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Always Determined to be a Judge: in the Spotlight with Brian Cogan

Alumni Spotlight Interview

A conversation with alum Judge Brian Cogan

After 25+ years at Stroock, where he maintained a commercial litigation practice, Judge Brian Cogan left to become a judge. Appointed by President George W. Bush to the District Court for the Eastern District of New York in 2006, Judge Cogan is now the Senior Judge of that court. Judge Cogan has presided over some very high-profile cases, including the trial of Joaquín “El Chapo” Guzmán, which ended with a guilty verdict and is currently on appeal.

Judge Cogan graciously agreed to talk to us about his career, the joys and challenges of being a judge, the post-COVID future of virtual hearings, what makes a great litigator, and a host of other issues.

Q: Did you always want to be a judge?

BC: Yes. I always did. I think if you check with any of the litigators I worked with who are still at Stroock, they will say, “Oh, yeah, from day one he wanted to be a judge.” I know I had a conversation with Chuck Moerdler about a year or two after I started at Stroock and I asked him what’s the best way to become a federal court judge. I told him I was thinking that I should go work at the U.S. Attorney’s office because a lot of them are made judges from there. He said, “Stay here. It’s just as good a platform, and if you are going to get it, you can get it from here.” So I took that advice and that’s what happened.

Q: You were at Stroock for a very long time, 25-26 years. Tell me about your time at Stroock. What did you enjoy most about working at the firm?

BC: I really enjoyed the camaraderie that I had with my partners. We had regular weekly meetings, which were serious, but also a lot of fun. I liked that even beyond those meetings, I could walk into the office of anybody who had a similar case and ask for advice on a matter. Everyone’s door was always open and everyone was anxious to talk. It was really rewarding to have a group of people to rely on.

The other thing I enjoyed was working with associates. As I got more senior, I had more responsibility for direction.  I was able to tell early on who was going to make it as a lawyer and who was not.  Out of the dozens or even hundreds of associates I worked with at Stroock, about a third of them at my instigation have gone on to achieve very good things in the law, whether as partners or special counsel at Stroock or someplace else or as in-house counsel. And about two-thirds are tending bar, not literally, but they’re doing something else instead of practicing law.

When I spotted early on that the law wasn’t for particular associates, I told those associates flat out that they weren’t good enough to be lawyers. A lot of people left the firm because of me and are now in another field, but a lot of the people I was able to work with, like Jamie Bernard, really blossomed and built very important careers.

Q: That kind of honesty can seem cruel, but I guess, in a way, it’s actually a gift.

BC: A lot of people go into law because they don’t know what else to do. When I was going through law school, there were very few jobs in Big Law that people could get. So, if you were lucky enough to get one, you just jumped in and you stayed in until you were told to leave. People didn’t give enough thought to whether this is where they ought to be. I felt that if I could help people with that, I would be contributing much to those who belonged in law and those who didn’t.

Q: Was it a difficult transition when you began as a judge?

BC: Judges don’t have the type of atmosphere we had at Stroock. I have four people in chambers and that’s my universe. So that took some getting used to.

Q: Being a judge and working for a law firm is so different. So how did your law firm experience prepare you to preside over cases?

BC: Yes, it’s very different. The big change was that as a lawyer, you have very little control over what happens. You have to answer to a client, an adversary and a judge. As a judge, I have all the control. In that sense, it’s a much easier, less anxious practice. I think what I learned from being at Stroock for all those years is that there really is no such thing for a litigator as being too aggressive, as long as you’re polite. You have to chase things down all the time. I still do that as a judge. I have my hands in every case. As a lawyer, I really burrowed in and made sure every detail was covered. I still do that today as a judge.

While at Stroock, I got a number of cases where I had to perform in court under very tense situations. There were some bankruptcy cases, some civil litigations, for example with Al Hellerstein on the Agudas Chabad case in the Eastern District of New York. Not that I felt in danger physically, but the courtroom was packed with people who were hostile to our case and they were glaring at us. It was a lot to get used to as a young lawyer. Once I went into court and did all that, it wasn’t hard for me in high-profile cases to walk into a court filled with reporters and the public. As a judge, it was a lot easier than it was as a lawyer because, as a judge, I’m in charge. So it wasn’t nearly as intimidating as the first couple of times I ran into hostility as a lawyer while at Stroock. 

Q: What are the greatest challenges you faced when you first became a judge?

BC: When I started out, not knowing an area of law happened constantly. It was a bit daunting at times, particularly on the criminal side. Everything was new in those first few years and still, when something new comes along, it’s generally a criminal matter. But now, I know a lot more than I did. It’s unusual for me to get into an area I know nothing about, at least by analogy. 

