t happen often, sometimes you might pick up the phone or write a letter. You want to get a good complaint that you can respond to and just say, “Look, I think you just missed something here.”
Because just filing a motion to dismiss, having to brief that, getting that dismissed without prejudice and then filing an amended complaint. Again, you’re six months down the road, eight months down the road and you’ve accomplished nothing. Sometimes it’s easier to just say, “Hey, I think you just... You didn’t plead damages here. You didn’t plead this here. Just put it in. You’re not accomplishing anything.” So it just becomes a function of what you’re trying to accomplish. Are you going to slim down the case? Are you going to end the case? If not, let’s just get into discovery and sort it out at summary judgment. That’s my approach. That’s the advice I would give to lawyers.
Paul W. Grimm: I think that what you have just summarized is what the essence of wise lawyering is, and that’s a good way to come to these things. Now you mentioned my next topic, every judge’s favorite thing about civil litigation, discovery disputes. And one of the things that I would try to tell the judges or the parties when I was having my case scheduling conferences and talking about discovery, I would say, “Listen, unlike when I first started practicing law back when we all wore powdered wigs and rode horses to the courthouse, discovery practices change.” The judge doesn’t see your interrogatories or the answers or the deposition notice or the deposition transcript or the result of the medical examination or the expert’s reports unless there’s a dispute brought to the judge’s attention to resolve. All this takes place between you all outside what’s going on with the judge who sets the schedule.
And so it’s only when something breaks down that you come to the judge and I gave lecture after lecture of the need to cooperate and to focus and all this. The discovery is a real challenge. And I’d like your perspective now from how you thought of the discovery practice, your job as a judge to manage it? And then now since you’re involved as a litigant again, and you started off in that as a civil litigator, sometimes you’re just in a case with someone who is... The expression I remember was all elbows and spit. They’re just not playing by the rules. And you are really frustrated. You feel as though you’re fighting Marquess of Queensberry Rules and they’re trying to kick you below the belt. Could you share that perspective of as a judge, how do you manage it so that the cases that really need your attention get the attention on discovery? Because it can be so expensive and so problematic. And then from a litigant, why it’s so important sometimes that you have to do that discovery?
George Hazel: It’s a great question that you’ve teed up nicely. I think from the judicial point of view, but also probably from the litigants point of view, I tended to ask myself the same question, why does this matter? Because I think sometimes lawyers would lose sight of that and you’re fighting just to fight. You’re fighting just because you got into a contentious case. As a judge, my approach was to use what I think you used, I would get involved in the case early on discovery. If you have a discovery dispute, I would tell the parties, “Send me a letter, two pages, summarize it, let’s get on the phone after I get your letters and let’s see if we could hash it out.’ And that would help me get a sense of... Frankly, just a case generally. So it was helpful for me for that perspective, but also what things are they arguing about?
Are they arguing about real things and real issues? Then sure. And sometimes they just need someone to make a decision. And I get that that was the job. A judge is a decider, a professional decision maker. And sometimes, and I didn’t take any issue with it, when two parties came to me, and, “Your honor, we disagree on whether or not this is relevant to the case. We disagree on whether or not the scope of this discovery is appropriate considering what is being sought.” That was always the core question in a discovery dispute, should we have to search a hundred warehouses for one piece of paper and a dispute worth $6,000? And so as a judge, yeah, I didn’t mind making those decisions. And so as a lawyer, I take that same perspective. If I can resolve something, if I can be reasonable, if I feel like we can get to a place that I’m comfortable with that defends my client’s interests, but sometimes give a little in order to avoid having to get the court involved, it’s my inclination to try to do that.
But as a litigant, you don’t want to be in a place where you’re giving up on your interests in order to try to just appear reasonable. So when you have that person that you described all elbows just willing to fight, sometimes you have to approach it differently than if George Hazel and Paul Grimm were adversaries and we could sit down over coffee and try to figure out, all right, I see why you want this. You can perhaps see why I don’t want to go there. Sometimes you have no choice but to go to the court if the other side is being unreasonable. You don’t want to fight a bear with your hands tied behind your back. You’re trying to be reasonable. The other side is not. You need to enforce the rules at some point, but you still have to answer the question, why does it matter?
