Q. Chief Judge Grimm, thank you for taking time to talk with me this morning. I would like to begin, by asking you to explain to those who may not be familiar with the Magistrate Judges, just what is a United States Magistrate Judge.
A. A United States Magistrate Judge is a federal trial judge appointed by majority vote of active district court judges of the court to preside over matters assigned by statute and at the discretion of the district judges. The term of appointment is eight years. There is a statutory Merit Review Committee that evaluates the magistrate judges and makes recommendations with respect to merit appointment and retentions.
Q. What is the history of the U.S. Magistrate Judges?
A. The position dates back to the earliest days of our country. Originally they were called commissioners, and their jurisdiction was entirely criminal. These commissioners were paid a portion of the fines that they collected, until the powers that be realized that this practice might not be the wisest way to compensate a judicial officer.
Over the years, the commissioner’s duties increased from doing only petty criminal offenses to having civil jurisdiction. In 1968 Congress crafted the legislation providing for the current system. The current system allows for enormous flexibility in the work of the magistrate judges in both civil and criminal cases.
Q. What is the process by which one gets appointed to the position of magistrate judge?
A. When there is a vacancy in the court, a public announcement is made. Any lawyer who meets certain criteria for age and the number of years practiced may apply. Once that occurs, the merit selection committee which I mentioned is appointed by the District Court that has the vacancy. The merit selection committee screens and interviews the candidates and typically whittles down the number of applicants to five. Those five go to the court, and the court makes the selection. Once that occurs there is a full FBI background investigation.
The term of appointment is eight years. Typically in our court, the number of applicants for each position has been anywhere from 75 to 150.
Q. Can you tell us who is on that Merit Committee and how one gets appointed to the committee?
A. The Merit Committee is selected by the district court judges; it is a very balanced committee in the sense that it will have typically very prominent lawyers in both the public and private sector; in both civil and criminal. In terms of getting on that panel, one could write to the chief judge and express an interest in being considered in the event there is a vacancy. There is no formal application process; the members are selected by the district judges themselves.
Q. And what are your responsibilities as chief magistrate judge?
A. The job is purely administrative. It is mainly to make sure that the assignment of cases is done well. I serve as liaison between the district judges and the magistrate judges. I also serve as the liaison between the magistrate judges and the clerk’s office; and the administrative staff that deals with cases. Occasionally, there are issues with respect to work load; in those cases I would be the spokesperson. I will also interface with, for example, agencies such as the Federal Public Defenders Office and the U. S. Attorney’s Office, in order to try to come up with procedures that allow our offices to effectively interact.
Q. How many U.S. Magistrate Judges are there in our district, and who are they?
A. There are four full-time magistrate judges in Southern Division, four full-time magistrate judges in the Northern Division, and one part-time magistrate judge.
In the Southern Division you have Judge Jillyn K. Schulze, the immediate past chief magistrate judge, who is our most senior magistrate judge. Judge Schulze capably works with Judge Charles B. Day, Judge William Connelly, and Judge Thomas M. DiGirolamo. Judge DiGirolamo is the newest full-time magistrate judge. He does only criminal work; and handles the largest misdemeanor criminal docket in the country.
In the Northern Division you have me as the Chief Magistrate Judge. I work along side Judge Susan K. Gauvey, who is most senior magistrate judge in the Northern Division, followed by Judge James K. Bredar, and Judge Beth Gesner. Judge Victor H. Laws III is more senior than any of us because he has been doing this for many years. He is a practitioner on the Eastern Shore of Maryland, in Salisbury, and he is a part-time magistrate judge. His jurisdiction is exclusively limited to criminal cases.
Q. What is the work and role of the U.S. Magistrate Judge?
A. Each district is free to tailor what the work will be, and determines what it believes to be the most effective way to manage its docket. In our district, historically, approximately 25 percent of the work has been done in the criminal area; that would be handling initial appearances, detention hearings, bail review hearings, issuing search and seizure warrants and other surveillance techniques that must receive approval by a judicial officer, except for actual wire taps which an Article 3 Judge must do.
And because Maryland has the largest misdemeanor docket in the United States, over 11,000 cases a year, due to the large number of federal installations we have in Maryland, every one of the full-time magistrate judges has a criminal docket for which they are responsible. Mine, for example, is Aberdeen Proving Ground. We also have Andrews Air Force Base, Patuxent Naval Air Station, the Naval Academy, Fort Ritchie, Fort Meade, and Naval Station Annapolis. So we all have a criminal docket that we are responsible for misdemeanor jurisdiction.
