Interview with Jeremy Fogel, September 21, 2017

KASARABADA: So we're here with Jeremy Fogel, district judge for the Northern District of California and currently the director of the Federal Judicial Center. This is Anu Kasarabada, archivist for the Judge John G. Heyburn Initiative here at University of Kentucky Libraries. We're doing this oral history as part of the Heyburn's initiative to document the federal judiciary in general and Judge Heyburn's life and career in particular. Judge Fogel is also a member of the Heyburn Initiative Advisory Board. Judge Fogel, thank you so much for taking the time to talk to us today.

FOGEL: It's a real privilege to do this.

KASARABADA: As you know, the Heyburn has several major objectives. But today, I want to focus on two of them. First, of course, is Judge Heyburn himself. We'd love to hear your memories of him and to understand your relationship with him in detail. The second thing that I want to talk about today is I want to learn about the federal judiciary, mostly by learning about your professional career 00:01:00and your directorship at the federal judicial center, because I think that provides a really great angle into the institution. Okay?

FOGEL: Sure.

KASARABADA: So let's start with Judge Fogel. Err, excuse me, Judge Heyburn, tell me about how you first met him.

FOGEL: Well, you know, the interesting thing is I did not know Judge Heyburn for that long. I met him in 2011 when I became director of the FJC. And, you know, he passed away not too many years after that. So the length of our relationship was not particularly great, but the impression that he made on me was really quite significant. That's one of the reasons why when Martha Heyburn asked me to get involved in this, I was very happy to do it. John was a very impressive person in many ways. He was a very, very good judge. And that was something that people in the community in Kentucky certainly felt and people around the country felt. So just at the basic craft of judging, he was, he was thorough, he was 00:02:00intelligent, he was conscientious. All the things that you'd want from a district judge. He also was, was very brave. And by that, I mean he did not shy away from making tough decisions. One of the things that certainly stands out in my mind was when he was assigned the same sex marriage case in Kentucky. And that's not a, a wouldn't, it was not an easy case for a Kentucky judge to handle, given the feelings in the community and the fact that it was a controversial issue nationally and the way that he proceeded and the way that he analyzed the case, and I'm not commenting on the, the outcome, I'm not commenting on the decision he made as much as the fact that he made a hard decision. He made a decision that was not the easy way out that took, um, it took someone with courage and a real commitment to the rule of law to do what he did. And it's, it says a tremendous amount about his character.

KASARABADA: I was really struck by his opinion in that case, the way that it spoke to Kentuckians in particular. He knew he had to explain in a way that critics may understand. And I thought he did a wonderful job of that. And the particular focus that he placed on being considerate of what this could mean to his own community.

FOGEL: I couldn't agree more. And I think that's a very good way of saying what impressed me so much about it. It wasn't just that he went against the tide in his community, it was also the way he did it. That he took the time to explain. He was respectful of people who disagreed with the outcome. It was the kind of big vision that I always hoped for in judges. And they think that the community should hope for in judges, that he understood how important the case was. He understood that a lot of people would disagree with what he did. And, and he didn't just do it and say, well, this is what I'm doing and you have to live 00:04:00with it. He took the time to explain. He recognized the way people felt and and, and articulated his reasoning in ways that were very relatable and transparent. So I think that was a real tribute to him as a judge and as a craftsman. Um, the other context in which I knew him, though, really was not judging so much as it was judicial administration. And that, that's my role at the FJC. I have one of the three offices that are created in, in the law for administration of the federal judiciary. And my job is to run an agency that, that manages research and education for the judiciary. And in that capacity, I meet people who chair the various policy committees of the judiciary and interact a lot with the national leadership of the judiciary. And by the time I got there in 2011, John Heyburn was already a legend. He had been the, the chair of the Budget 00:05:00Committee, which may be the toughest assignment that there is because you're always trying to get Congress to appropriate the money we need to run the courts and at the same time, you have to be respectful of all of the other priorities that Congress has. It's not just a question of going there and saying, you know, give us what we need.

KASARABADA: Right.

FOGEL: You have to be able to explain what we need. You have to be able to explain all of the steps we've taken to keep our own costs under control and to be good stewards of the money that we get. And you have to have good relationships with Members of Congress. They have to trust you. They have to believe that when you tell them it's something that they can rely upon. And in my career, I think we've had two chairs of the Budget Committee. That's a job that nobody and I've been a judge, a federal judge for, for almost twenty years. It's a job that people once you know that they can do it well, they don't leave. And--

KASARABADA: I think he was appointed in 1994.

FOGEL: Right.

KASARABADA: And he became chief in 2000 or 1998, late nineties, I believe.

FOGEL: That's right. And he was the chair of the Budget Committee for, I think close to ten years, did a great job for the judiciary. And I think it isn't just again, it's like, it's kind of like what we were just talking about with, with the same sex marriage decision. It's not just the end result. It's how he did it. He did it by, by establishing relationships, by building trust with people, by being somebody that people could really count on. And, you know, if John says that, then that's something I can rely upon.

KASARABADA: How did he do that? I mean, what, how did he build this, really?

FOGEL: I think it was just his personality. He was honest with people. He was, was transparent. He was respectful of differences. I mean, those are the things I noticed. And then and then where I actually got to know him was not when he was chair of the Budget Committee. But was, when he became the chair of the Judicial Panel on Multi-District Litigation, which was the other major federal 00:07:00judicial office that he had, and the MDL panel, that's what we call it, Multi-District Litigation Panel, is responsible for managing the biggest cases in the federal system. There are cases that tend to have typically there are cases involving product liability, but sometimes they involve things like securities fraud and, and other kinds of consumer issues that have national impact. And you get cases filed all over the country and then they need, they need to be coordinated, and they are coordinated, by this panel that, it was set up to manage these cases. And sometimes you have hundreds or thousands of cases that are all coordinated and assigned to judges that are selected by the panel. And so you can imagine how much business comes through there and how important those cases are in terms of impact on people. And John was the chair of the, of the panel. And, and that's actually how we work together most directly. We plan 00:08:00the educational programs together. We talked about the best ways to prepare judges who are handling these big cases to handle them. We talked about all of the pitfalls that judges face when they handle cases like that. We talked about the importance of federal-state coordination, because sometimes you have similar parallel actions going on in state courts, and you have different cultures in the federal and state courts, and they don't always get along well. So it's a job that requires a tremendous amount of management ability. You have to be able to really understand complex situations and understand the different agendas and motivations that people have and deal with a multitude of personalities. And he did that as, as chair of the panel, and he did it extraordinarily well. And that's really where we got to spend time together, where we would grab lunch, or we would talk on the phone or, you know, just kind of have more meaningful one 00:09:00to one interactions. And my experience with him, as he was always somebody I could say, well, I'm talking to a really substantial human being here. You know, this is somebody who's really thinking about all the dimensions of the problem. And I remember as one of them, as one of the times that something happened, and I don't need to get into the details, but there was a some, some issues having to do with who is going to be running education programs. There were some outside entities that wanted to do programs about MDLs, and they wanted to use the federal judiciary as a participant in the programs without, without necessarily them being the kinds of partnerships we were seeking and, and John was upset about that. And I remember we had a conversation one day where he was really just very candid with me about the things about it that bothered him. But, but it was, it was always appropriate. It was always on point. You know, he 00:10:00was honest. It was, was like, let's, we got to solve this problem. We got to figure this out. And I just had tremendous respect for him. I think he was a very, very strong member of the federal judiciary and left, left a great legacy.

KASARABADA: And he sounds like he was very involved. It wasn't just when you're in a management position, it's often you need to delegate things or you want to delegate things because you need time to focus on other issues that may be coming up. But it sounds particularly from anecdotes--

FOGEL: --um-hm--

KASARABADA: --such as you just described. He was very involved in the decision making process.

FOGEL: Yes, he was in, and a number of other judges who served with him on that panel are people I'm also friendly with and have continuing contact with. And they all really thought so highly of him. They were, they were very sad when he, when he passed. And they were, they were very appreciative of everything that he did. And I think the federal judiciary is, is full of people who, who you 00:11:00admire. I mean, they--you don't get to be a federal judge that easily in the, the--to really distinguish yourself in that group is, is I think you have to be even more capable, I think, in general, and then to be the kind of person that everybody says, yeah. You know, that person was really made a contribution and person somebody that, that really left a mark. And I really don't know anybody who would not say that about John Heyburn.

KASARABADA: So working with him, as while he was chair of that MDL panel. It was. Would you say it was about translating what the panel does into education materials?

FOGEL: Yes,

KASARABADA: That could help--

FOGEL: --right--

KASARABADA: --transferee judges or new judges--

FOGEL: --right. That was our, that was our role--

KASARABADA: --right--

FOGEL: --in working with them was, was to use our educational resources to help 00:12:00the panel do its work.

KASARABADA: So it can be pretty difficult to boil down or simplify a really enormous, complex undertaking like MDL litigation to into, you know, digestible, um, reports--

FOGEL: --yep--

KASARABADA: --or curricula.

FOGEL: That's true. I think it's true that that's one of the challenges. Another challenge is because these cases are so significant in terms of the amount of money involved in the number of lawyers who were involved, the impact that they have on the public. There's a lot of politics around these cases and it's, it's, I mean it in this small "p" politics. It's not partisan politics. But, but, you know, there's been a tremendous amount of academic study of, of MDLs and criticism of MDLs, because they don't, unlike class actions, for instance, they don't have specific rules that govern them. They, they, they are a creature of statute. But--

KASARABADA: --it's really the panel--

FOGEL: --right. The panel figures out how, how the cases are going to be 00:13:00assigned and in the way that they're managed really varies for us from assigned judge to assigned judge. So, so it's a hot topic in academia. And there's a lot of groups who would like to see them go one way or another. And so part of being the chair of the panel is not just managing the assignment of cases, not just figuring out, along with the FJC, what kind of education to do. But, but it's also figuring out how to deal with the various currents of, of interest groups and what the cases to be handled in one way or another. And it could be a plaintiffs group. It could be a defense group. It could be academics who were critical of the process. I mean, there's a lot of that kind of small "p" politics around MDLs, and the chair gets, and gets caught in the middle of that. Not, not--

KASARABADA: --how did the judge handle that?

FOGEL: Well, I thought really quite deftly, that the story I told a little while 00:14:00ago about the time that he called and was upset and we were just trying to process. I mean, I think that's what he would do, is he would, he would talk to people, he would talk to colleagues about, you know, we had a problem. How are we going to deal with this problem? What's, how do we think our way through the problem? So it wasn't like he said, you know, he was kind of sitting there, he knew, always knew the answer, but what he did is he, he would reach out to people he trusted and people he worked with and say, you know, I'm, I'm trying to figure this out. I want to do the right thing.