Because if it doesn’t matter, then you’re in front of the court and the court’s looking at you like, why are we arguing over this? And you don’t want to be in a position where the court starts to think less of you that you’re picking battles that you don’t need to fight. So I’m always thinking about does it matter? Is it worth it? Is this something where I can give and maybe later on counsel will recognize that because it’s the kind of relationship we have. Or is this something where, no, this matters. I don’t want to... As the plaintiff, I feel like I need this. It’s important and I’m not going to give it up unless a court tells me to. So to answering that question of why does it matter? Is it worth fighting over? I think is something that I always think about when I’m thinking about a discovery dispute.
Paul W. Grimm: Let’s finish up with civil cases with summary judgment. Summary judgment is so important. I recently was listening to the oral argument and appeal of one of my cases, and it gave me some ironical pleasure to hear one of the appellate judges on the panel say, “I had the hardest time trying to come to grips with the size of this record.” And I wanted to say, “Thank you for noticing. That is my job.” Summary judgment motions and oppositions because they allow the parties to bring in exhibits and facts to try to set up the standard of whether there’s a genuine dispute of material in fact, and whether the moving party is entitled to judgment as a matter of law, they could become just mountainous.
And if you had one case each six-month period with that case, you’d do fine, but you didn’t. And so just from the perspective of a judge and then with the wisdom of that perspective, how you might approach it now as a lawyer, what is it that you thought lawyers could have done better in summary judgment practice to make it easier for you just to get through that record and rule? Not that you weren’t going to spend the time to do it, but that it was organized, framed, presented in a way that allowed you to make those determinations without being buried by the record for the sake of burying it. And how would you use that knowledge as a judge and today as a lawyer?
George Hazel: Yeah, I think that, and this might sound an odd way to say it, but I think what I would say is that the key from the point of view of the litigant is to be both broad and narrow at the same time. In the sense that when you’re dealing with a voluminous record, and you touched on this earlier and I couldn’t agree with you more, and it gave me all sorts of flashbacks, the deposition transcript issue where you are reading the paragraph that they cite to and then it cuts off a line later, and that’s an example where you need to be broad and give the judge the whole transcript. Judge wants to read the whole transcript. The judge can read the whole transcript. If the judge wants to see the entire medical report or the entire contract or all of that, have it there for the judge.
I used to hate it. It drove me crazy. I mean, hate is probably too strong, but it was annoying to me, frustrating to the judge when I had to have a law clerk track down things from the parties as we’re trying to work on something. Because inevitably there’d be some delay like I’m working on it right now and I am like, I want to read this transcript and now we got to go find it. It takes a day or two. I’ve moved it on to something else. So that’s where you got to be broad, give it all to the judge, let the judge have it, have access to it, have the ability to look at whatever she or he wants to look at, but then be narrow in terms of how you’re arguing it and presenting it. And saying, “Your honor, this has been after a year of discovery over a five-year long issue, here are the three points that your Honor needs to focus on.” And have it organized and delivered in a way that tells your client’s story in a way that’s succinct and persuasive.
So you’re taking this large universe which you’re giving to the court because you’re not... You don’t want the court to feel like you’re hiding things. Same thing I think works in a jury trial frankly. Like yes, this is a really complicated thing. There’s a lot of evidence we’ve presented. There’s a lot of evidence we’re presenting to the court, but now here are the three points that your Honor needs to focus on. And so that’s being both broad in terms of what you’re providing. It’s all there, but then narrow and focused, here’s what your Honor needs to focus on. And so I think that’s the approach. I appreciate it as a judge. It’s the approach I try to take as a lawyer, you’re always going to know the case better than the judge. You’re always going to know the case better than the jury. You’ve been spending months, years with it. You got to make sure you give them everything, but then focus them on the key points that help decide the case in your favor.
Paul W. Grimm: I think that that’s a perfect way to describe it, George.
Let’s talk criminal cases, and then if we have time, I want to talk a little bit about Daubert motions, which can come up in both civil and criminal. I know this about you and I felt the same way. I enjoyed the substantive law, the procedural law, and the evidentiary law of criminal cases, immensely, they were my favorite cases.
The aspect of criminal cases I did not enjoy, which I know that you agree with is the sentencing, but I recognize it’s important, but I love the criminal law and I love the criminal law because it always dealt with a story that was an important and interesting story. And motions cases in criminal cases where we’re dealing with life and liberty, they take on a whole different arc than in civil cases where oftentimes it’s not unimportant, but we’re not dealing with whether someone’s going to jail or going to have a huge mandatory minimum that they have to serve.
