Judge Lowe Interviews Judge Peebles

Judge Peebles

Retired United States Magistrate Judge David E. Peebles

On September 26, 2019, former United States Magistrate Judge George H. Lowe interviewed retired United States Magistrate Judge David E. Peebles for the purpose of memorializing Judge Peebles’ lengthy and impressive career. What follows is a summary of the information provided by Judge Peebles in that interview.

Family

David E. Peebles was born in 1949 in Syracuse. He grew up on Onondaga Hill and attended school in the Westhill Central School District. He has two younger siblings, a brother and a sister. His mother Betty was a piano teacher, and his father worked for Solvay Process Company, then Allied Chemical Corporation. By happenstance, his father’s boss was the father of fellow United States Magistrate Judge Andrew T. Baxter. At age 12, his family moved to northern New Jersey. He graduated from Morristown High School in 1967. After high school, his family returned to Syracuse.

Choice of College

While a student at Morristown High School, Dave was “pretty good at math and science,” so he wanted to be an engineer. He was accepted by Brown University, Rensselaer Polytechnic Institute, the University of Michigan and the University of Pittsburgh, but he didn’t like the geographical areas. When he visited Georgia Institute of Technology in Atlanta, he fell in love with the place. Moreover, because Georgia Tech. was a state school, the tuition was cheaper than at Brown and RPI. As a result, upon his graduation from Morristown High School in 1967, he attended Georgia Tech.

Undergraduate Studies

Dave chose to major in aerospace engineering over other types of engineering (e.g., civil engineering, electrical engineering, mechanical engineering, etc.), because, in the late 1960s, aerospace engineering was “the hot area,” producing students who were wined and dined and hired for well-paying jobs upon graduation. Unfortunately, in the early 1970s, the aerospace engineering market bottomed out.

Decision to Go to Law School

By his third year of college, Dave had decided he didn’t want to sit in an office all day designing planes. He liked people, he liked arguing, and he had joined the local chapter of Toastmasters International. His mother’s brother—Donald H. Miller—was a role model of sorts. Don was a lawyer in the trial department of the Hiscock & Barclay firm with his next-door-neighbor Howard G. Munson. (Don would go on to become a New York State Supreme Court Justice in 1974, and Howard would go on to become a United States District Judge in the Northern District of New York in 1976. A quarter of a century later, the two men, unbeknownst to one another, bought adjoining plots at Oakwood Cemetery.) As a result, Dave decided to go to law school. At the time, he had no intention of becoming a patent lawyer, believing the practice “sounded boring.” He received a B.S. in Aerospace Engineering with honors from the Georgia Institute of Technology in 1972.

Choice of Law School

Because Dave had graduated from Georgia Tech near the top of his class, Emory University School of Law in Atlanta offered him a scholarship. However, he understood the usefulness of attending law school in the area in which he wanted to settle down and practice law someday, and he had no interest settling down in a large city and working in a sweat shop in a large firm. He liked the lakes, mountains, arts and college sports offered by Central New York, which he decided was a nice place to raise kids. As a result, he chose to attend Syracuse University College of Law.

Studies in Law School

Early in law school, Dave recalls receiving a lengthy nightly reading assignment from a professor and asking a classmate in disbelief, “This is for the whole semester, right?” to which the classmate laughed. Dave estimated it was more material than he had read in all of college.

He made the adjustment from studying engineering to studying law, and did well enough in his classes to make it onto the Syracuse University Law Review. However, he was later kicked off of Law Review because, he was told by an editor, “You can’t write.” Looking back, Dave recalls his writing as “probably not so great.” But he says getting kicked off of Law Review “opened some doors” for him.

With his newfound time, he decided to obtain some practical experience. Back then, Syracuse University didn’t have many clinical programs. As a result, he started clerking at the Onondaga County District Attorney’s Office. He summered there between his second and third years, and worked 20 to 30 hours there during his third year.

Upon receiving his J.D. with honors from the Syracuse University College of Law in 1975, Dave was offered a job with the Onondaga County District Attorney’s Office. With a shy smile, Dave recalls how he received the job over the Law Review’s form and accuracy editor, whose writing the hiring district attorney said was “too flowery.”