KASARABADA: So what kind of end products did you create with his help? Reports. Curriculums I mentioned

FOGEL: Well, wasn't so much reports. What, what we have been doing and we've done it with his successor as chair is to get more into teaching judges the skills of managing these, these major cases that, that it isn't just a matter of knowing the law. It's knowing the law is important. And there's a lot of law to know.

FOGEL: But it's really a skill to manage something of this magnitude. And there are pieces of that puzzle. How you choose lead counsel, how you compensate lawyers, how you deal with communications between lawyers, how you deal with the various parties, and make sure that if you have tens of thousands of plaintiffs that are part of an action and how you make sure that those people get some kind of process and that they get fair notice that their interests are taken into account. And if you have diverse interests within a, within an MDL group, you know, how you, how you deal with those conflicts, how you handle discovery. I mean, there's, there's probably could, probably reel off twenty or twenty-five problems that come up in a typical MDL case. And so what we are trying to do now 00:16:00as we speak is, is really flesh out the skills that you need to do those things. I mean, how do you, what question do you need to ask? How do you, how do you go about solving those problems? Who do you enlist to solve them?

KASARABADA: Was there a particular skill set that Judge Heyburn was particularly focused on developing in new judges?

FOGEL: Not, not that I, it wasn't that. I mean, I think, I think, you know, the, the role that he played was recognizing this was something that needed to be done. I think a lot of the, the articulation has happened since, since he passed that. But somebody had to recognize, somebody within the hierarchy of the panel, had to recognize that this was an important job, that it was something worth doing. And you don't just, you don't just bring the judges who have MDLs together every year and say, you know, thank you for your service. I mean, that's, that's important, too. But you want to help them. You want to equip them 00:17:00with that with the tools. And that's something that he recognized. And it was very important institutionally that he recognized that.

KASARABADA: So he was really one of the first people to say this needs to be taught, not just done.

FOGEL: Right. He was very receptive to that. I mean, it was, may have been the first conversation we ever had, really, other than just to say hello. And it was at an MDL conference. And, you know, he wanted to know what some of my goals and objectives were at the FJC. And I, you know, I have a background, which I'll talk about later about, in adult education and, and the, the, the idea that adult learners really do better if they are learning skills and more than just kind of cramming knowledge into their head. And, and he was really receptive to that. I mean, it was a good it's a good conversation. He was interested and supportive.

KASARABADA: Yeah. I think that mel--melding of subject matter training with skills or focusing on skills rather than just training on the facts of something.

FOGEL: Right

KASARABADA: It's a really difficult thing for a lot of people to understand.

FOGEL: Yes.

KASARABADA: Feels like you are not giving, you're not really teaching the thing.

FOGEL: It's you know, you're right. It goes back to law school. I mean, most of us lawyers went to schools where we were taught, you know, in the old fashioned way with a lecturer down in the pit or up on the stage. And we were taking notes, and we were afraid we were gonna get called on and on. You know that kind of thing, but it was really not an interactive process at all. It was one where you are just supposed to absorb what the, what the wise teacher is teaching you. And there is value in that. I mean, especially if you, if the person's a good, good lecturer and they keep your interest. But, but all of the data I've seen, and this is good in multiple studies going back for decades, is that the retention at that, in that mode is not really very high. That, that even if it's 00:19:00a great lecture, you know, you're listening, you're taking good notes and everything, your retention is something on the order of ten percent of what you hear. And I think most of us know that from the, you know, the, the exams that we had to take later.

KASARABADA: Yeah, that sounds familiar,

FOGEL: But on the other hand, some of the participatory learning where you actually have to do something is much stickier. People remember it much more. And the more you do, the more you actually have to practice what you're learning, the more you retain.

KASARABADA: And Judge Heyburn was somebody who would--

FOGEL: --he was very, yeah, I wouldn't I wouldn't say, you know, I don't recall that this was something that he was particularly focused on when we met, but it was something that he understood. It was something that when we talked about it, he was really receptive to. You know, it wasn't oh, you know, we just want to have these famous professors come and give lectures, you know, that I think it 00:20:00was that sort of practicality that was one of his traits. You know, we want this to work, you know, and we want, we want to identify what the problem is, and we want it to work. So I always felt he was a good partner in that sense.

KASARABADA: It does seem to me that Judge Heyburn was interested in education himself--

FOGEL: --yes--

KASARABADA: --right. Working with the FJC on these materials--

FOGEL: --right--

KASARABADA: --um, judicial education, but also civic education--

FOGEL: --right--

KASARABADA: --about the role of the federal judiciary.

FOGEL: That's true.

KASARABADA: Did you all ever talk about that?

FOGEL: We didn't. But I'm aware of what he did. You know, as I've learned more about him and what his role was in the, in the committee, uh, community in Louisville and in Kentucky generally. I mean, I--it doesn't surprise me to learn that that was something that he did because it was consistent with the person that I knew.

KASARABADA: I want to go back to the anecdote that you shared about--he called because he was upset about something that was going on. You know, how often did 00:21:00you talk to him about MDL or talk to him about what was going on in judicial administration?

FOGEL: The number of times? I mean, not, not.

KASARABADA: Was it a regular thing?

FOGEL: No, it wasn't. It was more it was more driven by circumstances--

KASARABADA: --um-hm--

FOGEL: --I mean, we would see each other at a judicial conference meetings which occur every six months, and we would see each other at the MDL gathering that occurs every year.

KASARABADA: Um-hm.

FOGEL: But, you know, they were not, there would be other opportunities if there was an educational program happening or if there was an academic gathering happening or there was something where the issues I was describing earlier would tend to arise.

KASARABADA: Um-hm.

FOGEL: You know, that's where we would talk. So it wasn't like we talked all that frequently. It's just that that when we did, the conversations were of a really good quality, you know, that it was you know, they were substantial, serious conversations.

KASARABADA: You mentioned that you, you feel like he had a strong impact on you--

FOGEL: --yeah, I just think he's, you know, I feel one that, one of the--I mean with this job I have now is without question the best I've ever had. I just love the, I love the opportunity to interact with judges around the country and meet such a wide variety of people and help them think about education. And, and, you know, in even in that constellation of people, with John Heyburn, it was very memorable. And I think it was for all the things I've mentioned. He was, he was conscientious, he was smart. He was very good with understanding differences and being respectful of differences. He was brave. He was ethical. Cared about the community. Invested a lot of his time in the community. Those are tremendous qualities for a judge to have.

KASARABADA: And it sounds like he was also sensitive to the needs of what judges 00:23:00needed to learn over the course of their career--

FOGEL: --right, right--

KASARABADA: --their knowledge could not be static or just things could not just be thrust on them. For example as assigned judges.

FOGEL: You know, that's, that's true. He, he was, he understood that we all were constantly dealing with new situations and we need to respond to them appropriately. We do. We know we can't just kind of do the tried and true thing and have to have our minds open to learning. So, you know, he was a, he was a really, really solid guy. That's the best way I can, I can put it, you know, somebody, I was always happy to interact with.

KASARABADA: That's often a high compliment--

FOGEL: --yeah--

KASARABADA: --in itself. I want to shift gears a little bit here and talk about you.

FOGEL: Um-hm.

KASARABADA: Okay. Tell me about yourself.

FOGEL: So I am a native Californian. I was born in the San Francisco Bay area. I have lived there most of my life. In a short period, I lived in Southern 00:24:00California. But I mean, I've lived on the West Coast pretty much my whole life other than the three years I went to law school on the East Coast. And, um, one of the things that I suppose makes me somewhat unusual among judges is that I never thought about being a judge. I never even thought about being a lawyer until fairly far along. My, um--

KASARABADA: --I think you were religious studies--

FOGEL: --yeah. That's right. My background was in religious studies. I was very interested in that. I'm still interested in that. I mean, that's, that's a, that's a passion that has never faded. Um, and I thought about staying in that area. Probably as an academic. That was the particular threat of that, that I was interested in. And, you know, I grew up in the, in the late sixties and early seventies, it was a very turbulent era. And somehow I just felt at that 00:25:00point, and I think it was the right call, that, that just working on a college campus and, and, and being an academic and in doing the work that academics do was, was probably not the best way for me to go. Not that there was anything wrong with it, but just trying to, you know, knowing myself that I'm more of a people person, I'm more, want to be out and interacting with people. And, and it seemed a little bit too cloistered and--

KASARABADA: --it seemed that way in the sixties and seventies? Really?--

FOGEL: --it did. Yeah it did, yeah it did. And, and so I was trying to figure out, well, what can I do that would sort of allow me to do good works in the community that, that, that would honor the values that drew me to religious studies and law seemed like a very big tent. You know, honestly, medicine did, 00:26:00too. But I didn't have the quantitative skills to be a doctor. I never could pass the courses that would be necessary to get into medical school. So you know that one went off the, off the board. But I mean, some kind of, some kind of service profession and law, law seem to be big enough to, to incorporate that. So--

KASARABADA: --did you have an idea in law school about how you wanted to use your law degree--

FOGEL: --other than what I just said? You know I mean--

KASARABADA: --anything specific?

FOGEL: No, not, not really. I wanted to use my law degree in a way that would add value to the world. I mean, it was, it was very much a social good aspect to it. I mean, that was what drove me. It wasn't making money. It wasn't being famous or powerful or anything like that. It was really pretty much I wanted to do service in some way. And, um, and what happened was when I was in law school, 00:27:00I, I found law school kind of intimidating and cold. You know, it wasn't like I was fascinated by the law theoretically. It wasn't that, that was sort of the competitiveness of law school was not, not very attractive. And so, so I got a job working at a crisis intervention center. It was a sort of--I started as a volunteer. And then I became a regular there. And, um--

KASARABADA: --was that the mental health--

FOGEL: --no, that was before that. That's what led up to the mental health projects. So this was, this was a facility and in a very nasty neighborhood in Boston that has been gentrified since then. But it was basically dealing with a lot of drug problems. And so I was working at night handling the phones. People 00:28:00would call in and they would be suicidal or they would be having a bad experience with drugs or something like that. And my role was sort of the triage kind, of getting identifying what the problem wasn't getting. Getting people the right kind of help. And it was really quite a transformative time because, you know, it's life in the raw. You know, you're dealing with people at two o'clock in the morning who are crazy, right? You know, and just having to, having to figure out what you're going to do with them and, and then going from that, to contrast, class at nine o'clock in the morning, you know, that, that's the contrast was, was, was remarkable. But it made me very interested in doing more work in mental health. And I got an assignment. I was still in law school, but I 00:29:00was able to get academic credit in the assignment to work in a, in a mental hospital, in an outpatient unit. So I got some exposure to people who were really having a hard time. Best, just the best way to put it. And so when I graduated and got my law degree, I wanted to continue working with that population. And I moved back to California. And for a couple of years, I worked in a small law firm in San Jose. That was pretty much a community based firm, did a lot of work with, with, with community groups and, and poor people and housing discrimination, just a variety of things like that. And, and then I got a grant from the American Bar Association originally and then one from the National Institute of Mental Health to set up a legal services program for 00:30:00people with chronic mental illness. And that that's the Mental Health Advocacy Project. And that was nineteen seventy-eight that that project got going. And it is going to celebrate its fortieth anniversary next year. So--

KASARABADA: --that's incredible.