What I found interesting about the criminal cases was of course the playing field is totally unlevel at the initial part. The government’s had forever to investigate. They’ve gone, they’ve indicted, they’ve got all their stuff together, they know what it is. As you well know, indictments are somewhat sparing in terms of all the underlying facts and what the rules require of indictment is not much more than the elements of the offense, so they don’t give a whole lot of information. The defendant, of course now is in this situation where they really want to know what’s going on. They’ve got time pressures. Do I plead? Do I file motions? What’s important here? Oftentimes when I as a judge would issue an order and have a deadline for motions, I would get what I call the placeholder motion. There was no probable cause, number one, and number two, the statement is inadmissible for violation of the 5th Amendment, and then the government would oppose that by this big comprehensive omnibus opposition that covered 47 different topics of motions.
And then you really never knew what the defendants’ case was until they filed their reply, which for the first time said [what they really wanted to challenge]. Then the government would come in and say, “They never said that initially so we need more space to come back and respond.” It struck me that while I understood why that is the way that it went, it didn’t seem to be the best way to approach it. I can’t tell you that I was smart enough to figure out a better way to do it. Could you talk about that dynamic about why motions practice and criminal cases are different and is there a better way to deal with those things or is that just how it has to be?
George Hazel: Yeah, I guess I have a few thoughts. One, in terms of the procedural issue that you identify, I think a lot of times that’s a function of the fact that the motion’s deadline and different courts handle this differently was often so early that the defense really didn’t have a handle on the case yet. And one of the ways that I tried to work around that was to actually push the motion deadline off a little. You told the speedy trial clock and you say, “Look, I don’t want a motion until you know what this case is about because I want to try to avoid that. I want to give you time defense counsel to look at the discovery, talk to your client, figure out what’s what, and then file a real motion, not the boilerplate.”
And that doesn’t mean that nine times out of 10, I didn’t still deal with what you described, but I really mindful of that, try to impress upon them it would be my preference to say, “Counsel, how long do you think you need before you know this case well enough to file a real motion?” And here’s why I say that, Paul, one of the things I really started to grapple with and start to come to, and we could do a whole other hour on this, so I’ll be careful about how far I go into this, is that I feel like we just looked at these issues in a way that allowed the routine nature of them to distort how we handled them. That if you look at, and of course I do, I have a copy of the Constitution here on my screen. If you were to read the 4th Amendment, if you were to read the 5th Amendment, no person shall be compelled in any criminal case to be a witness against himself without due process, right?
I’m just carving out the parts that are relevant. That’s a command that suggests that someone being compelled to be a witness against himself should be something that doesn’t happen that often. The founders could have written that in a different way to make it sound like, yeah, this is something that’s going to happen all the time. That’s not how they wrote the 5th Amendment or the 4th Amendment. They wrote in a way to suggest to judges in the future that this isn’t something that should be happening routinely in America. People being compelled to testify against themselves, in some dark room somewhere after not being fed for six hours, that police shouldn’t just be randomly breaking into people’s houses and taking things. And when you really think about it like that, defense lawyers should have every opportunity to take a real look at the issue to see what’s happened here.
And judges should take the bench with a heightened level of skepticism that the government is coming in. The government who by the way, is trying to take someone’s liberty away and put them in prison is doing that by using evidence that the Constitution suggests should rarely if ever be done. And so I should be coming onto the bench with the notion of, “Government, you got to prove this up.” I’m really skeptical as I take the bench. And I feel like a lot of times, and I’m a former prosecutor and a former judge, I’m Mr. government. A lot of times I think we come in, and so I’m criticizing myself as much as anyone. We come in with the sense that, well, it’s the government. The defense just files the motion in all cases. I’m sure they had a reason why they did that. But no, that’s not the approach we should take to these things.
We should take the approach of, “Hey, something weird has happened here because the government’s not supposed to be able to compel people to testify against themselves. The government’s not supposed to... We’re supposed to be secure in our houses papers and effects against unreasonable searches and seizures. So, something odd has happened here. I need the government to come in here and prove to me that this search and seizure was reasonable. I need them to come in here and prove to me that this was done with due process. And if they don’t, then it’s out.” And my starting place should be that where I’m going to end up is it’s out unless the government comes in and prove it out.