I almost never saw criminals in my law practice (at least none who had been indicted). That was new for me when I took the bench. But I got a lot of courtroom experience while at Stroock and courtroom experience is easily transferable between civil and criminal matters.

Q: Which types of cases do you find the most engaging?

BC: Although I’ve had some very high-profile cases, I actually really enjoy the small cases, ones closer to the kind of cases I handled at Stroock. Not that anything is small when you get to federal court, but smaller matters. I love sitting down with the lawyers and engaging in an animated discussion with them about the merits or lack of merits of their case. I do that early on, about six weeks after the complaint has been filed. I make the lawyers get prepared for my own cross-examination on the case. I really like that. It gives me a chance to be a lawyer again, but with more control. 

Q: Why do you like those sitdowns so much?

BC: You see a lot of the lawyers’ personalities. You get involved in the legal issues in a way appellate judges don’t. I have a lot of fun with the personalities. For example, earlier this week I had a slip and fall case. The plaintiff had a prelitigation inspection of the floor in the institution where the fall happened and he wanted another inspection of the floor. He claimed that the defendant didn’t allow a thorough inspection.

I asked the lawyers, “Are you sure you want me to resolve this?” The lawyers laughed, recognizing that it was such a petty matter. I told them, “I’ll resolve it, but the odds are that if I have to resolve it, I will hit one of you with attorney’s fees.” I told them we can all come back in a week and we’ll have an evidentiary hearing about who was telling the truth regarding the first inspection. An hour later, I got a letter from the lawyers saying they resolved the issue. It was a silly and inconsequential matter. I saved both sides time and money. By getting them a little nervous, I got them away from the silliness.

Q: Is that hands-on approach typical for judges?

BC: I do a lot of legal education for judges and I have communicated the need for judges to be hands on. One of the things I learned at Stroock was that if the judge isn’t hands on, the case will go wild and the lawyers will be out of control. Recent amendments to the federal rules encourage a more hands-on approach. However, I can’t say that there has been widespread acceptance of my approach.

Q: Which types of cases do you consider to be the most difficult?

BC: For me, it’s the criminal cases. You’re dealing with someone’s freedom and the level of protection is so multilayered and nuanced. There’s all this opportunity for something to go wrong at each stage of the proceeding. So you have to be particularly careful with everything you do or don’t do.

Q: What makes a trial lawyer truly outstanding?

BC: There are two elements that a trial lawyer needs. The first one is preparation. All judges will tell you that. But I think even more importantly, what distinguishes good lawyers from bad lawyers is perspective. I see too many lawyers who only see their side of the case. They don’t see the weaknesses and vulnerabilities. Litigation is all about perspective. The lawyers with the best perspective are the ones that will get the best results for their client.

Q: Where do litigators really go wrong?

BC: The lack of perspective. They dig in and don’t listen. They fail to adequately weigh a fact or legal principle. You have to think about how the other side will view things, what the judge’s likely perspective is and what the judge will likely conclude based on the competing perspectives of the parties’ lawyers. That is really the art of lawyering.

Q: COVID has introduced virtual hearings for motion practice and at the Supreme Court. Do you see virtual’s use expanding?

BC: Yes, I do. Pre-COVID, I was one of those judges who would require lawyers to be present for the initial status conference. I wanted to look them in the eye and let us get to know each other. What I found in the COVID era is that they can get to know you by what you say. Telephone and video conferences have worked out really well during the COVID period. You really don’t lose a beat on most things other than a jury trial. The technology works and lawyers are getting more comfortable with it. I don’t think we’re ever going to go back to the number of in-person appearances we had before, at least I’m not.

Q: Anything else you’d like to share?

BC: I hope that the associates at the firm have the kind of mentorship that I had when I was coming up. Mentorship is not a right. It’s something you have to earn by demonstrating raw legal ability. But once it’s earned, people should recognize that you earned it. I had great mentors when I was at Stroock. They really steered my entire career. Five people in particular: Chuck Moerdler, Al Hellerstein, Larry Greenwald, Joe Forstadt, and Jay Mayesh. But for them, I wouldn’t have learned to be a well-rounded lawyer and I wouldn’t have gotten to the bench.

I hope the firm still does offer that type of mentorship. I expect that it does because Stroock has a lot of good lawyers there now and it should be able to bring associates along in the way the generation ahead of me brought me along.

Note: We would have loved to have learned about Judge Cogan’s experience on the Guzmán case, but that recently went on appeal so he was not able to discuss it. Perhaps, once the last appeal has been decided, we can revisit Judge Cogan and hear about what it was like presiding over that case.