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Federal Civil Practice
The newsletter of the ISBA’s Section on Federal Civil Practice

September 2013, vol. 12, no. 1

Judicial profile: Thomas M. Durkin

District Judge Tom Durkin has been on the bench for about eight months, after being confirmed by the Senate in December of 2012. The Section on Federal Civil Practice continues its tradition of introducing you to our new judges and brings you a profile of Judge Durkin.

Judge Durkin graduated from the University of Illinois with honors in 1975. He received his law degree with honors from DePaul College of Law in 1978. While at DePaul, Judge Durkin had the good fortune to extern with Judge Roszkowski, who then had chambers in the Dirksen Building. After law school, Judge Durkin served as a law clerk for Judge Roszkowski. Because Judge Roszkowski was also assigned to Rockford, Judge Durkin would occasionally travel to Rockford with the judge for trials and to handle the call there.

Interestingly, Judge Durkin succeeds Judge Roszkowski in a way. When Judge Roszkowski assumed senior status, Judge Wayne R. Andersen filled that judicial vacancy. Judge Durkin now assumes the vacancy created by Judge Andersen’s retirement. And it is fitting that he assumes the seat once held by Judge Roszkowski, a man Judge Durkin calls “a role model for life.” In turn, Judge Roszkowski said that Judge Durkin “possesses the kind of temperament which will enable him to be a superb trial judge.”

After his clerkship in 1980, Judge Durkin became an Assistant United States Attorney in Chicago. For 13 years, he prosecuted a wide variety of cases and he served in many leadership roles, including Chief of the Special Prosecutions Division, Chief of the Criminal Receiving and Appellate Division, and First Assistant United States Attorney. He tried many cases, working with some of the best attorneys in Chicago. In 1987, he worked on the case convicting former Illinois Gov. Dan Walker on bank-fraud charges. He also helped to secure the convictions of former Ald. Fred Roti, former State Sen. John D’Arco and former Cook County Chancery Court Judge David Shields.

In 1993, Judge Durkin joined Mayer Brown as a litigation partner. Engaged on many different kinds of cases all over the country, he handled white collar criminal cases, patent litigation, class action cases, product liability and other large cases; but he always took on duty day criminal cases and was appointed counsel in many other matters in both federal and state court.

Nominated by President Obama in May of 2012, he was confirmed in December. Judge Durkin’s opening docket contained 325 cases, randomly assigned to him from the other judges. That number, not surprisingly, has grown. On the civil side, he inherited many fully briefed motions that he is diligently working on deciding. About a month after assuming his judicial duties, Judge Durkin went on the criminal wheel. He has not yet had a criminal trial, but has accepted a guilty plea.

On Judge Durkin’s docket are many cases, including Title VII and prisoner litigation. He also has many excessive force cases, which are the subject matter of all six of his jury trials thus far. One area that is new to him is consumer class action cases. He has trials scheduled nearly every week for the rest of the year.

In addition to Judge Roszkowski, Judge Durkin has benefitted from the wisdom of his new colleagues—colleagues he now calls by their first names, but still instinctively calls “judge.”

Already setting policies in his courtroom, Judge Durkin strives to make status hearings meaningful. If the attorney with knowledge of the case has a scheduling conflict, he is willing to reschedule the hearing to a better date. Similarly, he allows attorneys outside the Loop to call into status hearings but requires that attorney to be present for substantive arguments. Aside from issues if the attorney is on a cell phone, the sound system in the courtroom allows for ease of communication, passing on savings to clients.

Judge Durkin advises that if you file a lawsuit, you should be prepared to go to trial. The Northern District is a trial court, after all. To keep cases moving, Judge Durkin keeps notes on each case and reviews those notes and the transcript of the previous hearing before the next status hearing.

As for motions for summary judgment, no party can file such a motion without first attending a meeting in chambers. This practice is discussed on his court website. Judge Durkin asks the parties to discuss the uncontested facts and finds that parties can more realistically gauge settlement at this time, prior to incurring the large costs of preparing summary judgment papers. This is also an opportunity for the judge to become more familiar with the case.

Judge Durkin refers parties to the assigned Magistrate Judge for settlement conferences. He does so because of time constraints, which will grow with an increasing criminal caseload, and because the Magistrate Judges are true experts at dispute resolution. He is flexible about staying discovery if it would assist settlement or eschewing the referral if a conference would not be helpful.

As for trial practice, Judge Durkin believes that firm trial dates move cases along, and thus he is loathe to revisit them. One week prior to trial, he meets with the parties at a pretrial conference and discusses each witness on both the will and may call list. At this time, witnesses may indeed be cut. He does not require trial briefs in jury trials. If a party does not object to an exhibit in the pretrial order, it still should be moved into evidence but a foundation is not required. Instead of listing every exhibit possible, Judge Durkin will allow the use of an exhibit that was not included in the pretrial order if it was produced in discovery and will not be a surprise to the other side. Again, his website contains the particulars about this procedure.

Asked about his judicial philosophy during his nomination process, Judge Durkin highlighted the need for a judge to be fair, to treat others with respect, and to be patient with an open mind. He believes that an early case assessment is helpful.

At his installation, Judge Durkin spoke about his life and career. He is one of eight boys raised in the Chicago area. He speaks of his “luck” in being raised by his parents, going to U of I and DePaul Law, and having each position he has held. Not to be disagreeable, at his swearing in his colleagues noted his judgment, his smarts, and his demeanor. They concluded that it wasn’t luck but hard work. Durkin also credits his wife and four children for his success.

Judge Durkin says he loved practicing in federal court, so his new position is a dream come true. So far, the position has exceeded his already great expectations. Our Committee welcomes Judge Durkin! ■