Position as an Assistant District Attorney

Dave worked in the Law Unit of the District Attorney’s Office, first as a law associate and then as an assistant district attorney. His supervisor was at first John A. Cirando and then Doreen A. Simmons; and after a year Dave became the supervisor of current-Onondaga County District Attorney William J. Fitzpatrick. Other notable attorneys in the office at the time included current Senior United States District Judge Norman A. Mordue, Emil M. Rossi, Robert J. Rossi, John M. Shannon, Michael C. Cogswell and David S. Howe.

While in the District Attorney’s Office, Dave worked on the investigation of lawyers Frank H. Armani and Francis R. Belge, for possible misconduct during their representation of serial killer Robert F. Garrow, Jr. See In re Armani, 79 Misc.2d 231 (N.Y. Cty. Ct., Onondaga Cty., 1974); People v. Belge, 83 Misc.2d 186 (N.Y. Cty. Ct., Onondaga Cty., 1975), aff’d, 50 A.D.2d 1088 (N.Y. App. Div., 4th Dep’t 1975), aff’d, 41 N.Y.2d 60 (N.Y. 1976).

However, Dave mostly handled misdemeanors in City Court. Doing so didn’t teach him how to prepare for trial (because the busy schedule afforded him no time to prepare); but it taught him how to think on his feet.

Dave was on the cusp of handling felonies when a change in leadership at the District Attorney’s Office prompted him to change jobs in November of 1976. (The District Attorney, Jon K. Holcombe, had recently left office, causing Governor Hugh L. Carry to fill the position with former City of Syracuse Corporation Counsel Edward P. Kearse, who was running against Richard A. Hennessy, Jr.)

Position as a Law Clerk to a United States District Judge

Recognizing that a job as a law clerk to a federal judge was “a golden opportunity” to learn how to practice law in federal court, Dave applied for and received a two-year position as the first law clerk of newly appointed United States District Judge Howard Munson, who had filled the seat vacated by Edmund Port. Dave was especially appreciative of the job, which offered slightly higher pay than did the District Attorney’s Office, because at the time his wife was pregnant.

Judge Munson’s Courtroom Deputy at the time was Al Doggett; his secretary was Denise Gray; and Dave’s co-clerk became Richard Kopek. They worked in the Annex to the current federal building in Syracuse. Because Dave’s desk was closest to the front door to the chambers, he also served as the de facto security officer, intercepting members of the public who at the time were free to roam the halls and wander in.

The first case that Dave worked on was a 12-week bench trial litigated by famed New York City lawyer, S. Hazard Gillespie. See United States v. Morton-Norwich Prods., Inc., 461 F. Supp. 760 (N.D.N.Y. 1978). Over the years, Judge Munson came to “pretty much” rely on the writing of his law clerks, including Dave’s. Dave can still vividly recall Judge Munson’s booming voice and wry sense of humor.

One time, when Judge Munson sentenced a 65-year-old convicted child pornographer to a 50-year sentence, the man said, “Judge, I don’t think I can do that sentence,” to which Judge Munson responded, “Do the best you can.”

Numerous other times, when Judge Munson felt a lawyer was showing incompetence, he would inquire, in his booming voice, whether the lawyer attended law school. When the lawyer meekly responded yes, Judge Munson would respond, “Then you should demand your money back!”

Dave recalls clerking for Judge Munson as being “a wonderful two years.”

Position as an Associate then a Partner at Hancock & Estabrook

Despite the fact that both Judge Munson and Dave’s uncle had worked at Hiscock & Barclay, Hancock & Estabrook employed both Doreen Simmons and David Howe, who had been with Dave at the District Attorney’s Office. Other renowned lawyers at the firm at the time included Paul M. Hanrahan, John F. (“Jack”) Gates, Donald P. McCarthy, and Walter (“Bucky”) Mahar. So Dave applied for and received a position as an associate at Hancock.

Dave was hired as what he calls “a utility infielder.” Although his office was physically located in the labor and employment department, he did a variety of work, including arbitration, for both that department and the environmental department. Because he had a background in federal court, which was rare at the time, he was sought after to work on cases involving federal litigation. In addition, because Hancock handled all the Upstate New York cases litigated by the American Society of Composers, Authors and Publishers (“ASCAP”), Dave worked on many copyright and trademark cases. Eventually the firm created an Intellectual Property Department, and asked Dave to become the chair of it. He also went on to serve as a member of the firm’s Executive and Practice Management Committees.