FOGEL: It's just kind of a, it's a, it's like having another child. I mean, I have two wonderful children. But this, this is--my first child was, was M-HAP, as we call it, you know. And it survived all the ups and downs of government funding cuts and everything else. But--

KASARABADA: --what was the state of mental health advocacy at the time?

FOGEL: So this, if you remember, was--there had been an era where anybody who was chronically mentally ill, mentally ill was just locked up in a big mental hospital. So the One Flew Over the Cuckoo's Nest--

KASARABADA: --um-hm--

FOGEL: --example, and there were lawsuits brought by people sort of five or six years ahead of me who challenged the constitutionality of that kind of confinement. And they won many of the suits. And so what happened was that the 00:31:00states closed the mental hospitals. But most of them didn't provide community services to assist the people who were released. And, and, you know, not to be critical was I think those lawsuits were very important. But I don't think the consequences necessarily were thought through like what was going to happen to those people--

KASARABADA: --right--

FOGEL: --well, when they get out and--

KASARABADA: --they still needed care--

FOGEL: --yeah, they still need care. They, they were not able to be free agents. It wasn't like they were, they were people who were capable of functioning any better on the street without some kind of help. So the state of play in nineteen seventy-eight was we had a lot of people in the community who had been released from mental hospitals, and there was a large community. In fact, that's where we set up our office of board and care homes and group homes, where people were living basically on SSI Social Security 00:32:00checks. Some of them were getting medication, some of them weren't. The community mental health services were not very robust. And these folks kept getting in all kinds of trouble. You know, they, they would have criminal problems, and they get arrested for, for things. They would have very, very hard time finding housing other, other than these substandard facilities. They had a very hard time finding work because of their disabilities and because of discrimination. So that was the kind of stuff we got involved in, was helping people get, get the care that they needed, to make sure that the care was appropriate, that they weren't just getting drugged in a, you know, stupified state, getting help with, with finding work where they were capable of working, getting job training so that they might be able to hold a job at some point, getting the benefits that they were entitled to. So, so that was the, the law 00:33:00part of it. But what was really interesting about our model, and what we pitched to the National Institute of Mental Health, was that we aren't just going to be like legal aid lawyers and go into courts and say we're going to, we want these benefits without respect to try to think about the whole person, and what they needed to progress. And a lot of times what they needed to progress was, in addition to having the food and clothing and shelter and so on, they needed their, their care to be up to, you know, they needed to develop social networks. They needed, they need, they needed more of a, of a social approach. In addition to the legal help. And so our model was, was combination. We had people on our staff who weren't lawyers, who were more skilled at just dealing with people. One to one in psychology, psychology backgrounds or mental health backgrounds or social work backgrounds where they could, they could assist people. The idea 00:34:00always being empowerment, that the benefits are a way to build more empowerment, more, more ability to function. So that was, was a model that I think really is appropriate, not only in mental health, but in a lot of other areas. You can see it now and in some of the re-entry courts that are popping up around the country. Some of the specialized courts for, for, not only for drugs, but for veterans and mental health courts around the country that this social work model is, is a, it's more holistic, it's a bigger set of concerns than you would get from a traditional legal approach. And so it really was great in the sense that I had been ambivalent about going to law school anyway. And here was a way that I could use my legal training, but also bring in these other interests I had, you know, wanting, wanting to serve people who were, who were really struggling 00:35:00with their, their mental status. And so it was a very, very fulfilling job in a lot of ways. It was very hard. It was--I teetered on the edge of burnout many times because, because some of our clients really were having a hard time. And the, the communication skills that taught me have stayed with me my whole life. I mean, sort of to be more specific about that, when you're talking to somebody who's delusional. You know, you can't have that kind of conversation we're having now. I mean, you have to listen, and they're going to tell you things that make no sense. And, and instead of just arguing with the delusion, which is impossible, you know, no, actually, there were not little people inside your head. You can't, you really can't have that conversation. But what you can do is you can ask a lot of questions. What's going on? You know, it sounds like, you 00:36:00know, these people were there last week. So, you know what happened between last week and this week? You know what? What? What's going on? How's your, how's your home life? How's your, how's your love life? You know, how's your--what's going on with your, with your friends? What's with your work? And, and, and so you would develop a kind of trust sort of beneath the top line conversation--

KASARABADA: --um-hm--

FOGEL: --and, and sometimes that would allow you to make a suggestion or say, you know, you know, I should probably go talk to your doctor about your meds, you know, or something like that. You know, that, that you could after a lot of listening and a lot of asking questions, you could, you could gently nudge somebody in a direction that might be helpful.

KASARABADA: So you really have to see that person--

FOGEL: --yeah--

KASARABADA: --as a person--

FOGEL: --yes--

KASARABADA: --rather than a client or--

FOGEL: --yes--

KASARABADA: --somebody with a particular issue.

FOGEL: Precisely. You have to get out of the box, which our law school education so laboriously taught us. You know, these are the--

KASARABADA: --you are almost going against exactly what you were taught--

FOGEL: -right. These are your obligations as a lawyer.

KASARABADA: Exactly.

FOGEL: And this is what the role of a lawyer, and this is their client. And you don't lose the, the key one, which is as a lawyer, you're, you're there to advocate for the, for your client's interests, not for your interests.

KASARABADA: Um-hm.

FOGEL: It's not, it's not a parental role. You know, it's not if you don't override their, their interests or their judgment. But in order to get to a definition of interests that has any utility, you know, you have to, you have to ask a lot of questions. You have to listen, and you have to use skills, communication skills law schools simply don't teach. They still don't teach it. It's one of my kind of ongoing arguments sometimes.

KASARABADA: We're gonna get to that--

FOGEL: --yeah, we will--

KASARABADA: --well, we're definitely gonna get to that--

FOGEL: --yeah, yeah--

KASARABADA: --but so, it sounds like you love this. It was--

FOGEL: --yeah--

KASARABADA: --hard. Difficult. I imagine you were drained--

FOGEL: --oh, yeah--

KASARABADA: --every day--

FOGEL: --right--

KASARABADA: --but you loved it. So why did you leave to become a state court judge?

FOGEL: Well, that was a combination. So in addition to just the hard client work, I also had to be a, a manager of a legal aid office and had to do a lot of grant writing, a lot of fundraising, personnel management. And they, just things like that--

KASARABADA: --the paperwork--

FOGEL: --the paper, and all the paperwork, right. We had one, I think at the peak of the time I was there. You know, we had fifteen people working there. And, and so I think, you know, the combination of all of that really was very stressful. I was really happy that I didn't have any young kids at home at that point because it wouldn't have been fair to them. I think part of it was that I wanted to have a family and knew that and felt basically my job was simply too stressful. And I didn't see, I didn't see a way to make that better. And I also 00:39:00realized that, as you know, having, being an advocate, that, that I actually was much better as a neutral and as an advocate for one side, you know, that I always kind of found that when I had to advocate for a client and, and, um, that role, the loyalty that I owed the client, caused me to not understand the needs of the other side because they weren't my client, right? I mean, they weren't the person I was responsible for. That there was something about the adversary system that, that was, sometimes made me feel out of place and I thought, you know, I'm learning a lot about how to listen and how to problem solve and how to mediate and, and maybe going forward this is something I ought to look at doing. And then the other thing is it was just it was opportunity that California had a 00:40:00governor then who was looking for unconventional people to appoint to judgeships and was just trying to diversify the bench and a lot of different ways--

KASARABADA: --um-hm--

FOGEL: --and I had a couple of things going for me. One was this, this background in mental health advocacy. And I was pretty well-known in my community. I mean, I had developed a pretty--San Jose is, you know, now you think of San Jose, you think of Silicon Valley and you think of, you know, the tech industry and so on. But back in those days, it was still slightly overgrown agricultural town. You know, it was, it, it's changed enormously. And it was--

KASARABADA: --I can't even picture it--

FOGEL: --no, I know. It was, it's very hard. I mean, it used to be orchards and, and canneries and, and so it's still there. You know, in the late seventies, early eighties. Silicon Valley didn't really hit until the later, in the later, in the eighties. And it was always a small legal community. It was just a small 00:41:00community, period. I had been on a couple of county and city commissions. I knew a lot of people in bar. And so even though I was young, I was not an implausible judicial candidate. And so, so there's sort of confluence of, of an opportunity and having done the work I did. And I knew somebody in the governor's office who was in a position to help me. And so it happened, you know, and it was, it was something that I don't think I even thought about doing until, you know, six months or so before it came to be. Um.

KASARABADA: I thought it was interesting--

FOGEL: --yeah--

KASARABADA: --that you became a supervising judge for mental health issues--

FOGEL: --yeah that was, that was later--

KASARABADA: --so what was that? Now you're suddenly looking--

FOGEL: --yeah, well--

KASARABADA: --from those same issues from a different perspective.

FOGEL: So, so I'll tell you a little bit about what led up to that--

KASARABADA: --sure.

FOGEL: When I, when I started on the state court, I did nothing but criminal 00:42:00for, for a long time. First, first five years. And that was interesting in its own way. It just, it was an exposure to a community I really hadn't dealt with before. And the whole criminal justice system and all of its pros and cons and was, was a great way of expanding, expanding my relationships, I guess is the best way to put it. And then I got to know people on the defense side. I got to know prosecutors. I got to know police officers. It was just a, was, it was a way of growing, I think, and learning how to be a judge, learning the craft of judging, which I really attribute to those first five years or so. And then I did family law for, for several years and all of the mental health background was very important there because, you know, you see people, even if they're ordinarily in perfectly, quote unquote, "normal" shape, you know, when they get 00:43:00in a contested family law matter, it's, it's totally different. I mean, they, they, they lose their minds. And--

KASARABADA: --it's a very emotional--

FOGEL: --it's very emotional. And so dealing with emotion was not, not--

KASARABADA: --they don't teach you that in law school? (both laugh)

FOGEL: No, no. And some people have a very hard time with it. I mean, they just have a hard time with a lot of people who become lawyers. And there's some very interesting research on this, that, that a lot of lawyers become lawyers, whether it's conscious or unconscious, because they're not comfortable with intense emotion. It's just, it's just, it's a self-selection almost that, that happens. And there's plenty of intense emotion in family. And so then after I did family, then, then the presiding judge of our court at that time asked me if I wanted to set up this mental health calendar. And so, yes, to get to your question, and it was, it was quite an interesting experience seeing it from the 00:44:00other side. I mean, doing these conservatorship proceedings. And, you know, it was, it was challenging.

