While getting ready to pack his belongings from his chambers in Texarkana on March 20 and depart for a new career, now-former U.S. District Judge David Folsom spoke with Texas Lawyer senior reporter John Council about why he’s one of only two judges in 160 years to retire from an Eastern District of Texas bench, why he chose St. Patrick’s Day as his last day as a jurist, and what exactly he plans to do with the rest of his life. The following is a transcript of that discussion, edited for length and style.
John Council, senior reporter, Texas Lawyer: Judge, I think the perfect question for you is: What do you plan do with the rest of your life now that you’ve retired from the bench?
Judge David Folsom, U.S. District Court for the Eastern District of Texas, Texarkana: I will try to address that, and I wish I knew, John. But let me give you a little history on why I chose midnight March 17 [to retire], if I may. I was confirmed along with Judge [Thad] Heartfield on March 17, 1995. I’m not Irish, but my wife is. Needless to say, I have a certain fondness for St. Patrick’s Day now, having been confirmed on that day. I was subject to the rule of 80 [which makes him retirement eligible] on March 12. But I thought it was appropriate to go out 17 years from the day. And, as far as what I’m going to do, I wish I knew. I’m in the process of considering various options. I’ve always had an interest in arbitration and mediation, so I’m considering that option from an independent basis. There are also some arrangements with JAMS, and I’m considering some options in the more traditional practice of law, John. I’ve basically told anyone contacting me in that regard that I don’t have an interest being in the trenches trying cases day to day, but something legally related, as far as consulting and giving advice to someone. I’ve seen a lot of litigation over the last 40 years from both the standpoint as a lawyer and a judge. And I hope to make a decision by early April to mid-May because, as I told you earlier, I don’t handle inactivity very well, and I need some structure to my life, and I hope to make that decision and go to the next chapter in my life, so to speak.
TL: It’s quite rare for a U.S. district judge to just flat-out retire. And we were talking about this earlier — it’s very rare in the Eastern District. The only person that’s done that in recent history was last year, when Judge T. John Ward made the same call.
Folsom: The best Judge Ward and I can determine is that, in the 160-year history of the Eastern District, Judge Ward was the first judge to take full retirement, and I will be the second. So, you’re right. It’s rare that that’s done. Usually judges continue serving after they are eligible for the rule of 80 and take senior status. Almost a year ago, I think you asked me when I first let everyone know that I planned to retire, and I said, ‘About 16 years ago.’ That was always my plan when I went on the bench that, since I went on at an early age — at age 48 — that, when I was 65, I was going to retire and start another chapter. I’m excited about it, and I think it will energize me somewhat, so to speak. But, on the other hand, I’m somewhat apprehensive, since I’ve become reasonably comfortable with this routine over the last 17 years. It’s been a privilege to serve in the Eastern District. People ask what will I miss the most, and it’s the other judges in the court family. We have such a wonderful relationship in the Eastern District. And what I will miss the least — and Judge Ward and I have talked about this — is the necessity of sending people to the [U.S.] Bureau of Prisons. I’ve never enjoyed that. It’s a responsibility that goes with the position but something that I’ve never enjoyed. And I’m happy that that responsibility has now passed.
TL: I’d be remiss if I didn’t mention that you were chief judge of the Eastern District for quite some time.
Folsom: Three years.
TL: And you presided over, arguably, over the largest expansions of the patent docket during that time — it hit its peak. Anything about that that you’re most proud of?
Folsom: As recently as last week, I was on a panel with [U.S. Court of Appeals for the Federal Circuit] Chief Judge [Randall] Rader and [U.S. District] Judge [Andrew] Guilford [of the Central District of California], sponsored by the University of Southern California law school, and I told the audience, ‘I don’t take credit for the expansion of the docket in the Eastern District. I give most of that credit to Judge Ward, who was instrumental in drafting our local rules, borrowing from the rules of the Northern District [of California], and those of you who are happy with that expansion, give Judge Ward credit. And those of you who are not happy, give him the blame, so to speak.’ I guess the absolute high point of my chief judgeship and that docket was the joint Federal Circuit/Eastern District bench bar [conference] we held last September out at the Four Seasons in Dallas. We had Chief Judge Rader down and other judges from the Federal Circuit, and the attendance was about 500 people. It was just such a wonderful event. That was the high-water mark of my career as chief judge — and my service on the Federal Circuit. I was fortunate enough to serve a couple of days on probably six or seven cases at the Federal Circuit. I would probably look at those two events as — not only as the high point of my chief judgeship but also as my career as a judge in the Eastern District.
TL: Anything you wish you’d gotten done as a judge that you just didn’t get around to?
Folsom: Close more cases. But I’m pleased to say I treated Friday, March 16 . . . . as the due date on my pending-motion list and three-year [cases pending] list. Even though you don’t write articles about the April 1 report, I didn’t want you criticizing me that I was a slacker [in Texas Lawyer 's annual Slowpoke Report]. And I’m pleased to report that: zero pending motions for the six-month list and I believe six [cases pending for over three years]. It’s very important to me, John. People have asked me who is going to be handling this docket until we have someone nominated to replace or fill this vacancy. That’s primarily going to be Judge [Michael] Schneider [of the Tyler Division] on most of my Texarkana cases and also Judge Schneider on my Marshall cases. It’s very important to me to leave my docket in the very best condition as possible when I left. So, I’m pleased to say that I think it’s as — about as current as I could have hoped to leave it. I just feel badly leaving Judge Schneider and Judge [Rodney] Gilstrap [of the Marshall Division] with such a heavy caseload — but not so guilty that I’m not leaving.
TL: Now, let me ask you one question now that you’re legally a free man, so to speak. Will you take a patent case in the near future?
Folsom: Not from the standpoint of having primary responsibility. I’d be happy to mediate some, but I’ve reached the age that I don’t want to lay awake at night worrying about the primary responsibility as a lawyer handling that or any other case . . . I believe that’s for the younger guys and ladies.