Significant federal court cases that Dave worked on at Hancock included (1) obtaining a jury verdict of approximately $17 million for a Saudi Arabia-born businessman (Abdallah G. Bseirani) in a business dispute regarding the sale of heating, ventilation and air-conditioning equipment to oil-production facilities in Saudi Arabia, see Abou-Khadra v. Mahshie, 4 F.3d 1071 (2d Cir. 1993), and (2) obtaining a jury verdict for union members in a class action suit regarding their medical benefits, see Webb v. GAF Corp., 936 F. Supp. 1109 (N.D.N.Y. 1996). Dave says he loved arguing in the Second Circuit even more than arguing in the Third and Fourth Departments.

In addition, he enjoyed getting to know the United States District Judges in the Northern District, including Edmund Port, who “always had a twinkle in his eye” and Constantine George (“Con”) Cholakas, who “had a wonderful sense of humor.” He recalls his amazement at how Judges Cholakas and Roger Miner would hold oral argument on a dozen summary judgment motions in a day and issue bench decisions on half of them. Years later, he would bring this effective use of oral argument to his job as a judge.

Dave also learned the usefulness for setting a reasonable limit on the time in which parties could present arguments. With amusement he remembers when United States District Judge Lloyd F. MacMahon (S.D.N.Y.), who was sitting as a visiting judge in the Northern District (in Auburn), directed an attorney to submit a two-page memorandum of law by the next morning. When the attorney handed him a twenty-page memorandum of law, Judge MacMahon flung it back at him and said, “Pick your best two pages.”

Selection and Service as a Magistrate Judge

Dave decided he wanted to become a judge because “I always thought that’s where I would want to be.” In addition to liking the law, he liked lawyers and evaluating arguments. Earlier in his career, when he was an assistant district attorney, supervisor John Cirando would tell him, “You give me the answer you think is right, not the answer I want.”

In 1987, Congress created the position of “United States magistrate judge” out of recognition for the level of judicial work that “magistrates” had been doing since 1968, and that “commissioners” had been doing before then. Thirteen years later, Dave was selected as a magistrate judge, on May 22, 2000.

The first trial Judge Peebles conducted was a criminal prosecution of a soldier for hunting turkey in an unauthorized area of Fort Drum Army Base. Grateful that a warning sign had been knocked down, Judge Peebles found the soldier not guilty, then added, “Next time you want turkey, go to Wegmans.”

Because of Judge Peebles’ experience litigating patent cases, his fellow magistrate judges would routinely agree to transfer to him one of their patent cases in exchange for a habeas corpus case, which Judge Peebles thought was a fair deal until a district judge advised him he was being cheated: he should demand the right to transfer away ten habeas cases for every patent case. But Judge Peebles liked the patent cases too much.

Most of his patent cases required that he conduct claim construction. Such cases involved technologies that ran the gamut, from the marvelous such as the voice-assistant Siri (see Rensselaer Polytechnic Institute v. Apple Inc., 13-CV-0633 [N.D.N.Y]), to the mundane such as coaxial cable connectors (see PPC Broadband, Inc. v. Corning Optical Communications RF, LLC, 12-CV-0911 [N.D.N.Y.]). Many of the cases required that he issue report-recommendations on motions for summary judgment. Some of the cases resulted in trial. One of the bigger such cases involved substances composed to combat roadway icing (see Sears Petroleum & Transport Corp. v. Archer Daniels Midland Co., 03-CV-1120 [N.D.N.Y.].)

Judge Peebles’ two most challenging cases were a negligence case by the widow of a soldier against a psychiatrist employed by the United States Department of Veterans Affairs (see Legg v. United States, 14-CV-0838, 2016 WL 9415490 [N.D.N.Y. Nov. 17, 2016]), and a bench trial between two energy companies that delivered to his courtroom stipulations filling 96 bankers boxes (see New York State Elec. & Gas Corp. v. FirstEnergy Corp., 03-CV-0438 [N.D.N.Y.].).

He would characterize one of his funniest moments as when, at the end of a hearing on the exhaustion of administrative remedies, a pro se prisoner observed, “Looks like you’re running the show,” to which Judge Peebles replied, “As a matter of fact, I am.”

He would characterize another of his funniest moments as when, while he was holding a Rule 16 conference in his jury room (his usual location), a lawyer sitting directly to his left opened a brown bag, unwrapped a sloppy and odiferous tuna sandwich and began eating, talking about his client’s case as tuna dribbled down the side of his mouth. Judge Peebles was too floored to say anything at the time, and later decided to chalk the experience up to lack of decorum and situational awareness.

