Litigation

Interview with Chief Judge Dana Makoto Sabraw

Chief Judge Dana Makoto Sabraw

Judge Dana Makoto Sabraw was appointed to the Southern District of California by President George W. Bush in 2003 and became Chief Judge in January of 2021.  Before becoming a District Judge, he was in private practice for ten years, and was a Municipal Judge from 1995 to 1998 and a Superior Court Judge from 1998 to 2003.  He earned a Bachelor of Science degree from San Diego State University and a Juris Doctor from the McGeorge School of Law at the University of the Pacific.

Judge Sabraw comes from a family that is devoted to public service.  His wife is the San Diego District Attorney.  His father served in the United States Army and went on to teach children with special needs, and his mother, who was of Japanese descent, taught English as a second language.  Finally, Judge Sabraw is the fourth judge in his family.  His aunt, uncle, and cousin have all served as judges in Northern California.

In this interview, Judge Sabraw discusses his experiences during his first six months as Chief Judge, the issues facing the Southern District of California, and the Southern District of California’s success in working through the COVID-19 pandemic.  This interview has been edited and reorganized for clarity and brevity.

You have been Chief Judge for about half a year. How have you found the transition?

I have been a trial judge for almost 26 years, but being the Chief Judge is a completely new arena for me.  As the Chief Judge, I am responsible for the administration of the Court.  That is very different from presiding over trials and other matters in my courtroom. 

The Court is such an important institution and the Chief Judge’s role is to serve as the Court’s ambassador to the community.  The Chief Judge must ensure that the Court is serving the needs of the community and addressing the constitutional and statutory rights of all the litigants who come before the Court.  The enormity of this responsibility weighs heavily on me.  The number of emails went from 15 a day to dozens a day and there are many more meetings on my calendar.  I am fortunate to have excellent people to help and advise me.

Are you still carrying a full case load?

By statute, chief judges can revert to half a caseload, and there is good reason for that.  The additional workload of the chief judge is significant.  However, I am still carrying a full case load because we have a very busy court, given our proximity to the border.  We are ranked 17th in the country out of 94 districts, in terms of caseload.  Our weighted caseload average is 632 filings per judge, while the Judicial Conference standard is 416.

Even though our Court is allotted 13 active Article III judges, only seven of those positions are currently filled.  The Judicial Conference has also recommended to Congress that our Court be allotted six new judgeships.  So in a way, not only are we down six active Article III judges, we could in theory also get six more through legislation.  It just goes to show you how busy our Court is and how understaffed we are at this moment.

I am grateful for our ten senior judges, who are averaging about half a caseload.  They help us keep up with our caseload by doing the work of five active judges.  But we remain very busy, and this is why I still have a full caseload.

You may have already partially answered this, but what do you see as the most important issues facing the Southern District of California?

Two issues come to mind.  First, I am concerned about finding enough space for all of the new Article III judges.  A lay person may think that since six Article III judges have taken senior status, we would now have six open courtrooms.  But that is not the case because those same judges still occupy the same chambers and courtrooms.  I think the reality is that some judges will have to share courtrooms.  For example, we may have two senior judges share a single courtroom.  Fortunately, we have a very collegial court. 

In the meantime, we are building out two courtrooms on the 12th floor and four magistrate judges’ chambers on the 7th floor in the James M. Carter and Judith N. Keep U.S. Courthouse.  A few magistrate judges will also move offsite into leased space.  It is a very long and complicated process to get funding and build out new space.

The other issue has to do with the possible closure of our private detention facilities.  In our district, we have up to 3,500 inmates held in five different facilities.  One of those is a Bureau of Prisons facility, and the rest are private detention facilities – two in San Diego, one in El Centro, and one in Arizona.  One or more of these private detention facilities may be forced to close because they are all being scrutinized by the White House.  If that happens, we will likely not have enough space to house our pretrial detainees and we may have difficulty in how quickly we can get them to court.  It will also adversely impact the pretrial detainees’ right to access their counsel.      

Changing topics, how has your family’s history of judicial service prepared you to serve as Chief Judge?

I come from a rich history and family tradition of public service.  Our family has never been money driven, and has been rather service oriented.  That’s just the way I was raised.

I love this job.  I think that being a judge is the best job in America.  It really gives you the opportunity to serve the community in a very meaningful way.

The reality is that the Court is an arbiter of civil and criminal disputes.  They range from minor disputes to catastrophic disputes.  The Court is where we resolve these disputes, and we do it in a civil and professional manner.  To be able to shepherd that process and preside over these cases is so satisfying, and it is so important. I think the hallmark of a civilized society is measured by how we address our disputes.

There is no pay raise for the additional duties that come with the title of Chief Judge!  But my role as Chief Judge has given me a new perspective and appreciation for how the Court serves the community.  For example, I now get to work more closely with the Clerk’s Office, Probation and Pretrial Services, and the U.S. Marshals Service.  They all provide such invaluable service to the community, and I am grateful to work with so many talented and dedicated people. 

