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  • InsideTrack
  • February 21, 2018

    Advice and Insights: Q&A with Chief Judge Diane Wood, Seventh Circuit Court of Appeals

    Diane Wood, chief judge of Seventh Circuit Court of Appeals, has a lot on her plate. In this Q&A, a primer to her upcoming discussion at State Bar of Wisconsin's Annual Meeting and Conference in June, learn why Chief Judge Wood is busier than ever.

    Joe Forward

    Diane WoodFeb. 21, 2018 – Chief Judge Diane Wood of the U.S. Seventh Circuit Court of Appeals, might be the hardest working federal circuit judge in the U.S. In addition to her administrative duties as chief judge, she also has a full caseload on the bench.

    In some of the 13 federal circuits, chief judges take a reduced caseload to account for the tremendous amount of administrative work attendant to chief judgeships.

    That’s not in the practice in the Seventh Circuit Court of Appeals, perhaps a reflection of the hardworking values of the states it covers: Wisconsin, Illinois, and Indiana. According to court research, Chief Judge Wood wrote 64 merit opinions in 2017.

    Chief Judge Wood is also dealing with a short-handed court. The 11-member court had three vacancies when Judge Richard Posner retired last September, leaving four vacancies. Judge Amy Barrett filled one in January, but three seats are still open.

    So how does she do it? “My husband will tell you that the way I juggle it is to work seven days per week, and that’s probably not too far off,” said Chief Judge Wood, a featured speaker at the State Bar of Wisconsin’s 2018 Annual Meeting and Conference (AMC).

    William Domnarski, a lawyer and author, will interview Chief Judge Wood in a Q&A format on day two of the AMC, which takes place June 21-22 at the Grand Geneva Resort & Spa in Lake Geneva. Domnarski has written several books on federal judges, including a biography on former Seventh Circuit Appeals Court Judge Richard Posner.

    Thus, Domnarski is well-positioned to elicit interesting stories and insight about Chief Judge Wood and the inner workings of the Seventh Circuit Court of Appeals. As a primer to that interview, we spoke with Chief Judge Wood briefly for InsideTrack.

    Brief Bio

    Wood, who obtained a J.D. from the University of Texas in 1975, clerked for U.S. Supreme Court Justice Harry Blackmun and served in various roles in government and private practice before entering academia. She was an assistant professor of law at Georgetown University (1980-81) before joining the law faculty at the University of Chicago Law School.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    She took various leaves from teaching in the 1980s to work on special projects, including one to revise the U.S. Justice Department’s Antitrust Guide for International Operations. She was associate dean at the University of Chicago Law School from 1989 to 1992 and deputy assistant general for the Department of Justice’s Antitrust Division from 1993 to 1995.

    Appointed by President Bill Clinton, Wood began her role as judge for the Seventh Circuit Court of Appeals in 1995. She assumed the role of chief judge in 2013. She remains a senior lecturer in law at the University of Chicago Law School.

    Q: What do people like to hear about when you speak at these types of events?

    I think people enjoy hearing about the way the court itself operates. Unless they are very experienced appellate advocates, they are usually interested in court’s expectations of them as people bringing cases in our court. People also seem interested in the court’s initiatives, such as what we are doing with pro se.

    But the inner workings of the court are always of interest to lawyers. Courts are in some ways extremely open institutions, since we issue orders and opinions explaining everything that we do. In other ways, maybe they seem a little more opaque.

    Q: What expectations do you have for lawyers who enter your court?

    The short version is to prepare oneself. We do have a number of resources that are available for a first-time lawyer or even somebody who is primarily practicing in the state courts, but for some reason has an action in the federal court, and they are readily available. We have a good public website, and the first thing I would recommend is reviewing our Practitioner’s Handbook for Appeals that we keep up to date. It really walks people through the nuts and bolts of bringing a case before the court, brief writing tips, timing tips, what’s oral argument like. It’s a very good resource.

    Certainly, you need to be familiar with not just the Federal Rules of Appellate Procedure, but also our local rules. Lawyers should also take a look at our internal operating procedures. For instance, we do hear oral argument in every case where there’s a lawyer on both sides. That’s uncommon among the Federal Courts of Appeals, but that’s the way we do it. So lawyers should be prepared if there’s a case with a lawyer on both sides, for an oral argument. That’s part of their commitment.

    Q: In oral arguments, should lawyers assume the judges have read the briefs and get straight to the point, or do they need to provide background?

    I can certainly assure you that on the Seventh Circuit, the judges will have read the briefs, they will have read whatever decision is being appealed – normally a lower court decision, although sometimes it might be the Board of Immigration Appeals or the Commodity Futures Trading Commission. But whatever it is you are asking us to review, we will have read it. Lawyers don’t have much time, 10, 15, or 20 minutes. They really should have in mind exactly the points they want to get across.

    Q: You usually have a three-judge panel hearing cases. How are the judges selected?

