View from the Bench: US District Judge Jed S. Rakoff of the Southern District of New York | Practical Law

View from the Bench: US District Judge Jed S. Rakoff of the Southern District of New York | Practical Law

US District Judge Jed S. Rakoff of the US District Court for the Southern District of New York talks about his role as a federal judge and experiences during his time on the bench, and offers practical advice to litigators.

View from the Bench: US District Judge Jed S. Rakoff of the Southern District of New York

by Practical Law Litigation
Published on 15 May 2015USA (National/Federal)
US District Judge Jed S. Rakoff of the US District Court for the Southern District of New York talks about his role as a federal judge and experiences during his time on the bench, and offers practical advice to litigators.
Education: 1969: J.D., Harvard Law School; 1966: M.Phil., Oxford University; 1964: B.A., Swarthmore College.
Career in Brief: 1996–present: US District Court for the Southern District of New York, US District Judge; 1988–present: Columbia Law School, Adjunct Professor (teaching courses in white collar crime, science and the courts, class actions, and the interplay of civil and criminal law); 1990–1995: Fried, Frank, Harris, Shriver & Jacobson LLP, Litigation Partner; 1980–1990: Mudge Rose Guthrie Alexander & Ferdon, Litigation Partner; 1973–1980: US District Court for the Southern District of New York, Assistant US Attorney (1978–1980: Chief of Business and Securities Fraud Prosecutions); 1970–1972: Debevoise, Plimpton, Lyons & Gates, Litigation Associate; 1969–1970: US Court of Appeals for the Third Circuit, Law Clerk to the Honorable Abraham Freedman.
What do you enjoy most about your role as a federal judge? There are two things I enjoy most. First, whereas a litigator needs to argue the best case for his client, as a judge I get to state my own views of what law and justice require. Second, as a trial judge, I can see every day the messy but inspiring business of justice being worked out and advanced.
You have worn the hat of both a federal prosecutor and a white collar criminal defense attorney. How has that experience shaped your approach to securities litigation and white collar cases? As a white collar prosecutor, I felt the thrill of not only bringing "bad men" to justice but also helping to advance the honesty of the marketplace. When I was a defense counsel, I came to realize that many of those "bad men" were complicated human beings and that advocating for their rights was also advocating for the rights of all people generally. These complementary experiences have helped provide me with a deeper understanding of the complexities of the securities markets and those who run them. That understanding is very useful in a judicial district where so many securities and white collar cases are brought.
What aspect of white collar cases do you find most challenging, and why? While, at bottom, most white collar crime reduces to lying about money, it occurs against a backdrop of both factual and legal complexity that must be mastered and remastered in each case if justice is to be done.
What have been the most significant developments in securities litigation during your time on the bench? As in many other areas of the law, most securities cases now settle before trial, either because the risks of going to trial are too great or because the expense associated with taking a case to trial is prohibitive. This is doubly unfortunate because it is only at a trial that the system of justice gets tested and the underlying truth emerges.
What advice would you offer counsel and expert witnesses on how to best explain complex securities issues to the court or a jury? While securities cases are often complex, their complexity can be overstated. Securities cases are fundamentally much simpler than, for example, most patent cases. Although partly a function of specialization and world markets, the use of specialized terminology heightens the perceived complexity of these cases. If you force yourself to explain the particular issues of your case in plain English, without using terms of art, you will be much more effective with both judges and juries.
What impact do you foresee social media and other technological developments having on discovery and trial practice in general? At the discovery stage, computerization, while seemingly daunting, actually makes most discovery quicker and more efficient as long as the parties are required to cooperate throughout the process.
At trial, while much has been written about jurors engaging in their own fact-finding through internet research, my experience has been that the overwhelming majority of jurors will refrain from doing this if a judge explains to them at the outset the importance of basing their decision solely on what they hear in the courtroom and the unfairness of doing otherwise.
What steps are you or your court taking to address the constantly evolving field of electronic discovery? Both individually and collectively, the federal judges of my court are constantly introducing new rules and procedures to handle electronic discovery issues. But the real key is pushing hard on the parties to cooperate rather than trying to hide the ball. This means that when an electronic discovery dispute arises, the judge first must take the time to thoroughly understand the practical implications of the dispute and then entreat or, if necessary, force the parties to work together to resolve it. This has the added benefit of instructing attorneys that even an adversary system cannot work well if they do not recognize the value of professional cooperation.
What advice would you give counsel on preparing for a Rule 26(f) conference? Know your judge. Because I deeply believe that justice delayed is justice denied, I want attorneys to come to the conference having already figured out how to move the case expeditiously. However, other judges may take a more leisurely approach. If you do not know in advance which way your judge leans on this and other similar issues, you are not likely to be very effective.
What is your biggest courtroom pet peeve? Attorneys who think that, because their position is fair and just, they do not need to have a technical basis to support it.
Last year, the Southern District of New York, often referred to as the nation's "Mother Court," celebrated its 225th anniversary. Which former judge from that court do you most admire, and why? I am old enough to have tried cases before the great Edward Weinfeld. He had every quality a great judge should have. He never came to court unprepared, for he immersed himself in the relevant law and facts (and woe to you if you had not done likewise). His demeanor was stern, but never condescending or insulting. He was as free of predispositions as any judge I ever knew, so you were assured of a fair shake. He was not afraid to take on new issues or come up with new ways of resolving old ones when the circumstances demanded. But he always listened carefully to what the attorneys had to say, rather than going off on a frolic of his own. Judge Weinfeld used to say that no case was unimportant and, perhaps alone of all the judges of his era, he truly meant it!