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Bar News - January 15, 2010


A Hard Act to Follow: Magistrate Judge Muirhead to Retire

By:


Hon. James R. Muirhead
First appointed US Magistrate Judge in 1995, James R. Muirhead is retiring in the spring of 2010; he has served two terms.

Muirhead’s successor has yet to be chosen. The Merit Selection Panel appointed by Chief Judge Steven J. McAuliffe will submit its nominations Jan. 15 and deliberations for a successor will follow thereafter. The application period closed on Nov. 13, 2009.

Judge Muirhead’s career on the bench will be a hard act to follow. Known for his firm but fair approach, he has often reminded attorneys of their responsibility to tone down discord and incivility. On several occasions, he has quoted the NH Bar’s Litigation Guidelines to them in court.

His hallmark achievement, however, is the cleaning up of discovery abuses. "I have tried to even the playing field for the parties and attorneys; I have stressed the importance of following the rules fairly and non-abusively. At the same time, the language of law as it is written has to be followed," said Muirhead in a recent interview with Bar News. "For instance, if the verb is ‘shall’ I couldn’t interpret it as ‘may’. Of course, Judge Barbadoro has said I was the right person to clean up our discovery practices, not just because I had been a litigator, but also because ‘the devil that did is the devil that knows.’"

Muirhead was considered among the top litigators in the state during his time as a trial attorney. "That was one of the most exciting times of my life," he says. Hired right out of Cornell Law School by the McLane, Graf, Raulerson & Middleton firm in Manchester, Muirhead practiced there trying cases from 1966 until his appointment to the bench in 1995.

During this period he tried many notable cases, among them a case before the late US District Court Judge Hugh Bownes involving PCBs and mink ranchers. He and his partner, Stan Brown, and Orr & Reno attorney Ron Snow worked together on the case and won a large judgment against Monsanto and Agway. "That’s when my long friendship with Ron Snow began," he says. "We were trying to save the livelihood of several mink ranchers whose animals were dying because of the pollution in their feed."

Judge Muirhead demands efficiency and promptness from himself and everyone who works for him. He handles many pro se cases and is responsible for all the initial reviews. "Every pro se complaint, prisoner and non-prisoner, is reviewed promptly and with full consideration."

What does a magistrate judge do?

"My court is a court of limited jurisdiction," said Muirhead. "It’s a constitutional and statutory court; we don’t deal as much as our state courts do with common law."

Magistrate Judge Muirhead has helped change the role of the magistrate judge on a national scale. When he became judge, the NH District Court saw fit to give its magistrate judge the full power of the position. The example of New Hampshire’s district court judges to fully utilize the magistrate judgeship has been increasingly followed across the country.

"I have also done a lot of mediation both before and since becoming a judge," said Muirhead. "In addition to hundreds of facilitative mediations, I have acted as a ‘settlement judge’ frequently. Besides resolving discovery disputes, I also handle all the initial criminal appearances and bail hearings, and have my own civil docket. When Judge Devine died unexpectedly in 1999, I took on a lot of his cases in addition to my own."

The district courts are responsible for hearing offenses and crimes committed in the national forests and national parks. "I am responsible for deciding those cases," Muirhead said. Muirhead is also the "jury judge" for the District Court, impaneling and supervising all the grand juries.

Some of the civil cases he has handled involve the Telecommunications Act, Social Security Administration appeals, § 1983, the Federal Tort Claims Act, the Lanham Act, unfair business practices, various discrimination claims, Habeas Corpus petitions, and state law claims like contract disputes, negligence claims, fraud, and property disputes.

When matters come before him based on consent to his jurisdiction, he handles everything in the case, up to and including the trial. If a matter comes before him by referral of a district judge (for example on preliminary injunctions, motions to dismiss, and motions for summary judgment), he issues a Report and Recommendation.

Contributions to the Bar

Muirhead was a member of the Board of Governors for 12 years. He was a Board member when Supreme Court Rule 53 was enacted. When the Continuing Legal Education (CLE) requirement was made mandatory, Muirhead was part of the committee that hired the first CLE director.

As members of the "Junior Bar Committee" (years ago), he and two other then-young members of the committee also started the Practical Skills program. "We went to Judge Kenison and asked for help in starting the course. He supported us enthusiastically, and we got some funding from the Bar. Fred Upton was president at the time and he helped us secure a grant for $3500. Our plan was to sell our manual to experienced lawyers at a price that allowed us to give the new members the practical skills manuals free."

These innovations became a permanent part of the Bar’s activities.

Muirhead says he reads constantly to keep up with everything in the law. "I read and read and read." He also reads for fun - particularly history books and mysteries. Among his favorites are the Anne Perry historical mysteries set in Victorian England.

After retirement from the bench, he is considering either a mediation and arbitration practice, or service as an "ad hoc" (part time) recall magistrate judge, working both in New Hampshire and other federal courts across the country that need temporary help.

"A very funny guy"

The judge has four grandchildren and spends a lot of time with them, taking them to museums or hiking or fishing. Muirhead loves the outdoors. He also loves to travel and says his favorite places - so far - have been Greece, Israel and the Galapagos. After he retires, he and his wife will travel more.

Muirhead also loves baseball - and especially the Red Sox. "But I like the Fisher Cats, too," he says, "and I go to a lot of their games."

He has many great trial stories (he taught trial advocacy at Pierce Law for many years) and may even consider writing a book sometime. "I’ve thought about it," he says. "Many of the cases have a humorous moment that the public doesn’t see."

Judge Muirhead is considered "a very funny guy" by friends and colleagues. "He loves to laugh," says Dan Lynch, chief deputy clerk of the District Court. In fact, there is a poem by Judge Muirhead that has become quite famous. In Wolff v. NH Department of Corrections, the plaintiff filed a hard-boiled egg as part of his preliminary injunction request. Judge Muirhead composed the following poem:
"No fan I am
Of the egg at hand.
Just like no ham
On the kosher plan.

This egg will rot
I kid you not.
And stink it can
This egg at hand.

There will be no eggs at court
To prove a clog in your aort.
There will be no eggs accepted.
Objections all will be rejected.

From this day forth
This court will ban
Hard-boiled eggs of any brand.
And if you should not understand
The meaning of the ban at hand
Then you should contact either Dan,
The Deputy Clerk, or my clerk Jan.

I do not like eggs in the file.
I do not like them in any style.
I will not take them fried or boiled.
I will not take them poached or broiled.
I will not take them soft or scrambled
Despite an argument well-rambled.

No fan I am
Of the egg at hand.
Destroy that egg!
Today! Today!
Today I say! Without delay!"

(So ordered, with apologies to Dr. Seuss.)

When he leaves, Judge Muirhead will be missed, not only for his fine legal mind, but also for his sense of humor.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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