    We have an algorithm that helps us, which is done through the circuit executive’s office, and the clerk’s office helps. We have a very elaborate process for figuring out who is available – whether they will be out of town or have a disqualification, for instance.

    From the eight active judges that we now have on the court, one judge might have a recusal in a case. Maybe it’s a company that judge has stock in. That means we have seven people from which we can choose, and then we look to see which panels have been together because we try to make sure that every judge sits the same number of times with every other judge over about a two-year period. So, I don’t have anything to do with selecting the panels. It’s done using these tools. In determining who will write the opinion, the presiding judge decides. That’s done by seniority.

    Q: There are 11 seats on the Seventh Circuit Court of Appeals, but three are vacant. How has that impacted the court?

    We got down to seven briefly. But then with Judge Barrett joining us – she started hearing cases as of January – we are back up to eight. We do have senior judges, including Judge Bauer, who very generously takes a 100 percent caseload. We also have Judges Ripple and Manion, who each take about a half load.

    And we are very grateful for their help. They have made a huge difference. At the same, our docket has been down a bit. So we have been alright. We also have the option, from time to time, to invite district judges from our circuit to sit with us on cases. But once we get our vacancies filled, we will obviously be in better shape.

    Q: You mentioned the court’s pro se initiative. Can you talk about that?

    Something like 60 percent of our docket is pro se. Many of the pro se petitioners are prisoners, but not all of them. There are people who are just bringing an appeal and they don’t have a lawyer, for whatever reason applies to them.

    So we are doing a number of things. First of all, we are trying to help the district courts manage this litigation, because they are the first stop on the way. A committee, chaired by Judge Barbara Crabb of the Western District of Wisconsin, has tried to make some of the forms more uniform and more readily useable. This way, we can know what it is this person is trying to complain about. Sometimes that’s not clear. Some of them have valid claims and some of them don’t.

    In our conferences on these cases, we’ll gather 12 of them or so together. We have a rule, under which if any one of the three judges sees a legal issue that that judge thinks deserves more attention, we will pull it out of the non-argued case group. We will ask a lawyer to take on the case, and the lawyer will have an oral argument in our court.

    We will call firms that have been willing to step up. It’s a win-win for the firm too, because they might give an oral argument to a younger lawyer to get experience.

    Q: You took over as chief judge in 2013. How was that transition? How is the role different for the chief judge?

    In the Seventh Circuit, the chief judge continues to take a full load of cases. That is our practice. So that didn’t change. What did change was a tremendous amount of administrative work that goes along with being chief judge, which is why in some circuits the chief judge takes a somewhat reduced load of cases. One is responsible for a great number of things, probably most importantly, sitting on the Judicial Conference of the United States. The chief judge is also responsible for screening all complaints of judicial misconduct or disability. Many complaints can be resolved right away because there are some things that are not really misconduct. Someone might just be unhappy with the decision.

    Q: What do you like most about the job?

    I like everything about this job. My colleagues on the Seventh Circuit are great people to work with. Obviously the work is very important. We are very responsible for almost the last word, not quite, but in some cases the last word for the people in these three states. And that’s an honor and a responsibility. Intellectually, of course, it’s really fun to stay on your toes all the time. You never know what’s coming in the door.

    Q: What was that confirmation process like for you, after your nomination?

    I was named by President Clinton in the spring of 1995. It was actually a different situation from what the present nominees are facing because it was a Democratic president, and it was a Republican Senate.

    Sen. Orrin Hatch was chair of the committee at that time and was perfectly courteous. He had had a longstanding interest in the judiciary. When the actual hearing happened, it was pretty straight forward. Then it moved to the Senate, and you have to get time on the floor. I told people, I felt like a bill. You are more or less like a bill.

    Q: When you get a little time off the court, what do you like to do?

    I’m a musician. So in my spare time, I play the Oboe with a couple different musical groups. I have been focusing lately on the Chicago Bar Association Symphony Orchestra. But I have played with many other groups as well. Two of my children are getting married, so I am also planning two weddings.

    About the Annual Meeting & Conference

    The State Bar’s 2018 Annual Meeting and Conference will take place June 21-22 at the Grand Geneva Resort & Spa in Lake Geneva.

    Featured speakers include Chief Judge Diane Wood of the Seventh Circuit Court of Appeals, Richard Painter, former chief ethics advisor to President George W. Bush, attorney and author William Domnarski, author and political satirist P.J. O’Rourke, and Dana Tippin Cutler, past president of the Missouri Bar Association.

    Check out the schedule at-a-glance, which includes a listing of social activities that will take place as attendees earn up to 12 CLE credits. Or just register now!

    First-time attendee? Register by May 21 to receive $100 off the full registration price of $359. Returning attendees get $30 off the regular registration rate if registered before May 21, and discounted lodging rates apply with the May 21 early bird registration.

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