How did your prior experience as a Municipal Judge and a Superior Court Judge prepare you to be a District Judge?

My earlier experience in state court was invaluable.  I had the good fortune of presiding over more than 200 jury trials.  I handled preliminary hearings and felony sentencings in criminal cases.  I also handled civil cases for a few years, when there was a caseload of about 700 civil cases per judge.  I learned how to move a high-volume calendar.  When I was the Presiding Judge, I farmed out all of the cases for trial to the other judges. 

A District Judge has to be able to run a calendar, and run both criminal and civil cases from beginning to end.  Because of all the experience I got in state court, my transition from state to federal court was a comfortable one. 

What advice, if any, do you have for practitioners appearing before you in your courtroom?

I think the best advocacy comes from attorneys who are professional, courteous, and respectful.  The finest trial lawyers focus on the merits and not on each other.  There is nothing more off-putting than attorneys who bicker and snipe at each other.  It is very ineffective, whether it’s before the Court or a jury. 

For the newer attorneys, I strongly recommend finding mentors who you respect and can emulate.  When I was at Baker & McKenzie, my mentors were David Doyle and Chuck Dick.  On the bench, I had Judge William B. Enright and my uncle Mody Sabraw.  They were all wonderful examples to me.

I always encourage my law clerks and summer externs to watch a jury trial from beginning to end.  I encourage newer attorneys to do the same.  Doing so demystifies the idea of a jury trial and provides lawyers with the realization that they can do it too.  Fortunately, we have many trials in our district, and many of them are two-day trials.  It is a wonderful opportunity to observe a jury trial from jury selection to closing arguments.  It’s the same with depositions and arguing motions.  I think seeing it is critical – and then, of course, doing it.  The more you do it, the better you get.

What advice, if any, do you have for out-of-district practitioners appearing in the Southern District of California for the first time?

They should familiarize themselves with our district’s local rules and the judges’ chambers rules.  It is important to know your audience, so they should learn the assigned district and magistrate judges’ practices and preferences.  That can go a long way. 

Can you comment on the Southern District of California’s operations during the pandemic?

Thanks to my predecessor, Chief Judge Larry Burns, and Judge Anthony Battaglia, our Court never shuttered.  They formed a Strategic Committee soon after the pandemic began. 

We figured out a way to address our criminal and civil cases through virtual telephone conferencing at all stages, except for trial.  If you look back at the last 15 months or so of this pandemic, there were six months when our county was shut down.  The rest of the time, there were limited openings, and we took advantage of them.  We were open during those periods and conducted jury trials. 

We have some backlog in our criminal cases, but it is not enormous.  Once we fully open starting on July 6, I think it’s not going to be long before we are caught up.  There is no backlog in our civil cases because we have been timely addressing law and motion matters.  Our magistrate judges have also been able to do virtual early neutral evaluations, case management conferences, and settlement conferences, so we have been very efficient.

What is the current status of the Court with regard to COVID-19 restrictions? Is the Court fully open?

Yes, the Court will be fully open effective July 6, which means that there will no longer be limits on the number of jury trials we can have going at one time in the courthouse.  Until July 6, we have been limited to a maximum of five jury trials per week due to social distancing requirements.

The only restrictions still in place are per the CDC guidelines.  Those who are not fully vaccinated are still required to wear masks and to socially distance.  However, each judge in his or her own courtroom will have the discretion as to how they want to proceed in terms of social distancing.  For example, a number of judges may just put all of their jurors in the jury box and let them know that if they are not fully vaccinated, they need to wear a mask.

Do you foresee a new normal where virtual appearances are considerably more common than they were before?

I think that we will see more virtual proceedings, especially in civil law and motion hearings.  I have been using videoconferencing or even just telephone conferencing for law and motion arguments during the pandemic, and I think that it has been very efficient.  It also saves the parties a lot of money, and makes it easier for the media to dial in and listen to the proceedings.  Since lawyers are not flying all over the country, the carbon footprint is reduced.  There are a lot of benefits.

Right now, the local rules contemplate in-person appearances for early neutral evaluations, case management conferences, and settlement conferences.  When the President declares an end to the national emergency, we will default back to those local rules.  In the meantime, the Court’s Lawyer Representatives, with the assistance of the local chapter of the Federal Bar Association, conducted a survey to see how lawyers, private neutrals, and magistrate judges feel about virtual appearances.  We have a committee studying the survey results and making a determination about whether or not the Court should allow virtual appearances for our civil conferences going forward. 

Is there anything else you would like to say for this interview?

I would emphasize what we already touched on earlier – the importance of civility and professionalism.  As large as our town is, we really are a small bar.  So many of us know each other, and judges talks about the lawyers who appear in their courtrooms.  Reputation is important.  It takes a lifetime to earn and keep a good reputation, but a single misguided act can change all of that.

Interviewer Information: Judge Sabraw was interviewed by Christian Andreu-von Euw, an attorney at Morrison & Foerster, LLP.  His practice focuses on complex commercial litigation, trade secret litigation, patent litigation, and other disputes involving technology companies.

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