It was rewarding in the sense that, that when the cases came in, I felt that I understood where the, the people were. I mean, the people who were the subject of the conservatorship proceedings and a pretty good sense of what their lives were like, what the reality was like. And that really helped. It allowed me--because these are non-jury proceedings--and so I can talk to the witnesses. I could talk to the doctors who were recommending something and say, well, I'm not questioning your medical judgment, but I mean, you know, what do you--I could ask intelligent questions about the behavior of the person that they were diagnosing. And, and um so, yeah, it was, it was interesting being in that chair. It was also humbling. I made a couple of bad calls. I think one of the 00:45:00things when I, when I, when I reflect on my judicial career, I mean, there's a lot I'm very, very proud of. But one of the things that, that I tell new judges is you are going to make mistakes. You're going to, you're going to have a case where you do something and it's going to go really badly. And not, not for any lack of trying on your part. You know, not, not because you didn't give it your best shot, but just because that's the nature of the business. You know, I had a couple of custody cases in family where I gave custody to or access to a parent who later hurt the child. And I had a mental health case, that I will never forget, where I released somebody, and then the person killed themselves in a couple days later, you know. So, you know, those kinds of, you don't, you don't forget those things. And they, they happen to us, you know, and it's one of 00:46:00those things that is, as dedicated you are, as hard as you work, as, as, as focused as you try to be, you, I promise you, in a long career, you're going to make a mistake. You're going to do something that you really regret. So that was another part of doing the mental health calendar than that that I remember.

KASARABADA: How was your mental health, doing that?

FOGEL: Um, it was okay. You know, we'll talk about this a little bit later, about what I'm doing in education. But one of the things I learned is that you can't not be affected by what's going on in the lives of the people who are appearing before you. So when I was doing family, and I saw so much dysfunction and so much painful emotion, you know, you have, you have to do something with 00:47:00that. I mean, it's, it's, it's affecting you to be in that environment, you know, and you can do, you know, there are various ways of coping and you can go out and go for a run or you can, you can drink (laughs) or you can do it every--

But, but I mean, it took to really process it, you sort of have to notice how it's, how it's winging you, you know, how it's--one of the ways I noticed was that it made me want to go home and hug my kids.

KASARABADA: That's a very positive way--

FOGEL: --yeah. That's a positive one--

KASARABADA: --result, yeah--

FOGEL: --you know, my kids were young then. But it just made me really want to take care of my family because I could see what would happen, you know, if I didn't. When there was a year, it was in between family and mental health, right, I was put in charge of settling criminal cases in the state courts. 00:48:00Judges can be involved in plea bargaining. And so we had a special assignment for a judge who would get cases that the defense and the prosecution thought were settle-able. And then some sort of, you were the dealmaker for thirty or forty cases a day. And since I had good skills as a mediator, I was asked to do that one year and, and I did it. And I settled a lot of cases. I mean, I was successful as success in that job was defined. And it also had a very negative effect on my view of human nature, because the facts of the cases were, I mean, some of them were not big deals. I mean, they were, you know, possession of drugs or something like that. But there were violent crimes. There were, there were women using drugs while they were pregnant. I mean, there were, there were people who were eighteen, nineteen years old who were on their third felony. And 00:49:00we're looking at, you know, thirty years in prison. And, you know, that, that really wears on you over, over time. And I think I'd been doing that assignment for five or six months and I got home one day and, and I just said, you know, this, this is just not okay. You know that there's, there's a way that my, my, my baseline has deteriorated. You know, I'm becoming cynical, and that's something I never wanted to see happen. So there's a, there's a self-care part that, that I became more and more aware of the longer I was a judge. I think that was one of the things I learned there. So, so, yeah, I was doing okay. But, and then I went to the last six years I was in state court, I was primarily 00:50:00doing civil matters. And then Silicon Valley had really kind of come into bloom, right. You know, it was, it was the early nineties. And we had, you know, Apple and we had IBM and we had Hewlett Packard and we had all of these, these household names. And they were, they were our main customers. You know, in our, in our civil docket, they were suing people, and they were getting sued. And we had, had a lot of securities cases because of stock deals that had gone bad. And, you know, startups that had failed and in securities cases hadn't been preempted in the federal system yet. So we were getting them in state court and getting some trade secret cases involving computer technology and so all of a sudden--

KASARABADA: --wow--

FOGEL: --so I kind of went from doing what it was a fairly standard state court docket, you know, family and criminal and probate, mental health to, to all of a sudden getting all of this techie stuff and--

KASARABADA: --intellectual property--

FOGEL: --intellectual property--

KASARABADA: --a whole different area of the law--

FOGEL: --a whole different thing. Yeah. And I got to say, it was probably the first time in my career that the law, you know, as opposed to the people actually kind of became the the, the dominant theme, you know, to really do those cases. Yeah, there were people in those cases and there were, there were stories in those cases. I mean, there were executives who didn't like each other and there were things like that. But, but, but in order to do the cases competently, it took a level of legal sophistication that I hadn't really needed all that often. And, and I started thinking, well, you know, it's really good that I went to law school, you know, (Kasarabada laughs) I have some, I have some framework for dealing with that--

KASARABADA: --it finally came in handy. (Kasarabada laughs)

FOGEL: Yeah, it finally came in handy. And, you know, jurisdiction and pleading and all this kind of stuff. (Kasarabada laughs). And, and, and so, you know, and the funny thing is, you know, like, like I never thought about being a federal judge. You know, I just assumed that I would be a judge on the state court, and 00:52:00I would retire. And I don't know what I would do and along the way. One of, one of the things I'd gotten involved in as a state court judge was, I got involved in judicial education. And I'll talk more about that in a second. But I got, became a judicial educator in the state courts, and I mostly taught family law because that was something that the powers that be in judicial education thought I was really good at teaching. So that was mostly what I did. And the other, the other thing I taught was, was ethics. And we sort of had that kind of, in some ways grew out of my religious studies background. And in some ways it was just my, my view of ethics. As always, it's not enough to teach people the rules. You have to understand why, why people get in trouble. You know, what causes somebody to violate the ethical rules? It's usually some, some sort of emotional 00:53:00thing or some sort of blind spot that a person has, and it's, but it's a life situation. You know, it's not judges go out and want to be unethical. You know--

KASARABADA: --um-hm--

FOGEL: --it's if something happens or something is going on with that person. So I had a very behavioral view of ethics and did some work with our California Judges Association, which the equivalent of the Federal Bar Association in developing health programs for judges. And, you know, giving people a chance to talk with somebody confidentially if they were losing their composure in court. Things like that. And, um, so that kind of became another area where I got known in the legal community as somebody who was very engaged with that. And the, um, president had nominated someone for the seat I eventually got. Well, let me back 00:54:00up a little bit. My predecessor in my seat had had a criminal prosecution against him.

KASARABADA: Oh, that's right.

FOGEL: So there was a, there was a scandal around that person's perceived lack of ethics. And he actually was convicted.

KASARABADA: Um-hm.

FOGEL: And then on appeal, they resolved the case. We ended up dismissing the criminal case in exchange for his resigning from the bench. So, so he did. There was a vacancy. And then the president nominated somebody who, in the course of being vetted, also had an ethical problem (laughs) where, you know, he had failed to disclose assets and so forth. So by the time that happened, the White House and the senator who ended up calling me, they said, we gotta find somebody who has no, no baggage, right.

KASARABADA: Why not the guy who teaches ethics?

FOGEL: Why not the guy who teaches ethics. So, you know, it's like so much of 00:55:00this is like being in the right place at the right time. And, you know, I really had not had any significant federal experience other than doing these federal-like cases that I had done in the last five years. And so those circumstances lined up. And it truly was one of the least political processes I've ever been part of. I mean, I just got a call one day saying, are you interested in being a federal judge? And, you know, I don't know. I mean, let me think about it.

KASARABADA: Had you been following the scandals-

FOGEL: -oh, yeah--

KASARABADA: --and the process?--

FOGEL: --oh, yeah. Sure--

KASARABADA: --it must have been a big--

FOGEL: --oh, yeah. No, it was very, very well known in our community.

KASARABADA: Yeah.

FOGEL: And so you know I thought about it for about twenty-four hours, and I said you know, you know this could be good. You know, this could be a good thing to do. And it's an honor to be asked. But it's, I also could see, could see liking it. And, um--

KASARABADA: --did you have any hesitations?

FOGEL: Yeah, I did. And I think the biggest, well, I had two. One was I didn't 00:56:00have a lot of practice experience to draw upon. And the other was that the process of that time had already gotten very political in the ways that it is now. You know, where, where it was very partisan. And even though I certainly hadn't been an activist in this in a way that would attract that kind of attention. You know, I hadn't been, been a legal activist. You know, I did have, you know, I had the background doing legal aid, community law. You know, early on in my life, and I was a little bit concerned about that. That might be a negative. But, but what came out in the process was that the stuff that I think got me on the radar in the first place was the stuff people cared about. And so, so it actually was a pretty easy process. It didn't, didn't have any opposition. 00:57:00And, you know, it got through about as quickly as one could at that point in time, which wasn't very fast (laughs). It was, you know--

KASARABADA: -that's still pretty long--

FOGEL: --yeah, yeah, yeah. But, yeah, but it was, it was, it was okay. I mean I think, I think the process is, it's always, always a controversy. Always a stressful one. Because you don't know. You don't know who's going to come out of the woodwork and say what about you, you know. But, um.

KASARABADA: Did you, staying with the process for a bit longer, did you have to meet with all the members of the committee or?

FOGEL: No. For district judge nominations, that usually doesn't happen--

KASARABADA: --okay--

FOGEL: --unless, unless you're controversial.

KASARABADA: Unless you are controversial.

FOGEL: Yeah, the thing that I did have to do, which was, which was a prelude to things I have done at the FJC, is that the only way that one would be non, non-controversial and have a relatively smooth process back in that era, was, was to have bipartisan support. And so that was something I really did spend a 00:58:00lot of time demonstrating in, and I had really worked with a lot of different sectors in the communities. I didn't, it wasn't hard to get people from both parties to speak up, but it was just a matter of realizing how important that was. You know, and just the process of putting that resume together was, was interesting and, and valuable. And it made me realize, so why are, why are conservative Republicans and liberal Democrats both comfortable supporting me? You know what, what is that? What is it I mean, I mean, it's not just something, well they like me. I mean, so what, what have I done right to, to do that? I mean, what, what can I learn from that, I guess is the question I was asking myself. And I think a lot of it was just that, that they, they trusted me and they didn't think I was doctrinaire. And you know, that I had the intellectual 00:59:00ability to do the job, which I was led that they felt. But, but I think a lot of it really was sort of the fact that I develop personal relationships that weren't based on, you know, belonging to this group or that group or, you know, sometimes they describe our politics as tribal. You know--

KASARABADA: --um-hm--

FOGEL: --that we support people in our tribe and find bad things to say about people in the other tribe. It's like I was never tribal. You know, I really cultivated that throughout my life. And I think that, that, that that helped.