Criminal docket
Q. Now with regard to the criminal docket, do magistrate judges rotate from court to court?
A. No — what they do is they are assigned a particular bailiwick so that they can have continuity with the prosecutors and court personnel that handle that docket. I have always had Aberdeen Proving Ground. Judge Bredar, Judge Gesner and Judge Gauvey deal with Fort Meade, Judge Day has Andrews Air Force Base, and Judge Connelly has Patuxent Naval Air Station.
Q. And what actually happens at these courthouses on these bases?
A. Well, imagine a Maryland State District Court criminal docket and you would have a good sense of the type of cases we hear. There are a lot of traffic and drunk-driving cases; drug cases; assault cases; and theft cases. In fact, there are a huge number of traffic related cases, including: drunk driving prosecutions; speeding violations; driving on a suspended license; and various and sundry moving violations.
Q. Do lawyers appear before the magistrate judges in these cases, your Honor?
A. Yes. You have both private attorneys who appear and also attorneys appointed under the criminal justice act, where defendants are entitled to counsel under the Sixth Amendment, which would be any time one is charged with an offense for which a sentence of imprisonment could be imposed.
Q. Is it true that the lawyers that appear in these courts are not necessarily military Judge Advocates but could be private counsel?
A. For the defense, correct. You would never have a military defense lawyer, but you often times, because of personnel limits for the U.S. Attorney Office, have a JAG Officer that has been trained and supervised by the U.S. Attorney Office appointed as a Special Assistant US Attorney.
Q. Now, how many cases a year, roughly, are heard in these courts?
A. Somewhere around 21,000 cases a year are heard in these courts. Judge DiGirolamo handles the park police docket, which is the largest docket, with approximately 11,000 cases a year. At Aberdeen Proving Ground we handle somewhere in the neighborhood of about 1,000 or more cases a year, and Fort Meade probably would be 4,000 cases a year. So we have an extraordinary large number of misdemeanor criminal cases.
Q. Are there actual courtrooms on these military bases?
A. Yes, and some of them are not that different from those in the federal courthouse. The courtroom at Andrews Air Force Base is quite nice. They have a courtroom at Fort Meade, which is nice; the one at Aberdeen is the one they use for the courts martial. It is more utilitarian.
Q. Do you have any tips for the lawyers who appear in these proceedings?
A. I think the suggestion that I would give to practitioners is that they need to contact the Special Assistant U.S. Attorney prior to the day of the trial to discuss whether it is going to be a trial or a negotiated plea.
What you have is a docket that is very similar to a Maryland District Court docket; you have dozens, maybe hundreds of people that will show up and you are trying to move the entire docket quickly and efficiently, but also do it the right way.
If the prosecutor has to stop periodically and then have lawyers come up and discuss for the first time how the case will be resolved, it slows up the docket. If they know in advance then the prosecutor can make sure that the docket is constantly moving without delays, because they can take a plea here, they fit in a trial over there and they are able to make the docket move without constant recesses.
Q. Now with 25 percent of the U.S. Magistrate Judges’ time devoted to criminal matters, there is a large amount of time that is obviously devoted to other matters. Can you elaborate and break this down for us?
A. Sure. A number of years ago this court made what I think to be an important decision. It was the philosophy of Judge Motz when he was our Chief Judge that the court should play a major role in aiding the parties in civil litigation to settle cases. He was fond of saying that if the federal court provides the battlefield it needs to provide the diplomatic corps as well. So this court made an institutional decision to devote a substantial amount of the magistrate judges’ time to concentrating on alternative dispute resolution. We do somewhere in the neighborhood of 500 to 700 alternative dispute resolutions a year among the magistrate judges. … Anecdotally it seems that we settle between 75-80 percent of the cases assigned to us for ADR.
Q. Do you have tips for counsel who are participating in Alternative Dispute Resolution presided over by a magistrate judge?
A. The best suggestion I can give is to be as objective in the evaluation of the strengths and weaknesses of your case. Because it is ADR, ex parte letters are requested from each side and the parties are asked to candidly evaluate the strength and weaknesses of their case. If the lawyer does not have a realistic expectation of the strengths and weaknesses of the case that is communicated to the client, then that makes it very difficult. Whenever lawyers come in and say there are no weaknesses in my case, they are either puffing or they don’t understand their case.
The other thing that is absolutely essential is that the process requires that the ultimate decision-maker, the person who needs to decide whether to settle or not, is in the room, to be able to experience the back and forth exchange, to hear the views of a judicial officer who is presiding, and to be exposed to the strengths and weaknesses of the case as pointed out by the mediator.
