Will Shabaz’s move to senior status slow down ‘rocket docket’?

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Have no fear, speed litigators. Most observers say the “rocket docket” is here to stay – although its velocity might take a slight decrease.

On Oct. 4, in a brief letter to President George W. Bush, Western District of Wisconsin Judge John C. Shabaz announced his intention to go to senior status, thereby lowering his workload, if a new district judge can be confirmed by the Senate before Jan. 20, 2009.

Shabaz is known as the central advocate for the speed with which cases are processed in the Western District. It will be his legacy. That’s the general consensus among a number of practitioners in the Western District.

Shabaz Launches “Rocket Docket”

Among Shabaz’s pre-judicial career achievements was service in the U.S. Congress as a Republican lawmaker, and prior to that, private practice as a sole practitioner. He took the bench in 1981, after being nominated by then-President Ronald Reagan. He became chief judge in 1996 Barbara Crabb is the current Chief Judge.

That when the rocket docket got its start.

Daniel A. Rottier, of Habush, Habush & Rottier S.C. in Madison and a past-president of the Wisconsin Academy of Trial Lawyers, recalls, “We had a tremendous backlog [of cases] when he became a judge. He actually ran simultaneous jury trials, one in the morning and one in the afternoon, to clear his docket.”

Western District of Wisconsin Magistrate Judge Stephen Crocker told Wisconsin Law Journal that, not long after Shabaz got the docket back on track, he began to “preach the word” elsewhere.

“He started proselytizing to other federal judges in other districts, that this was a fair, efficient way to run a court,” Crocker said.

“The response was underwhelming. Even other federal judges are daunted and dissuaded by the level of work and commitment is takes for Judge Shabaz and Judge [Barbara B.] Crabb to do what they do. Maybe it’s institutional; in a bigger court, it’s harder to do, and there are different work styles. So after a while, Judge Shabaz just decided he wasn’t going to preach the word anymore – that he’d stay home and tend to his own garden.”

After 26 years on the bench, he’s never rested on his laurels. Per Rottier, Shabaz works harder than a lot of men half his age, while Crocker points to the large number of dispositive motions on the desks of Shabaz and Crabb at any one time, remarking, “It’s kind of like being on the tarmac at O’Hare.”

Shabaz is additionally known for his stern demeanor on the bench.

“He’s tough and he expects you to know the rules. He expects everyone to be considerate of the jury’s time, and he doesn’t want to waste time. But he’s extremely fair,” says Kevin J. Palmersheim of Haley Palmersheim S.C. in Madison, and a former Dane County Bar Association president.

“Some criminal practitioners say he’s extremely tough when sentencing, but that doesn’t affect my practice. In the civil arena, he’s very fair.

“He’s equally tough on the lawyers. It’s never aimed at the parties, but the attorneys, because they’re part of the system. He’s always very considerate to the parties. And off the bench, he can be very personable.”

Keeping Cases On Track

Robert E. Shumaker, of DeWitt Ross & Stevens S.C. in Madison, and president-elect of the Western District of Wisconsin Bar Association, predicts the rocket docket will remain.

“Judge Shabaz and Judge Crabb have institutionalized procedures for keeping cases on track and avoiding delay. I doubt that a new judge would abandon procedures that keep the court operating efficiently,” he states.

Likewise, Catherine M. Rottier, of Boardman, Suhr, Curry & Field LLP in Madison, and secretary/treasurer of the Civil Trial Counsel of Wisconsin, says that there’s sort of a “culture” that all within the Western District have bought into, that there is some value in having cases tightly scheduled and efficiently resolved.

However, Magistrate Judge Crocker is slightly less optimistic.

“It’s hard to predict what will happen. … Once he’s replaced, it depends almost entirely on who replaces him. If anyone comes in from the outside, of course there’s going to be a learning curve, and everyone has a different style of judging, so it would be difficult to predict what effect that might have. So, it would seem to me that someone coming in from outside the system would not be able to maintain that speed, at least not at the outset, and perhaps not ever. Let’s face it: There’s nobody faster in America in the federal courts than Judge Shabaz.”

Even if the successor is someone who has practiced in the Western District for many years, and is accustomed to the rocket docket, Crocker states that it’s one thing to be the beneficiary of a rocket docket as an attorney, and quite another to be able to enforce it as a judge.

Crocker additionally reminds that Judge Shabaz will remain an active judge until a successor is found, so in the near future, nothing is going to change.

Moreover, there are no guidelines as to how much work Shabaz, as a senior judge, will accept. He may or may not remain very busy. Some senior status judges take one case at a time, to help out their colleagues; others do a workload similar to that of active judges. “It’ll basically be up to him and Judge Crabb.”

Finding Shabaz’s Successor

Crocker says he has not decided whether to apply for the job.

“I have a great sense of commitment to this court. I greatly admire what Judges Shabaz and Crabb have done here. And frankly, I think if I were to apply, it would be the closest thing to a seamless transition that the court, attorneys and the public would see. I’m certainly considering it, but I don’t know,” he states, adding, “I’m sure there are a lot of other qualified candidates who will throw their hat in the ring. … A lot of people have been waiting for years for this opportunity.”

Among them are many experienced practitioners, and possibly a few state court judges as well, Crocker continues. He notes that federal judges are lagging in pay these days, and anyone coming from the private bar might have to take a pay cut. That’s probably not so for someone coming from the state courts, who’s used to the workload. However, he or she would have to learn some federal law quickly, e.g. patent law.

Daniel Rottier says the real question isn’t who will replace Shabaz, but whether anything will get done before the next election.

In recent years, the Senate has not been quick to approve judicial appointees.

Catherine Rottier observes, that, with the atmosphere being as politicized as it currently is, with approval coming from Washington D.C. and a split Congress, it’s anybody’s guess whether someone will be tapped within the timeframe in Shabaz’s letter, or who that person will be.

For his part, Palmersheim says, “It is a concern when it [the selection]
comes down to political ideologies, because we have such a good group of judges in the Western District, that that shouldn’t be the deciding factor.

“It’s frustrating. But I don’t know that it’s any better in the state system, with the governor’s appointive powers to fill out a term, and the virtual inability to unseat a sitting judge.”

He notes that Shabaz probably had his critics in the early ’80s as well – Democrats — who were skeptical about his qualifications because he was a Republican lawmaker, appointed by a Republican president. By and large, those critics were silenced long ago.