KASARABADA: It's certainly a theme of your life.

FOGEL: Yeah, it is. It is.

KASARABADA: Um, so you, um, are accepted into that, you are nominated and you are overwhelmingly voted into the, onto the bench. What was that transition like from state trial courts to federal trial courts?

FOGEL: Well, I think the main thing I remember was, and I was describing this to somebody the other day that, that when I was doing the civil calendar in the 01:00:00state court, especially once we started getting all this high tech stuff, you know, I could, I could have a day where I would have thirty or thirty-five cases on my motion docket. And, and some of them were big deals. Summary judgment motions. You know, Apple versus Microsoft or something, you know, and, and the, and, you know, I didn't have a lot of help. I mean, we had a few people in our staff. We had a staff of, central staff of law clerks, but they were all really busy. And I was lucky I could get a one page memo just summarizing what the case was. I didn't have time to--

KASARABADA: --you didn't have your own law clerk?

FOGEL: No, no, I didn't have my own law clerks, didn't, didn't have time to write. I mean, I did write occasionally, even if I had a really high profile case or a case that I knew was going to go up on appeal, and it was consequential, you know, I would, I would make the time maybe to write a ten 01:01:00page decision, but I would write it myself. I mean, it wasn't like I had somebody do a draft for me. I didn't, I mean, the law clerks we had, they were, they were, they were good. In fact, one of them ended up being my career clerk in federal court. But, but what they would give you is essentially just a discussion memo. And these are the bullet points you might want to explore in oral argument. And then you had to get through a lot of cases and in the morning.

KASARABADA: Um-hm.

FOGEL: So, so it was, I was used to make consequential decisions really quickly, you know. And then having to explain them in a very summary way. And all of a sudden, I have two law clerks. I have a judicial assistant, and I have externs. I mean, I have, I have a busy motion docket. Might have, you know, seven or eight matters on it, you know, and, and--

KASARABADA: --you had time to think--

FOGEL: --I had time to think, and I had time to write. And it was just completely different. And I really couldn't believe it, I couldn't believe the 01:02:00difference in resources and the same was true on the criminal side, you know, that if I could have a serious felony case in state court and I get a probation report. But, you know, if I wanted to give somebody probation or if I wanted somebody on supervision of some kind, I mean, I had no faith that they really would get that much supervision because the case loads were, were, were huge. They were really killer case loads for the probation officers so I had to, to be very, very--had things that were really easily measured, you know, because I couldn't expect a lot of individual attention, which as a result, which I didn't put a lot of people on probation, I just sent a lot more people to jail and to prison because I couldn't count on the supervision that would be there. And in a federal court, I mean, the, you know, the case loads were more manageable. The, the officers had time to get more and better training. I mean, it was just a completely different environment there too, and you can be a lot more individualized in the way that you dealt with criminal defendants and have some 01:03:00confidence that the orders would actually be followed through on. So, so yeah, I really liked that. The formality of federal court, that really took some getting used to this. Because as you can tell, I'm not real formal. And so it took some, it took some adjusting. The big firms, the big national firms, I mean, we were starting to see them, and in, in state court in some of the cases I was describing, but federal court they were there all the time, you know, and just sort of understanding the, that culture. San Jose is, as I said, was a, was a kind of an overgrown small town, when I started practicing there and so I tended to know all the lawyers, I knew all the judges, and there was a collegiality. You know, it's that thing in a lot of people, I think in small communities, recognize this, that you just, you can't afford to get a bad reputation because, 01:04:00you know, you're going to keep meeting people, the same people week in, week out. Whereas with national practice, that's just not so. I mean that you just, you don't, you don't have the same personal accountability. And so people would fly in from somewhere else. And, and, you know, I wouldn't know whether I could trust them or not. And they, you know, they could, you know, throw all the paper at me that they could and, you know, and, and, and just kind of getting used to that kind of litigation culture and figuring out how, to how to manage it--

KASARABADA: --that was already well entrenched in federal courts at that time--

FOGEL: --yeah--

KASARABADA: --or it was beginning to be?

FOGEL: No, it was, it was, it was, I noticed it right away. And the other, the other thing that contributed to that in our particular venue was, was patent cases, because just given who are, who's located there, it was a very, was and still is, a very active patent venue. So I got, when I got my first set of 01:05:00cases, when I took the bench, I got thirty-three patent cases.

KASARABADA: Wow--

FOGEL: --so--

KASARABADA: --so you're in a new level of, of the bench where the resources are completely different from what your past experience had been. Well, now you have to develop new workflows--

FOGEL: --um-hm--

KASARABADA: --new processes--

FOGEL: --um-hm, um-hm--

KASARABADA: --right? So it's great. But on the other hand, it somehow requires more thinking.

FOGEL: --sure--

KASARABADA: --at least upfront, right?--

FOGEL: --sure, absolutely. And I had to figure out, well, how am I gonna do this so that it works for me?

KASARABADA: Um-hm.

FOGEL: One of the, one of the great things in the federal system, something I really like about the federal system, is the direct assignment of cases. You know, most state courts don't do that. They have master calendars. And so, you know, you'll do four years in family and you'll do a year or two in probate and you do time in criminal. But, but, but you don't get the, um, sometimes a case will have the handprints of like five or six different judges on it. You know, 01:06:00depending on how, how much you have that sort of horizontal organization. In a, in a federal court, you know, you get a case that's your case until the end. And I think that's great for case management, assuming you don't have too many cases, you know, because so, so one thing that worked well and still works well for me--in fact, we are teaching a class on this next week--is, is sort of the active management of cases. And so the federal rules give you the tools to do this. You have your Rule Sixteen conference and you bring people in. And what I've found very effective and you know, at least for me, is to bring the lawyers in for that conference in this. Let's figure out a collaborative way to do this. You know, I recognize you represent different interests and your interests may be adverse, and that's why we're here. But, you know, let's figure out how to, how to manage the conflict in the way that works the best. Given the court's 01:07:00resources, given your client's objectives and interests, given what's really in dispute. And so you have that sort of conversation and then develop a plan for management of the case. And sometimes you get people to discovery and sometimes you hear jurisdiction motions and sometimes you get people right into mediation, you know, but each case has its own, its own life. But it's the idea of being engaged as the judge with the lawyers. And usually it's lawyers. Sometimes you have a pro se litigant, but it's usually lawyers, and, and figuring out how you're going to manage that particular case. And I think the federal system is, is very well-suited to that. At least that's how I have been able to adapt it to my own style. And, um--

KASARABADA: --was it trial and error that led you--

FOGEL: --um--

KASARABADA: --this, the pretrial conferences are actually more beneficial than--

FOGEL: --yeah, well, not so much the pretrial conference, as the, as the case management conference is early in the case, and then I would do more than one. I 01:08:00mean, I would do serial meetings with lawyers to kind of keep an eye on my cases so that they didn't fall through the cracks. There's a lot of different theories of case management. I mean, there's sort of one, one extreme is that you, you just give people a trial date. And if you never hear from again, that's great. And when the trial day comes, you try the case.

KASARABADA: Right.

FOGEL: I mean, that's, that's sort of one, one extreme, I'm over toward the other end, I'm not all the way over. I think I really do believe in party autonomy. But what I try to do is, is have a lot of opportunities for the parties to interact.

KASARABADA: How did you come to that approach?

FOGEL: Well, it was the way I did other stuff, was the way I did family. It was the way I saw problems with my mental health clients. I mean, it was, was, it was the idea that that you, you could, you, every time you interact with people, you, you learn something about them and they learn something about you, and they learn something about each other. And usually problems can be solved through 01:09:00exchanges of information. Usually, not always. I mean, sometimes you have sort of legitimately conflicting interests. You know, both people want the same piece of land, you know, and, you know, or one person says they ran the red light. The other person says they didn't, you know. So you get, you get those kinds of issues. Probably the sooner you can identify that as that kind of issue then you say, well, here's your trial date, let's get it done. But I think it really takes a while to triage a, a, a dispute and figure out what's driving it, what's, what's going on. And so it really builds on all the experiences I've had. And--

KASARABADA: --what was that first year, or first several years, like for you as a, on the federal bench?

FOGEL: Well, you know, the overused metaphor of drinking from a firehose and use this learning, especially the patent cases, I mean, just learning about 01:10:00technology, learning the rules, learning the nomenclature, but learning, learning about the federal rules generally--

KASARABADA: --um-hm--

FOGEL: --you know, it took some, some time getting used to the culture, getting used to the people. So it was, it was definitely, um, as first couple of years are really challenging, but you know I'd been a judge for a long time and I think, you know, when people go on to the federal bench directly from practice, it's very different because then you're not only learning the specifics of the federal system, but you're also learning how to be a judge--

KASARABADA: --um-hm--

FOGEL: --that I didn't need to know how to do. I mean, in some ways it's lifetime learning, and I mean I'm still learning how to be a judge. But I mean, the, the, the basics of how to be a judge were well habituated. So it really just, how, how do I adapt it here? You know, how is it? How was it different in this system? So it was more learning the law and learning how the, the way the 01:11:00community worked and what the expectations were.

KASARABADA: Does that mean you were taking subject matter courses as in patent workshops? Things like that?

FOGEL: Well, I did do that. I had to. I, I did a lot of sort of immersion in trying to understand patent law in particular.

KASARABADA: Were the other judges on the bench with you at the time, also sort of in the same predicament?--

FOGEL: --they were--

KASARABADA: --everybody's trying to learn this new area of law--

FOGEL: --they were well, they were older. I mean, I was, I, when there were three Article Three judges in San Jose. There still are three Articles in San Jose. And the two colleagues I had when I joined in, both had been on the bench for a while. And one of them was a real patent expert, a nationally recognized patent expert. And he was incredibly helpful. And it was one of those things where you get the right colleague, can make such a difference. And he was a great colleague in many, many ways. And this was one of them. You know, he kind of said, here's how I learned this. And here's some ways you can, you can get 01:12:00access to this information. And we would sometimes talk about lawyers and say, you know, I don't really trust so-and-so. And he's--and I don't either (laughs), you know, that kind of thing, you know, and the conversations that judges have with each other and, you know, it's very, was very helpful. And, you know, I figured it out. I mean, not that I even to this day would consider myself an expert, but I figured it out enough. So I didn't feel like I was flailing around.

KASARABADA: Um-hmFOGEL: You know, I kind of got past the neophyte stage anyway. And, you know, I made, I made a lot of mistakes again. But in some ways, those mistakes seemed less consequential than some of the ones I was describing earlier. You know, the Court of Appeal can fix them (both laugh). Whereas the other ones were a little more, you just, you just live with them. But, but it was, it was, it was good. And I really did like and do like the docket that the Court has. Because you get, on one end, you get the patent cases, but then you 01:13:00have the civil rights and the employment discrimination cases. So you have constitutional law cases, which are fascinating. I got, I got a number of cases involving elections in California, which were tremendously challenging and interesting cases. So the mix, the mix of work I had on the district court was, was really good. I mean, I have no complaints about it.