Others might characterize a funny moment as when, during a teleconference, an impatient lawyer said, “I mean, Judge, this stuff doesn’t take a rocket scientist,” to which Judge Peebles replied, “I am a rocket scientist.”

Over the course of his 19 years of service as a magistrate judge, Judge Peebles was selected to serve as a member of the Federal Magistrate Judges Association Board of Directors, a co-chair of the Board’s Rules Committee, and a member of the United States Courts Administrative Office’s Forms Working Group (where he has drafted forms such as one for subpoenaing documents in criminal actions). He currently serves as a member of the Administrative Office’s Magistrate Judges Advisory Group (which gave him a new appreciation for how well magistrate judges are viewed and treated in the Northern District of New York), and a member of the Judicial Conference of the United States’ Committee on Administration of the Magistrate Judges System (which ironically involves, among other things, approving the recall of magistrate judges).

Finally, Judge Peebles served as the Northern District’s Chief United States Magistrate Judge from 2012 to 2019. He jokes that the position “mostly involved herding cats.” He held a video conference with the other magistrate judges before every Board of Judges’ meeting in order to understand and refine issues, so that he could serve as a point of contact for the Northern District’s Chief United States District Judge (first Gary L. Sharpe then Glenn T. Suddaby).

Judge Peebles retired as an active magistrate judge on June 30, 2019.

Treatment of Magistrate Judges in Northern District as Compared to Other Districts

Judge Peebles says that during his travels to conferences across the country, he has come to see the ways magistrate judges are used and treated in other districts, almost always in ways less significant and collegial than in the Northern District.

For example, in many districts, magistrate judges are referred cases only on a case-by-case basis, resulting in little if any continuity. He speculates that he “wouldn’t have been as intellectually stimulated” working as a magistrate judge in another district.

He says that in the Southern District of New York, some district judges wouldn’t know some magistrate judges if they passed them in the hall. He recalls the time when Judge Mordue (while visiting the Southern District) was entering one of the “judge’s elevators” (which are reserved for district judges) and was stopped by a fellow district judge, who believed Judge Mordue to be a magistrate judge from the Southern District.

Judicial Assistant and Courtroom Deputy

During his tenure on the bench, Judge Peebles had only one judicial assistant (Cindy Stevens, who is now the judicial assistant to Senior United States District Judge Frederick J. Scullin, Jr.) and one courtroom deputy (Shelly Muller, who is now the courtroom deputy to Chief Judge Suddaby), whom he proudly considers to have been “the best JA and CRD in the District,” which is saying something in light of the excellence of the District’s other JAs and CRDs.

Cindy had been Judge Peebles’ secretary for a few years at Hancock & Estabrook. Armed with powerful organization skills and unyielding affability, Cindy quickly became the District’s designated “party planner.”

Shelly was with Judge Peebles for all but one of his 19 years on the bench. Having worked in almost every position within the Clerk’s Office before obtaining her MPA degree, Shelly has routinely been called upon by other members of the Clerk’s Office for her advice.

Judge Peebles says that neither person was a “nine-to-fiver.” He says that, because they were so “dedicated and loyal,” he considered them as his co-workers or teammates.

Law Clerks and Interns

In addition, Judge Peebles says he been “blessed to have five wonderful and prolific law clerks”: (1) Kerrie Barney, (2) Melissa Losquadro, (3) Lisa DiPoala Haber, (4) Anne LaFex, and (5) Mary D’Agostino. He says that, because he chose to have a judicial assistant instead of a second law clerk, the dedication and hard work of his sole law clerk became especially important.

He also estimates that he had innumerable interns (an average of two during the school year and two during the summer for each of his 19 years on the bench), including five editors-in-chief of their respective law reviews (usually Syracuse University College of Law). Several of his former interns have gone on to work at Arnold & Porter in Washington, D.C.; and, when he is down there for a judicial conference he meets them out for dinner. He says he enjoys watching all of his former interns’ careers “bloom.”

Other Court Employees

Judge Peebles says it was a pleasure working with former Clerk of Court Larry Baerman, whom he says has always been “revered” in whatever courthouses or conferences Judge Peebles has gone to throughout the country. He says Larry is regarded as a “pioneer” of programs and a tireless contributor to select court-system committees.

Judge Peebles says he has always had a “great deal of respect” for the United States Probation Office for the Northern District and the work they do, especially given the modest resources they are usually allotted.

