A wrongful death suit against NYPD officers and the city over the 2011 death of an unarmed man in Manhattan was grinding through the pretrial process in the U.S. District Court for the Southern District of New York. In March, after years of pretrial process, the district judge set a trial date in July.
A month ahead of the start of trial, the parties received a note from the court: the case had been re-assigned—not to another federal trial judge in the Southern District, but instead to an alumnus, Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit.
An appellate judge taking on a district trial wasn’t unheard of. Federal trial judges sit by designation in other districts, and regularly appear at the circuit level to participate in the appellate process. Even appellate-level judges have been known to sit at the trial level. An oft-shared story recalls how former U.S. Supreme Court Chief Justice William Rehnquist presided over a 1994 trial in Richmond, Virginia—and found himself reversed by the Fourth Circuit two years later.
Yet, now just weeks away from the start of his latest trial, Chin appears by all accounts to operate in a unique space among his colleagues on the Second Circuit.
“Though it is not that unusual for appellate judges to try the occasional case, Judge Chin is unusual in that I believe he takes a small general caseload, not just trials, and handles the cases including pretrial,” Circuit Judge Gerard Lynch said in an email.
While others have done trial work after being elevated, including Lynch, Chin has continued to be granted designations—four so far, according to the circuit executive’s office—to handle trial court cases since being confirmed to the appellate court in 2010.
“I admire that, because it is not just taking the glamorous and fun part of the district court work, but helping out with the busy trial court workload in the SDNY the way trial judges do for us,” Lynch said.
During a recent interview in his chambers, Chin shared his affection for just such work.
“I loved being a trial judge; I was very happy being a trial judge,” he said. “I enjoy the action of the courtroom. I enjoy the trials. It’s a different kind of interaction with the lawyers and the parties.”
Chin’s elevation to the Second Circuit was of historic significance. At the time his nomination by President Barack Obama was confirmed by the U.S. Senate, he was the only Asian-American appellate judge on active status in the country. On top of this, Chin was keenly aware of the impact he could have on law as an appellate judge.
“If I wrote an opinion it would become the law in the circuit, in federal courts in three states. When a trial judge writes an opinion, it’s just another trial judge’s decision,” he said.
Chin was no stranger to appellate work, having served by designation on numerous occasions. By the time he formally joined the Second Circuit bench, he says he had already written 10 published opinions.
“I had a pretty good idea of what it was like,” he said.
Six months before his confirmation, Chin began sitting at the appellate level by designation. He would carry the equivalent of a full appellate load, while continuing to work through his district docket. He acknowledged it was part out of superstition, given his limbo status ahead of a full Senate confirmation.
“You don’t want to jeopardize anything by giving things up,” he said.
Chin says he made the unusual decision to keep his entire criminal docket, as well as 25 civil cases. Over time, these cases were resolved, leading him to receive a new designation to take on district work—an act not lost on the trial court whenever it occurs.
“The Southern District of New York greatly appreciates the assistance provided by federal judges outside of SDNY in helping manage the court’s high-volume caseload, ensuring that matters are heard in an expeditious manner,” a spokesman for the trial court said in a statement.
Current and former judges who have experienced sitting on the bench at both levels, often by designation, speak of the insight gained by the different environments. Usually, it’s the first-time experience of being part of an appellate panel. But for some, like Chin’s colleague on the Second Circuit, Judge Dennis Jacobs, it was in the other direction.
Nominated to the appellate court straight from private practice by President George H.W. Bush in 1992, Jacobs said his interest in experiencing a case “from the other side of the bench” was nearly immediate upon joining the Second Circuit. When the occasion arose in the Northern District of New York in the mid-1990s, the judge and his wife rented a house on a lake not far from Syracuse.
In advance of his time in the district court, Jacobs said he told his courtroom deputy “not to hesitate” to let the attorneys in the 11 trial-ready civil cases he was taking on know that the New York City judge coming up had never tried a case before.
“He said, ‘Well they’re going to run and settle.’ And I said, ‘I figured that is what would happen, and that I hope they wouldn’t all settle,’” he said during an interview in chambers.
They didn’t. Three of the cases went to trial.
“I wouldn’t say the lawyers were panicked at my advent, but I did notice the jurors were amused that I could not pronounce the name of the county,” he said.
The experience provided him with a better understanding of the kind of courtroom management skills required by a trial judge.
“A lot of what one does as a trial judge has to involve instinct, experience picked up over a long period of time,” he said. “You have to take charge of a courtroom, and you have to do it with confidence and decision.”
While none of his opinions were reversed on appeal, Jacobs said he saw how a trial judge simply can’t have that in the back of his or her mind while doing the job.
“You can’t make dozens of rulings in the course of a day, and worry that somebody is going to rethink it all,” he said. “As is the experience of a lawyer at trial, you just have to keep moving forward.”
Most federal judges experience a new court in the other direction, sitting by designation at the appellate level. Former District Judge Richard Holwell, who departed for private practice in 2012, called his time sitting by designation on the Second Circuit invaluable. Yet, for him, the same could be said for gaining trial experience.
“It’s kind of a perspective that can’t be duplicated by reading a book,” he said.
The life of an appellate judge, by his account, is a “monastic experience”—both for the judge, and for the judge’s clerks. Holwell understood how someone like Chin relished the chance to continue to do trial work.
“The ability to continue to work in the sausage factory of the district court is something that I think he simply enjoys, and his clerks are probably thrilled to be able to do,” he said.
Chin appeared to agree.
“I enjoy it, so I make time for it. My law clerks enjoy the district court work—it’s good for them to have both. They’re experiencing both courts. They don’t mind the extra work. I don’t mind the extra work,” he said.
Working in both courts have provided Chin with the ability to clearly contrast both experiences, which he says he equally enjoys.
“The circuit court certainly requires deeper thinking in the sense that you have the time to ponder things. The legal issues, often, are more complicated. You also are working with others—and that’s a great benefit, in the sense that it’s three people coming together, putting their heads together, and trying to reach the right result,” he said. “Having that feedback and interaction from the other members of the panel is certainly a terrific thing, very helpful to the decision-making process.”
One of the biggest differences Chin notes is the experience with attorneys. Whereas trial judges are in regular, direct communication with attorneys, all communications between the bench and bar at the appellate level are funneled through the appellate clerk’s office. And while trials are full of parts to be managed, from attorneys and their clients, to juries in the box and witnesses on the stand, appellate panels may not even know if the client is in the courtroom. Interactions with attorneys are at arm’s length during the 10 minutes or so provided during oral arguments.
Chin agreed with Holwell that circuit judges can benefit from experiencing the challenges of running a trial. However, he also shares Jacobs’ view that, while beneficial, trial experience is not essential for an appellate judge to be effective. What’s important for both circuit judges is the diversity of experiences available on a panel.
“One of the things that you see pretty quickly is that it’s good to have the different perspectives: it’s good to have the perspective of a trial judge, the perspective of an academic, the perspective of a practitioner,” Chin said. “It’s that collaborative process in getting the different view points and perspectives that I think helps us reach a truer result.”
The well-documented paucity of cases going to trial across all courts has seen Chin dipping into the trial court less regularly in recent years. He also acknowledged that it may just simply be harder to keep up the workload as time goes on. But if circumstances allow, he will continue to keep a foot in the district court world.
“Sometimes there may be a district judge who has a scheduling issue, is on trial for a long time, and has some cases backed up. In those situations I would help out if I could, because I enjoy doing it and it alleviates some of the pressure on that other judge,” he said.