KASARABADA: Let's talk a little bit more about your case management style.

FOGEL: Um-hm.

KASARABADA: So you're kind of known for your mediation and focus on mediation, alternative dispute resolution. I think the first course you ever taught for FJC was--

FOGEL: --was a, was a mediations course--

KASARABADA: --mediations course?--

FOGEL: --yeah.

KASRABADA: So it's a throughline through your--

FOGEL: --um-hm--

KASARABADA: --entire career--

FOGEL: --um-hm--

KASARABADA: Can you talk a little bit more about how you, why you use or how you came to use case management?

FOGEL: Well, it's, it's hard for me not to do it. It's just kind of how I roll. 01:14:00You know, it's just, it's just, it's who I am. I can do the other thing. I mean, if I have to make a decision, I can make a decision. But, but my, my instinctive approach with people who disagree is to try to understand why they disagree. I mean, I'm not trying to make myself out to be some wonderful human being here. I'm just saying that's kind of how I'm wired. And as to, as to why I'm wired that way, you know, it probably goes back to my childhood and you know, what my parents were like and, you know, that kind of thing. It's just, it's just always been my personality. It's one of the reasons why I'm being an advocate and having to be a zealous advocate for one side was, you know, never quite fit for me because I always had trouble because I always saw the other side. And, um, and so my natural approach is to say, well, okay, you want this, tell me more 01:15:00about why you want it and then say you want that, you know, tell me more about why you want it. And as people tell you things in response to those kinds of open-ended questions, what you see and what they begin to see is that there actually are a lot of common data points in many cases. Maybe some that aren't common, but there are a lot of places where the interests overlap, you know, and, and what a mediator does is, you identify where the common ground is and you say, well, we've got ten things here and you actually agree or pretty much agree about seven of them. So let's talk about the three that you don't agree about and tell me more about why you feel the way you do about points one, two and three. And so it's a, it's a process of continuingly eliciting information from people. And I had to do that as a mental health advocate. I had to do that 01:16:00as a family law judge. And I do it. I mean, I was trained as a mediator. That's sort of classic mediation skill. And, and it's my personality anyway. It's kind of a lineup of various things. And, and then in, in, in case management, I think I've just kind of worked at it more so that I don't ask questions that aren't helpful. I really try hard not to make people do things by throwing my weight around. But at the same time will sometimes, say this comes up a lot, where I think, counselor posturing that I can just give somebody a look or I can just say, you know, yeah, I know that, I know this case is important, you know, I know that your client feels strongly about this case and they take that as a 01:17:00given. You don't need to keep telling me that. I want to know why it's important. I want to know what's important about it to them. And I would like you to give me as concrete an answer as you can. So you're constantly moving people away from rhetoric--

KASARABADA: --hm--

FOGEL: --and, and, and, and concludes, conclusory statements and trying to get at facts. And so there's this case that's used all the time in mediation 101 which is, sort of illustrates this point. You have people fighting over who's going to, who owns an orange tree, you know, and, and both people making all these impassioned arguments about it. And so what you're at some point with the mediators is why do you want the oranges, you know? And, and one says, well, I know I make orange juice. And the other person says, oh, I need, I need the rind to make, to make this perfume that I manufacture. So what's the problem (both 01:18:00laugh)? You know, it's like we can work this out, right? I mean, it's like--but if you'd never ask the question--

KASARABADA: -you would never know--

FOGEL: --you just, you just keep argument, hearing arguments about why I own the orange tree. So, so, and I think a lot of, a lot of stuff in case management is like that. So the common thing today is proportionality. So some even employment cases is why you need to get the personnel files of, you know, every employee at Walmart, you know, and, and Walmart comes in and says, you know, you know, we don't, we don't even think there's a valid claim of discrimination in this case. I mean, you get nothing. You know, we'll give you your own personnel file and that's it. You know, and, and, and so you get those kinds of postures being taken at a Rule Sixteen conference. And, and you can just sort of ask some questions, well, what, what are you going to try to prove with the universe of 01:19:00all the personnel files? Do they have a company-wide policy of discrimination? Well, so what? You know, what evidence is there of that? You know, is there some way in the short term, you know, we can look in and get a sense of how likely it is that you're going to be able to establish that there is that kind of specific, that specific kind of discrimination against your client in this case? I mean, what, what's the core evidence you need to, to get at that? And then the other side, you know, say, well, you can't expect them to--I mean I'm not going to grant summary judgment without discovery. So, you know, we have to figure out some way that they can explore the reasonable contours of their claim. And, and, and so you're just sort of have that kind of dialog and--

KASARABADA: --it sounds like you're very active in the case--

FOGEL: --yeah, yeah--

KASARABADA: --before even thinking about trial dates and things like that.

FOGEL: Right. No, I get involved in, in--I think of litigation as a process. And 01:20:00I do. And I completely agree with people who think that, that setting a trial date is the most important thing you can do because you do need to set limits. And I mean, one of my self-criticisms as a mediator is that sometimes I'm too slow to set limits. You know. I will just sort of love the process so much that, you know, let's just keep, let's just keep meeting. You know, it's like somebody once said it gets conferred till you drop, right (Kasarabada laughs). And yeah, you can't do that. It's not fair to the parties. And it's, it's a burnout. And there is a lot of reasons why it doesn't make any sense. So I think--

KASARABADA: --well, aren't you also thinking that if you just keep talking, you'll get to a point--

FOGEL: --right--

KASARABADA: --surely, where there is meeting of minds?

FOGEL: I do have that faith. In many cases. And actually I'm usually right, but sometimes I'm wrong. And I think it helps the, the process to have boundaries. And, and so having a trial date as a boundary, I think is a useful thing. And 01:21:00you don't move it unless everybody wants to move it. You know, and even then, it's, even then, it's rare. But--

KASARABADA: --I wonder what kind of reception you got from your colleagues on the bench. Surely, there are also judges who just say, we are judges. We're there to try the cases. Let the people, let the lawyers practice--

FOGEL: --yeah. Well, there's still that debate. There's still that debate. And I think it comes up in the role I have at the FJC. This, there's, there's people who feel that way. And, and I think we have an obligation as the judicial education agency to, to make sure that both views are represented and to make clear that there are people who really believe that. And, and that they've had success managing cases that way. And if that's how you want to do it, fine. If you want to do it this other way, here's what you need to know in order to do 01:22:00it. You know, but, but ultimately, the decision about how, how you want to do it is up to you. I think one of the things that everybody pays attention to is like, you know, we, we, we're competitive people. We pay attention to each other's reputations. You know, we, the extent that we look at each other's statistics, you know, we notice who's got cases on the Six Month List and the Three Year List and things like that. And so and, you know, lawyers talk about judges, and judges talk about lawyers and, you know. And so I think, I think, it's not been a battle, you know. Sometimes there's respectful disagreements about the extent to which judges should be active case managers. But I don't, I've never felt any disrespect from anybody about it. And, you know, I think, I think one of the things is that I think we always tend to find a way of doing things that aligns with our, with our strengths anyway. You know, that, that we 01:23:00all want to be successful. We don't want to have to twist ourselves into shapes that we're not good at, and, and so I think for some people, being an active case manager, that just doesn't work. And I think just like for me, if I were, so here's my ten point checklist and you know, this is what you have to do, that I would have a really hard time doing that. I would find that very stifling. So, so I think there's a range of personalities. But, but I think the one thing I would add to that, I'm being diplomatic. The one thing I would add to it is that we do have rules now, especially with the 2015 amendments [to the Federal Rules of Civil Procedure], that encourage judges to be active case managers. And then if you read not only the rules themselves, but the, the commentaries to the rules, to get into, the committee got into a lot of detail about this, about why 01:24:00it's important that we're public servants. We're not here simply to be the referees that had a controlled combat between lawyers, you know, meant that we really are here to get the just, speedy and inexpensive resolution of cases. And then the Chief, you know, who's my boss, I mean, he puts in his year-end message, you know, in 20-2015. I mean, these rules were not meant to be cosmetic. They're important. And I agree with him. And I think that--so I think we do have some official sanction for, for pursuing this. But, but having said that, I also recognize that if judges have been successful doing it in other ways, that that's their prerogative.

KASARABADA: I watched a video of a speech that you made at an intellectual property summit a few years ago at Stanford Law--

FOGEL: --um-hm--

KASARABADA: --and you talked about, you mentioned folk wisdoms that judges acquire over the course of their career on the bench about how cases are presented, how they're disposed of and things like that. You know, that you have to set a firm trial date, as you said, and that, you know you've got a good settlement if both parties walk--

FOGEL: --yeah--

KASARABADA: --away angry.

FOGEL: And that's one I really don't like--

KASARABADA: --well--

FOGEL: --the trial one I agree with, but the, the unhappy parties one I don't.

KASARABADA: So what sort of folk wisdom have you acquired over the years?

FOGEL: So let's start there--

KASARABADA: --the trial date--

FOGEL: --because it is, it is one that I tend to, to talk about a lot. So I think one of, one of, one of the sort of the paradigmatic differences we're talking about here is that if you look at, at a trial or the judicial process. Well, who is it for? You know, if it's for the judges and the lawyers, if that's 01:26:00who the parties are, you're trying to make it work for the judges and the lawyers so that it, it's, it's convenient for them. That leads you to certain conclusions. You have, you have rules, you have protocols. You have, you know, sort of clear expectations about how people are going to behave. If it's, if it's for the litigants, then it's different. Then you focus your attention on easy access, keeping expense down, avoiding delay, being transparent. You know, there is a whole set of values that go with a sort of a litigant-centered process. Well, that's, that's the school I'm in. I mean, I think the courts exist as a public resource. And so we need to really be careful not to be too concerned with our own inside baseball sort of stuff. I mean, sure, we have to 01:27:00think about it. I mean, it's not like it doesn't matter, but that can't be the, that can't be the focus. And I always use the medical profession as an example that, you know. If you go to the doctor and the doctor tells you, you know, you have some condition, and they use like, you know, ten multi-syllablic words to describe what the condition is, you know, I mean, it may be entirely accurate, and they could be great diagnosticians, but it doesn't really help you. You know, you don't have the, you know, you don't really know what they said. You don't feel the, the empathy and the, the, the attention to your own needs. And I think the legal system very much the same way that people want a fair hearing. They want to be heard. They want to be understood. They want even if they don't win. I mean, people want to win. But even if they don't win, they at least want to be treated right. They want to be treated with respect. And, and, and I think we need to always focus our system that way. So the canard about if you have two 01:28:00unhappy parties, it's a good settlement. I mean, I think that's, you know, from the standpoint of, of a judge who's trying to clear his or her docket, sure. I mean, you know, the docket's cleared, and both parties seem equally unhappy. So you, you didn't inflict harm disproportionately. But I think that really takes the focus off of the parties. And I think, to the extent that we can, we should try to achieve settlements that both parties feel okay about. And any mediator would, would say that, you know, you, you are trying not to do a settlement that both sides are equally unhappy with. What you're trying to do, one that both sides feel some ownership of. You know, that they, that their interests and needs were taken into account, at least partially. Not that they're going to be thrilled about it, but at least that the process attempted to address their, their interests and their needs. That's part of the takeaway. And I think when 01:29:00mediation is done that way, people feel pretty good about it, and they feel good about the courts. And this goes back to my family law experience. But before we had custody mediation in California, people thought the family courts were absolutely the bottom of the barrel. You know, they were, everybody said, oh, that's the worst experience ever. And once we had mandatory custody mediation with skilled mediators, mental health professionals, not lawyers doing the mediations, you know, the satisfaction level went over fifty percent. When you think about it, with a, with a child custody case and most of the people feel like it was a good process--

KASARABADA: --um-hm--

FOGEL: --and that's because the mediators really focused on understanding what the interests of the parties are. So that is one of the things that I talk about a lot. I think as judges, we want to remember who we're, who we're serving and, 01:30:00and try to do our very best to make sure people feel heard and understood, even if they don't get everything that they want, because just feeling heard and understood as part of what they want. You know, that's part of what people want. So, so that's, that's, that's a point I try to make often when I'm speaking to legal audiences.