I think the way we start down that road is by saying, “Defense counsel, get the discovery. Talk to your client. Do what an investigation you need to do, and then provide me with a real motion that speaks to the seriousness that I take seriously,” because it’s impossible to take it seriously when it’s the motion you described where it’s just a one-liner because you know it’s a throwaway. Counsel I’m going to give you every opportunity to find out what you need to find out so that you can come in and file a real motion. And it’s just a way of approaching it that I will confess, I didn’t get there until toward the end of my time on the bench, but I started to realize that I think that’s how the system is supposed to work.
Paul W. Grimm: I think it’s so important because when that occurs and you’ve given them that opportunity, what I found pound for pound and case for case was that the government prosecutors and the federal public defenders and our Criminal Justice Act panel counsel in Maryland were extraordinary advocates and oftentimes on their feet, not with a whole lot of endless motions. But I found that when you superintended the discovery process in criminal cases, and you and I did that, sometimes it wasn’t done.
We made sure that they would... If they having trouble getting something that they got it. But when you allowed the defense to distill what that one motion was, which you oftentimes got, was a very good brief with a very good opposition and a significantly greater number of instances in which you had an actual hearing, sometimes evidentiary, but evidentiary in argument so that you pound for pound got a better quality brief from both the defendant and the government held that hearing and were able more times than not to rule from the bench. So you had the benefit of the efficiency, the benefit of the immediate ruling, and you had the benefit of allowing the lawyers to develop what they needed to do, and you had the benefit of making sure they had the facts and the time to do it.
George Hazel: And far more often than not, I want to be clear, at least in the district of Maryland, the government was up to the challenge. The defense put them to the test, the judge put them to the test, the government, you need to come in and show it. Don’t just bring me one witness who barely remembers what happened that day because I had some of those where I ended up granting motions to suppress, but prove it up. And come in with the idea that you’re coming into a skeptical judge who is going to approach it with that way and who’s going to be fair, but who’s just going to follow what he thinks or she thinks the law requires. Which is that it’s the government’s burden to prove these things. And yeah, I think when you do that, at least again in our district government was often up to the task, but you had to put them to the task.
Paul W. Grimm: I yield to no one in my admiration for the lawyers, the prosecutors and defense counsel that you and I were privileged to have in our courts. Well, George, the time has gone by much too fast. It just tells me that I’ve got to get you back, which I will. So we’re going to hold Daubert and maybe some other thoughts about trial practice for later, but I’d like to let you just have the final opportunity to share whatever wisdom, thoughts, considerations you have about the civil and criminal litigation process from the vantage point of where you are now that maybe you hadn’t appreciated fully when you were drinking from the fire hose every day doing it. But have an opportunity now to reflect on it or just have an opportunity to share any advice or thoughts you have about the process, and then we’ll end this delightful conversation at that point.
George Hazel: Yeah, I’ll be brief. Look, this has been a delight. I think I’ve had the great privilege now to see it from every side, right? Prosecutor, civil litigant, defense lawyer, judge. It might suggest to people that I just can’t keep a job, but I think the benefit of it is that I’ve been able to see it from every vantage point. Most people are, at least in my experience, I’ve been fortunate enough to say, are good people working hard, trying to get it right from their vantage point. I just try to keep that in mind that these things aren’t personal. What frustrates me with the practice of law is when people allow these issues to become too personal, and that’s when bitterness takes over, that’s when it becomes a very unpleasant experience. I think the practice of law is by nature adversarial. It’s designed to be. You end up with winners and losers, that’s always going to come with it, with some nature of push and pull.
But my hope, and I’ve tried to be this way as a prosecutor, as a judge, and now as a defense lawyer, is that we can be at a place where we are respectful of each other, where we are honest with each other, where we fight hard, but fight fair and try to ultimately get to the right result. I think a lot of lawyers and judges are on that same page. I hope more get to that page where the practice of law can be like it used to be where we could all get a drink or get some coffee the day after the case is resolved, shake hands, knowing that we all fought hard, but we fought fair. And I think I’ll leave on that note. That’s my hope. That’s how I try to practice and I hope more people join in that approach.
Paul W. Grimm: Well, let me just thank you for this. This has been great. Thank you so much for your time.
George Hazel: My pleasure.
Paul W. Grimm: We appreciate it. I think anyone listening to this right now would be wise to look you up on the internet and reach out and talk to you whenever. As Judge Niemeyer used to say, “You’ve got a client with a lot of money and he’s in a heap of trouble.” Thank you very much.
George Hazel: That’s our specialty. I appreciate that. Take care Paul.
Paul W. Grimm: Take care.