James D. Peterson, U.W. 1998, U.S. District Court for the Western District of Wisconsin.
Peterson visits with attorney Catherine Rottier following his investiture.
Photo: Michael Kienitz, © 2014
Are you the new Judge Shabaz?
I’m trying. He had a reputation for being a curmudgeon, which does not come naturally to me. But I aspire to his level of efficiency. So think of me as the kinder, gentler Judge Shabaz.
What does a typical day look like for you now?
The work is varied, which makes it interesting. But on a typical day, I’ll have a short hearing or two and I’ll spend the rest of the day working on written opinions. The most common hearings are pleas and sentencings in criminal matters. Those hearings are short, but I spend quite a bit of time preparing for a sentencing.
I have also been holding hearings on nondispositive motions in civil cases. I look for preliminary motions that might disrupt a case, and I try to get those decided right away, ruling from the bench whenever I can.
You’ve had an interesting education and career path – from your Ph.D. in communications from U.W.-Madison, to teaching film and television at the University of Notre Dame, to your J.D. and private practice with Godfrey & Kahn in Madison. How has that circuit influenced you?
You left out catching chickens at a poultry farm. And a lot of other interesting jobs. I’ve always known exactly what I wanted to do for the rest of my life; I’ve just never been right. Well, until now.
I started law school when I was 38, so I went into law with a little broader experience than is typical. I’ve always found that to be useful, because what you learn in one realm of life can be applicable to another. And you get to meet a lot of different kinds of people. That diversity of experience is helpful now, because the issues and the parties that come before me pretty much span the human experience.
- Undergraduate: U.W.-Madison, B.S. in art
- Law school: U.W. Law School
- Favorite movies: Too many to name, but start with Bonnie and Clyde (1967) and Some Came Running (1958)
- Hobbies: Golf, woodworking
My academic work was great preparation for this job, which in some ways is very much like being a professor. I make appearances in the courtroom, but a lot of my time is spent researching and writing. Working with my clerks is like running a seminar with extremely talented graduate students. Sometimes I feel like we are all trying to catch chickens, so that experience comes in handy, too.
What have you learned thus far that you least expected?
I had a fairly specialized civil litigation practice, so I expected to learn a lot about just about everything, especially criminal law. In civil trials, the discovery rules and pre-trial disclosures require both sides to put their cards on the table ahead of time, so a typical civil trial does not have a lot of drama. But my first trial as a judge was the Kristen Smith kidnapping case. Here’s the most surprising thing to me: The defendant in a criminal case does not have to tell anyone what defense she will put on. The prosecution really has to be prepared for anything. As it turned out, Ms. Smith took the stand, and there was a lot of drama, unlike anything I had seen in a civil case. I finished that case with a deep appreciation for what the lawyers on both sides of a criminal case have to do.
[Editor’s Note: Kristen Smith was convicted of kidnapping her 4-day-old nephew in February 2014 and leaving him in a storage container outside an Iowa gas station. He was found unharmed. She is serving 25 years in prison.]
Is the job stressful?
The work is important because my decisions can have a huge impact on the parties and their counsel. The job is demanding because keeping cases on track for prompt resolution takes discipline and hard work. But I do not have to worry about losing a case. I do not have to worry about business development. So the biggest stresses from private practice are gone.
That diversity of experience is helpful now, because the issues and the parties that come before me pretty much span the human experience.
I am told that sentencing becomes draining. I can see why. Federal sentences are severe. You have to think hard about people who have done bad things, who often have a history of doing bad things. But I don’t yet find it draining. Someone must do this work, and I take satisfaction in doing it thoughtfully and respectfully.
What was the hardest part about winding down your law practice at Godfrey & Kahn?
I liked my work in private practice. But I was leaving to do something exciting and important. The only really hard part was saying goodbye to my colleagues, many of whom had become good friends. I’d like to think that I’ll be missed, but my departure from the firm has opened up opportunities for younger colleagues, who will take over my work quite effectively.
You practiced primarily in litigation and intellectual property law. Will that background be useful? What will be the hot IP issues in your court?
The U.S. Supreme Court has been very active in patent cases in the last few years, so if you like IP law, this is an interesting time to begin work as a federal judge. Although IP cases represent only about 5 percent of our civil cases, they are often difficult cases that command a disproportionate share of judicial resources. A lot of judges think patent cases are dry and difficult, but the Western District has done a great job with them. I think my background will help me extend that tradition. And, yes, I will keep the rocket docket going.
*Geek alert* Substantively, I expect that we will continue to work through the difficulties posed by divided and indirect infringement. Procedurally, we will figure how the new inter partes review (IPR) process will affect district court litigation. I don’t expect to automatically stay patent cases whenever an IPR is filed, but I’ll consider a stay if the parties show that the IPR will actually resolve issues and simplify the district court case. I think the IPR process could be a modest step toward efficiency, but I’m not yet convinced that it will be transformative.
Tell us about the nomination and confirmation process. Was it nerve-wracking? Any suggestions for improving the process?
I applied to the nominating commission because I wanted to preserve the traditions of the Western District. The Federal Nominating Commission set up by Senators Johnson and Baldwin to screen applicants treated me very well. They asked tough questions, all of which were legitimate questions concerning my qualifications, not a political litmus test. I didn’t really expect to get the nomination, so I didn’t feel any great anxiety about the process.
But when I found out that I was being vetted as the likely nominee, I started to feel some stress about being put through a political process while the Senate was so polarized. From application to Senate confirmation was just about a year (which is actually a somewhat expedited track these days). The long process is hard on all nominees, but it is especially difficult to maintain a private law practice once people start to think that you might not be around for the long run. It’s tempting to say that we should somehow get politics out of judicial nominations. But the framers of the Constitution gave the Senate input into presidential appointments as part of our system of checks and balances.
What does your family think about your new position?
My family is very proud of me (as I am of them). I have explained to them that many people treat me with greater deference and respect now. Apparently, they believe their job is to counteract that phenomenon.
Where do you see yourself in the next five to 10 years?
That’s easy: I’ll be right here. I hope to serve the court for a long time, but Judge Crabb’s record (35 years and counting) is safe.