KASARABADA: I think it's a useful point for the public to understand--

FOGEL: --yeah, yeah--

KASARABADA: --what the role of judges is too. Let's move on. Let's shift gears and go to your work in judicial.

FOGEL: Okay.

KASARABADA: So in 2011, you had already been a federal judge for thirteen years--

FOGEL: --um-hm--

KASARABADA: --or nearly so.

FOGEL: Yeah.

KASARABADA: Why? Why did you want to become FJC director?

FOGEL: Well, so, you know, I had done a lot of legal education as a state court judge. I liked it. I was both a teacher and a planner. I taught family law. I taught ethics, taught a few other things. Chaired the Planning Committee for Continuing Education for a couple of years. So, so this whole practice of 01:31:00judicial education was something that I enjoyed. I got educated in order to do it. I mean, I had to learn about adult education. They wouldn't let me teach until I did. And so some of the adult learning techniques, you know, eliciting people's responses and active learning and--

KASARABADA: --um-hm--

FOGEL: --experience learning. I mean, that's all stuff that I had some experience with as a state court judge. And then I remember thinking at some point pretty early on in my federal experience that it would be fun to direct the FJC someday. So this was something I--

KASARABADA: --how did you--

FOGEL: --had thought about--

KASARABADA: --even come to that?

FOGEL: Well, because I had done the state education. You know, and then I knew that the FJC existed.

KASARABADA: Okay.

FOGEL: And I think I'd only been on the state bench, or on the federal bench for a year. And I got invited to start teaching mediation to federal judges. And I think the problem was they couldn't find a district judge who had any mediation experience. There I was, you know, so, so. But that, it was a good experience. I 01:32:00really like the FJC. It was a class operation. And I remember coming home from that, maybe my first experience and saying that's something I'd like to do some time.

KASARABADA: Hm.

FOGEL: And, but at that point, I had teenage children. And, you know, that's not a time you move your family. And it just, it wasn't the right time in my life. And then shortly after that thought, you know, one of my colleagues Fern Smith got appointed as director of the FJC. So she was from my court, she's somebody I really, really like. Well, that's it. I'll never be FJC director because they're not going to take another person from the Northern District of California. So, so, you know, that happened. And then, and then the job came open again. There was another director in between who was also from the Ninth Circuit. So I said, well, this is, you know, well this is--

KASARABADA: --it seemed to be almost a tradition by that point--

FOGEL: --does not, not going to happen. And, uh, and so 2011 comes and the job is open and they have one another colleague of mine who's really good friend. And he, I had never even talked to him about this, it's so funny. And he just called me up one day and he said, you're going to apply for the FJC job, right? What are you talking about? You know, he said, no, you should do it. You know, this is, I mean, it's got your name on it, you know, and. And so he kind of cajoled me about doing it. And then another colleague who was at that time, was on the executive committee of the Judicial Conference. And so pretty, pretty wired in sort of national judicial politics. And so I called him and said, you think there's any way this could happen? You know it might, you know. And then I talked to Judge Smith who you know, had done the job before. And so, anyway, I 01:34:00kept talking to people and they all sort of, they all said the same thing. I said, you know, what do you got to lose? I mean, you know, maybe, maybe, maybe they have gotten tired of judges from our court and our circuit. But why not, you know, and so and then, of course, I had to talk to my family about it. And, you know, by that time, my daughter actually lives in D.C. So she was there. That was a, that was a, a, uh, a plus. But my wife and I were both very, very rooted in the Bay Area. You know, it's our home. A lot of friends, lot of activities. And so she wasn't at all sure about it, and I said, well, I'll, maybe I'll just put it in my application, and it's probably not going to happen anyway. And, you know, we'll see what happens. And then it just, I kept, you know, I put the application in and then had an interview and then that interview went well and then I had another interview. And, and lo and behold, one morning 01:35:00the chief justice calls me and asked me to, to come. And sort of in the, in the process, the longer I thought about it, the more I said this--yeah, okay, if I get this opportunity, I'm just going to do it. You know, and worked it out. And then this is the way these things happen. So my wife, I said, well, well, I'll do for four years. Well, I've been there for six years now. Right. You know, and I'm still going, right? And, and it's just one of those things where I think my, my friend who called me originally, my colleague, he really was right. I mean, he knows me well enough. And he just, he just said, you know, this, this is, it draws on everything you've done in your professional life. And it's a chance to tie it all together in a really good way. And that's exactly what's happened. I mean, it's, it's all the stuff we've been talking about here. All of those threads kind of come together--

KASARABADA: --um-hm--

FOGEL: --in this, in this position. And, you know, I just feel it's one of the best things that ever happened to me. It's just been a really great, great opportunity.

KASARABADA: So the Judicial Center's mission is focused on research and education.

FOGEL: Um-hm.

KASARABADA: How, how does your work from being a district judge, how does that inform that mission?

FOGEL: Well, it makes me particularly tuned into the problems of district judges and magistrate judges and increasingly bankruptcy judges. I mean, that's been a steep learning curve when I first arrived. I really, I had a friend who's a bankruptcy judge, but I didn't have a lot of experience with the bankruptcy judge community. And they had been very good about reminding me frequently about the things that they need from us.

KASARABADA: Um-hm:

FOGEL: Really raising my consciousness about their situation. So I really 01:37:00appreciate that. So--but I think just having the practical experience of having sat in that chair, having done that work, makes, makes a really big difference. With the circuit judges, it's been interesting. They generally haven't used the FJC that much. I mean, there's, you know, we do a, every three years we do a symposium for them. But I really wanted to change that and do more work with and for circuit judges. And so we've been developing a curriculum for everybody we serve, all of the different judge groups and, and staff groups. We've wanted to sort of articulate what we were doing, and why it's been a major project. And, and with the circuit judges, you know, they, there are things they need, even though their, their focus is much more on the law and in reviewing trials for 01:38:00error and things like that. There are still things that come up in the life of a circuit judge that, you know, workflow management, collegiality, the problems that chief circuit judges have with managing colleagues and personnel issues in the circuits. And so we've been--and then we've added some, I guess, the best way to put it, sort of intellectually boundary-pushing programs to kind of get people thinking about the law a little more broadly. We were talking before we started this interview about history. And we've done now, just about to do our fourth program with the National Constitution Center on, on some aspect of judicial history. And circuit judges are very, very interested in that because it helps them frame a little bit what they're, what they're doing.

KASARABADA: Um-hm.

FOGEL: So, you know, when I have some sense of that, just from having sat by designation enough that I, you know, I get a sense from, from the people I sat 01:39:00with, what they're, what they're thinking about and what kinds of problems they face day to day. But I think it's generally, it's a good thing to have a trial judge in, in the position I'm in, because that's most of the judges that we serve.

KASARABADA: Are you particularly drawn to the research side or the education?

FOGEL: Well, I say in terms of where I've invested my time, it's been the education side. It's not because I'm not interested in the research side. I'm very interested in the research side. My predecessor, Barbara Rothstein, was, was very supportive of the research division. And I think when I arrived, the, the research division was in really good shape. And one of the things I did was, was talk to, a lot of people I talked to just about every employee at the Center in the course of the first couple of months and Research was really perking along. I mean, to get a sense of how devoted people are there, there's about 01:40:00forty people who work in the research division and, and I wanted to meet with them. And so we had a research director set up two meetings. And some of the senior people and the junior people in the dividing line between those two groups was twenty-two years of service (Fogel laughs). So you get a tremendous sense of the longevity that people have and the commitment they have to the work they do. And, and then the research people I work with on projects are just remarkably good. So, so I have felt like that division has needed less of my time to function optimally. I think it functions very, very well. But it's not a lack of interest. It's just I thought on the education side that we were, just as a matter of habit, we were, we were a little bit too much based on the law school lecture model--

KASARABADA: --hm--

FOGEL: --that we weren't doing enough experientially learning, and we weren't 01:41:00doing enough distance learning. We weren't taking enough advantage of the tools that we have with the internet and with, with webcasts, things like that to, to have blended learning for, for people. So--and the one thing that really was something that I thought we had to do and had not done was to spend the time actually articulating curriculum rather than just saying, well, this is what we've done in the past. You know, these are the programs we know how to do and we can add a new one if there's a new interest, but actually doing much more some systematic analysis of what competencies we want to be teaching. Now, I'll explain that in a second, what competence we want to be teaching and to whom and how, you know, what, what methodology we want to use for each type of competency. So--

KASARABADA: --it sounds like--

FOGEL: --yeah--

KASARABADA: --you were really interested in bringing in a lot of adult education--

FOGEL: --yes--

KASARABADA: --tools--

FOGEL: -yes--

KASARABADA: --in to--

FOGEL: --yes--

KASARABADA: --the Federal Judicial Center.