Trials by consent of counsel
Q. Beyond the criminal and alternative dispute resolution there is still further work that the magistrate judges do, correct?
A. Absolutely. We also receive cases to handle through final judgment if the parties consent to a case being handled by a magistrate judge. In those circumstances, the magistrate judge does exactly the same work as the U.S. District Judge would do. We rule on all dispositive motions, and take the case to trial if it does not settle. The appeal would go from the magistrate judge directly to the Fourth Circuit Court of Appeals.
Q. So a U.S. Magistrate Judge can preside over a trial by jury?
A. Absolutely.
Q. Are there advantages to lawyers to seek a U.S. Magistrate Judge to preside over trial by jury?
A. Yes. In the past few years Congress has greatly increased the criminal jurisdiction of the federal court, resulting in increasing numbers of felony trials that are handled by the U.S. District Judges. This means that a civil case may be ready for trial more quickly if it is assigned to a magistrate judge. The magistrate judge can provide counsel with a specific date when the case will go to trial.
In addition, if I take myself out of the mix and focus on the qualifications of my other colleagues, in my humble opinion, this is an exceptional group of lawyers who have become exceptional judges and I think that the quality of trial you will receive will be first-rate.
Q. Do magistrate judges try criminal jury trial cases?
A. Yes, they do. They cannot try felonies; so the highest level of criminal cases they can try by jury would be a class A misdemeanor. A class A misdemeanor is an offense which the maximum punishment is greater than six months but less than one year. Under substantive constitutional law, whenever you are charged with an offense to which the maximum penalty would be more than six months, you have the right to a jury trial. So, for example, any charge of a controlled dangerous substance, drunk driving, driving while suspended, many of the assault charges, and theft charges allow for trial by jury. I have presided over criminal jury trials as have most of my other colleagues. However, it is a fairly rare circumstance.
Discovery disputes
Q. What percentage of the work of the magistrate judge is focused on the resolution of discovery disputes?
A. Magistrate judges spend a significant amount of time on the resolution of discovery disputes. There are different philosophies. Some district judges refer many if not all of their discovery disputes to the magistrate judges. Others only do it from time to time.
As we get into an era of the new Rules of Civil Procedure regarding electronically stored information, it may well be that some of the issues that are expected to arise will be complex and time consuming, so we will probably get additional discovery referrals, and there will be more work in this area as we learn to deal with these new Rules.
Q. Do you have any tips for resolving discovery disputes in federal court?
A. Practitioners have to recognize that the practice of discovery dispute resolution is different in the state system than in the federal system; and the federal rules and the guidelines we have in our court and the published opinions make it pretty clear what is expected. They should absolutely research to see if there are any published opinions from the judge that they are going to be appearing before; and cite authorities in the Fourth Circuit and in this district, before they cite authority from other jurisdictions. Also they need to assess reasonably the merits of their position, and in good faith try very hard to work with the opposing counsel to get it resolved without involving the court if possible.
Next, counsel should try to make sure that they brief the dispute as succinctly as possible and that they avoid making attacks on opposing counsel. Arguments should generate light, not heat. It is never, and I stress again, it is never helpful to a judicial officer in resolving any dispute, but more particularly a discovery dispute, to have the briefing cluttered up with personal attacks on the motives and character of the other counsel. It never, ever assists the judge in making decisions and it tends to polarize the other side and cause them to spend time and resources of their clients needlessly.
Q. Are there any significant opinions that you authored in the area of discovery disputes which you think the bar could be aided by reading?
A. Yes, I would say that Thompson v. United States Department of Housing and Urban Development, 219 F.R.D. 93 (D. Md. 2003), is a case that addresses discovery of electronically stored information and the sanctions available for failing to preserve such evidence.
Another decision is Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005), which explores the issue of potential waiver of privilege. In addition, there is the case of Sullivan v. Glock, Inc., 175 F.R.D. 497 (D. Md. 1997), which dealt with the disclosures under rule 26 B(2) for experts.
The cases of Musselman v. Phillips, 176 F.R.D. 194 (D. Md. 1997); and McCafferty's, Inc. v. Bank of Glen Burnie, 179 F.R.D. 163 (D. Md. 1998), are instructive in their discussion of privilege issues. The case Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143 (D. Md. 1997), addressed how one asks questions in deposition, and whether you can make speaking objections.
Q. And some of these are covered in your discovery book, Discovery Problems and their Solutions?
A. Absolutely.
Q. Chief Magistrate Judge Grimm, thank you for your time and insight.
A. You are very welcome.