Judge Peebles that says he holds in “high regards” the Court Reporters he has worked with (including Sue McCurn Byrne, Eileen McDonough, Jodi Hibbard, Diane Martens, and Hannah Cavanaugh), and that he has enjoyed working with the various Deputy United States Marshals and numerous Courtroom Security Officers who have worked in the District over the years.

Service as a Recalled Magistrate Judge

The Federal Magistrates Act provides that a magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to perform substantial service for terms of up to five years in any judicial district by the judicial council of the circuit within which such district is located. On recall, a magistrate judge may receive a salary for such service in accordance with relevant regulations, subject to the payment of any annuity applicable to the magistrate judge.

On July 1, 2019, Judge Peebles began his service as a recalled magistrate judge. (Although he is the first magistrate judge from the Northern District to be recalled, the Northern District has benefitted from two recalled magistrate judges from other districts—Victor E. Bianchini from the Southern District of California and William B. Carter from the Western District of Tennessee.) For a term of three years, Judge Peebles has agreed to decide Social Security cases on consent of the parties. In each case, he thoroughly reads the lengthy papers, holds an oral argument, and almost always issues a bench decision. He completed ten such bench decisions during the twelve weeks between July 1, 2019, and September 23, 2019. His goal is to resolve fifty such cases per year, which is of considerable assistance to the Northern District. In addition, Judge Peebles will be available to handle settlement conferences (particularly in cases on consent before other magistrate judges, who do not feel comfortable conducting settlement conferences in such cases). And, of course, he will be available to handle patent cases.

He works without staff in his former chambers in Syracuse on Tuesdays, Wednesdays and Thursdays, when he is not working from a home office in Florida. Because he is already receiving a full annuity as part of his retirement, he receives no additional income from the court system.

Accomplishments as a Musician

Because Judge Peebles’ mother was a piano teacher, he had to take piano lessons. But his musical interests gravitated toward the trumpet.

When he was a student in Westhill, his trumpet teacher was Stan Colella (the leader of Central New York’s premier swing band, and Emil Rossi’s cousin). When he was a student in northern New Jersey, he was selected as a member of the New Jersey All-State High School Band. When he was a student at Georgia Tech., he was a member of a 10-piece horn band and was selected as first chair in the Georgia Tech. Marching Band (which took him to the Sun Bowl in El Paso, Texas, in 1970). During the summers, he played at resorts in the Catskill Mountains.

In law school, he hooked up with area-orchestra-leader John L. (“Jack”) Kreischer, Jr.; then he went on his own in 1980, forming a four-piece group called “Brass Works.” Later he played with Paul Hanrahan in a seven-piece group called the “Bar Ripsters.” Currently he plays with Onondaga County Bar Association Executive Director Jeff Unaitis in a five-piece group called the “Skan Jam Kicks Band.” They usually play in churches, nursing homes and senior centers.

Former-Magistrate Judge Lowe’s interview of Judge Peebles had just about ended when Judge Lowe said, “One last thing: what’s this line in your bio on the court website about you having played trumpet for the Jimmy Dorsey Orchestra?” “Oh, that,” said Judge Peebles, “Back in college, I took a year off to tour with the Jimmy Dorsey Orchestra.” As Judge Peebles told Judge Lowe about how the band had needed a trumpet player and discovered him playing in college, and how he’d needed a break from school, Judge Lowe just shook his head. Of course, the rocket-scientist-turned-prosecutor-turned-IP-litigator-turned-judge had toured 12,000-miles-per-month by bus with 16 members of one of the most-popular big bands in the world.

Advice to Young Attorneys

Judge Peebles offers four pieces of advice to young attorneys.

First, there is a difference between a litigator and a trial attorney: if you want to be the latter, you need to look for a job (early in your career) working in a district attorney’s office, attorney general’s office, United States Attorney’s Office or Public Defender’s Office. That is likely the only way you are going to gain experience on your feet in the courtroom.

Second, help promote civility in the profession. Emails and texts are no substitute for oral communication between opposing counsel: it is much easier to send a nasty email than to pick up the phone and be nasty to someone. Talk to each other.

Third, even setting aside the limitations on discovery set forth in Fed. R. Civ. P. 26(b)(1), Fed. R. Civ. P. 1 commands parties to secure the speedy and inexpensive determination of every action; as a result, they should strive to keep all expenses (including those incurred as part of discovery) proportional to the importance of the case.

Fourth, and finally, when going to court, be prepared and on time.