FOGEL: You know, I felt that the FJC had not made full use of, of, of principles of adult education, which is not to say that the programs weren't good because every FJC program I ever went to was I thought was a good program. But it's a question of, of intentionality, that when you do that kind of analysis of competency, you find out where your gaps are. And what we found was that some of our gaps were actually pretty important ones. And I'll give an example of one. So there's a lot of research and a lot of talk being done about implicit bias as a, as a social issue. We had not ever really sat down and thought about, well, what's, what is the competency there, you know? And so the attribute you want judges to have and competencies, knowledge, skills and attributes is the way they're typically broken down in education. So fairness is an attribute that's 01:43:00desirable. And in all judges and all judges want to be fair. I think all judges try to be fair. But what happens is that unconscious bias can interfere with your ability to be fair, not because you're a bad person and not because you're morally weak or anything, but just because you don't realize what you're doing. I mean, it's just you don't have that particular perception. And so if what we're trying to do is actually achieve as much fairness as we can and, and in sort of with, with diverse litigants and, and, and with diverse kinds of cases, have the judges be as aware as they can be. Well, how do we do that? If that's a desirable competency, how do we, how do we do it? And so then that got us thinking about, well, how do we talk about this? And some of the, some of the stuff that we'd seen, that I'd seen about it and I thought was very ineffective because it was moralizing. It was blaming, you know, it was saying you have 01:44:00implicit bias. You know, you need to fix that. And I think that approach is never going to get you very far, you know, particularly with people who are proud and accomplished and, and who try very hard to do a good job. So, so we had to think about, so what's the pedagogy for this? I mean, how do you get judges to re-examine their perception? And we had to be extremely respectful, and you have to be extremely deferential, and you have to really talk about it in a way based on science--

KASARABADA: --um-hm--

FOGEL: --rather than on, you know, telling people that they're doing something wrong. And, and, you know, it's not, it's not like there isn't any data. I mean, there's talk about, you know, Plato actually talked about implicit bias. You know, you're looking at, looking at the projection on the cave, you know, the projection on the cave isn't the real thing, it's the projection on the cave, and that all of us kind of go through life looking at projections on caves, you 01:45:00know, and so. So to the extent that our what we're seeing is not quite the real thing. You know, because our life experience has put filters in our eyes. You know, we can we can come to understand those things. We can slow down our thought process. We can learn more about other people and, and we can be better at seeing what's actually going on. So it's like it just plays right to our desire to be competent and fair.

KASARABADA: Hm.

FOGEL: So sort've taken that approach, which is sort of positive and proactive, and it's expanding your ability to do your job. And there's been really a pretty good reception, too. I mean, not a lot of pushback. I mean, the recognition that, you know, we all, we all make mistakes, and we all can do better. And so that, I think, is an example of where going through an analysis of competencies has really helped. And you know, this, when we were talking about, a while ago, about managing cases, I, people, colleagues I worked with, you know, think well, the way you do good case management, you pass a bunch of rules and, and I push 01:46:00back at them sometimes and say, you know, rules are fine, rules are good. You have them as a baseline and you can tell counsel, you know, you need to address these things when you come in. But, but if you don't know how to work with people, the rules aren't going to get you very far. You know, that, you're just gonna end up having enforcement proceedings on your rules, you know, and so. So the idea about how to, how to, how to listen, how to, how to talk, how to listen, how to elicit, you know, the sort of listening skills. And so one of things we did, just cause I didn't want this to just be sort of my vision of what judges are, we, we had a very thorough process of bringing in advisory groups from around the country for each of our constituent groups and saying, what do you think the competencies are? And we'll have these work sessions where, you know, it'll be big posters plastered all over our basement. You know, these are the competencies for circuit judges. These are the competencies for 01:47:00district judges. And then, and then we're distilling them down into, into a curriculum which really does reflect a national perspective. And then we can, we can develop workshops, and we can develop modules of materials, and, and, and so on that come off of that. So--

KASARABADA: --it sounds like you put a lot of effort--

FOGEL: --yeah--

KASARABADA: --into reaching out and getting buy-in.

FOGEL: Yes. Oh, yes.

KASARABADA: From various judges.

FOGEL: Oh yes. Well that's, that's another, that's another skill, right. Change management, and that's been one of the fun parts of the job, is, is practicing it as well as teaching it. Getting, getting by and at the FJC to move from lecture to interactive learning. You know, we did a faculty development program, we've been down two now, you know, where we've sort of trained people in this sort of teaching style. But all of that required getting buy-in from my 01:48:00colleagues at the FJC that they thought it was appropriate to do, and because otherwise, because they're always going to do the work, you know, and they have to understand it and have to want to do it. And then getting judicial leaders around the country to come in. We had a couple of education summits, and we talked to them about what we were thinking of doing in the way of changes. And does this make sense to you? You know. And it was interesting. We had some good comments. Or are you gonna get rid of lectures entirely? I mean, I want to hear, you know, Erwin Chemerinsky talk about constitutional law. Right. No. Well, no, we're not going to get rid of that. I mean, we just, we're just trying to change the balance so that we have more interaction, more, more practical learning and less, less theoretical learning. And so at every stage there is buy-in. We had some, some interpersonal, we had some personnel changes we needed to make to 01:49:00make this work and had to make that work. And, and now with the competencies, you know, we really tried to get buy-in from judges in the field saying is, does this, is this, does this work for you? Does this speak to you? Is this about--does this fit the job that you actually have?

KASARABADA: Hm.

FOGEL: And, you know, if something doesn't work, we find out pretty quick. It's that they'll tell us in the planning process or sometimes we'll, we'll, we'll try a program experimentally, and we'll get feedback from the evaluations saying, you know, that didn't work for me, you know, or I didn't--that wasn't helpful. And so we have to sort of integrate that. But I would say in terms of the way I spend my time when I'm in the office, it's more on education than research. And I think it's just because that's been my particular priority.

KASARABADA: I want to take a, I think we're coming to the end. But before we do--

FOGEL: --um-hm--

KASARABADA: --I want to take a step back and kind of look at the big picture and get your thoughts on how the FJC's work connects to really Judge Heyburn's 01:50:00legacy and what we're doing with this initiative. A judge in the mold of Judge Heyburn--why is it important for the public to know about judges like him and the kind of work that they do?

FOGEL: Well, I think this, this is something I've written about and will write about more probably when I am done at the FJC and have more time. And this is going to sort of resonate with where I started with religious studies. I think, I think judges have a sort of a archetypal role in society. And what I mean by that is, if you look at any organized society, there are certain roles that societies have created. You know, there's healers, right? So there's, there's doctors who, you know, people who take care of people, and they take a variety of different forms of healing. But there's a, there's a role for healers. There's a role for teachers. There's a role for warriors, you know. And there's 01:51:00a role for judges. And they wouldn't be called judges everywhere. In some places they're, they're elders or some places they're, they're, the, the wise man or woman that people come to with their problems. But there's, there's a, there's a person who decides or helps people get past disputes. And I think that people, the public attach expectations to that role without even realizing that they're doing it. So you, you come into a courtroom and there's somebody, you know, wearing a robe and you're up on a bench, and you know, you're scared and you're angry, and you're worried or what, you know, whatever else is going on for you emotionally, you expect that person, you want that person to be just, you want that person to be wise, want that person to be honest. And, you know, if you, if 01:52:00you don't expect that, then, then, you know, you've got a big problem. So you want, you want that person to be that way. And none of us can be that way all the time. I mean, no, no judge I've ever known, including myself, you know, can, can live up to that set of expectations a hundred percent all the time. But, you know, we try, I think people who are really professional judges and really care about the profession, you know, we try to do it. And, and some of the time, we, we get pretty close. Right. I mean, we can, we can be honest. We can be, we can be kind. We can be firm. We can be good listeners. We can be thoughtful appliers of the law. We can do all of those things. So when you see somebody who fails that test, you know, somebody who's rude, you know, yells at people, doesn't 01:53:00work hard, exhibits bias and doesn't seem to care. You know, people who fall, really fall short of those paradigms. That reflects very badly on the judiciary. And it kind of feeds into, to the cynicism that one might have about institutions generally. You know, it feeds a lot of negative stereotypes. And conversely, if somebody really manages to get there most of the time, that has the opposite effect. Then you say, well, that person's a real pillar of the community, that's somebody who I can respect, you know, that that's somebody who really believes in justice. And so, and that's where the Judge Heyburns of the world come in. I mean, there are people who, you know, in their community, among people who knew them and were in their court or had him as a colleague or, you know, went to one of their civics classes. So that's, that's a serious guy. I 01:54:00mean, that's somebody who's taken the, taking the role of a judge seriously and, and is really trying to live up to those values and those paradigms every day. And, you know, you don't want to overdo it and say, well, he succeeded every time he went out there. You know, he would, he would say otherwise. I would say otherwise. But it's, it's the fact that you get, you get up in the morning, and you realize that you have this incredibly important job, that actually it isn't about you. I mean, that it's about people's expectations of justice and someone to occupy that role I was describing. You know, another way to, to talk about it, and I, I'm always a little bit hesitant to do this, but it's like, you know, you talk about the role of clergy and religions. You know that the clergy people 01:55:00aren't the religion. You know, they're, they're the human vessel through which the spirit comes. You know, they're the, they're the people whose role it is to be the, in the interlocutors between the people who believe in these things and the divine, you know. So that that's their, that's their role. But, but anybody who's any good at that, you know, realize that it's not about them. Right. It's they, they are, they're the conduit. And, and I think that's the same for us. That it's not about us, we're a conduit. You know, that there's a, there's a set of values and aspirations that people have in society, that there is somebody, a place you can go. There's someone you can go to. There's an institution you can go to for sort of just resolution of disputes. And the judges are the, are the conduits. And so we aspire to those values. And, and I think the great judges 01:56:00are ones who we've managed to live pretty close to them day in and day out. And I think, I mean, really, honestly, that's why when Martha Heyburn started this initiative, that's why I was very happy to be part of it, because I said, well, you know, John was one of those judges. He was somebody that I felt that way about. And I know that, that a lot of other people did. You know, the sort of a consensus about him. And I think that's very telling as well. You know, when you see colleagues, lawyers, former litigants, fellow community members, friends, and they all, they all see the same person more or less, you know, they all have their own particular window. But, but, but, but they see those--a consistent theme you get back is those values, you know, those characteristics.

KASARABADA: Yeah, absolutely.

FOGEL: Yeah.

KASARABADA: That's all I have to cover today. Is there anything you'd like to 01:57:00add? Anything you'd like to elaborate on?

FOGEL: No. It's wonderful having a chance to talk about all this stuff. I mean, I feel a little awkward. I mean, it's, it's, I mean, I'm, I am very proud of what I've done, and I'm pleased with the opportunities I've had in my life. And at the same time, I, you know, can never not think about the, the, the ways that, you know, I wish I'd done better. And I think that's--I always liked, you know, having had this wonderful opportunity to just talk about myself for an hour and a half or whatever it's been, you know, to just, to just say, I continue to think that, that really the most, the most important trait of a judge once, once you have the, the, the, the basics, you know, the intellect and the, and the, and the stamina and the analytical ability and, and the people 01:58:00skills. I think the most, the most important trait is humility, it's understanding. And what I was just talking about, you know, that we're here to make something happen for other, for other folks, you know. And that's our, that's our mission. That's the only, only other thing I would have.

KASARABADA: Judge Fogel, it has been a real pleasure to talk to you today. Thank you so much.

FOGEL: Thank you.