Malcolm F. Marsh: A Judicial Philosophy of Kindness–Lifetime Service Award 2020


When cases came into chambers, if they involved insurance law, contracts, or product liability, his staff knew that all we had to do was bring him the briefs. He knew those areas of the law so well – in fact, most of the Oregon cases on those topics listed Marsh “on brief” – he needed no assistance from us. For everything else, he wanted thorough research and analysis. It took some time, but I began to see a pattern in his questions and I became better at preparing him for hearings and trials by predicting what he would ask and what he would need. We’d dig for the facts and work to identify the key case or cases.  Working with him for 14 years, I never once saw him take the bench unprepared. He’d reset a hearing rather than walk out cold. He always had questions, often written out in advance and delivered to counsel beforehand if possible. His questions were never academic; they were crafted with an eye towards ensuring that his rulings were legally correct and logically sound.  And they were never mean-spirited or designed to humiliate a lawyer.

Just like a good parent knows not to raise certain subjects with a child in front of her friends, Judge Marsh knew that lawyers represented clients and that those clients were often in the courtroom observing everything that took place.  Clients expect zealous advocacy and they lose faith in lawyers who are reprimanded by the bench. Judge Marsh knew that dynamic well. And he knew that hearings and trials serve many distinct purposes. When a lawyer became too vitriolic or too harsh with a cross-examination, the judge would take a recess. He’d ask all counsel to join him in chambers (without clients) and he’d gently pull the lawyer aside and tell him to “simmer down.” In one contentious criminal case, he directed the opposing lawyers to shake hands, which prompted them both to laugh as they re-entered the courtroom.

Judge Marsh also knew that senior partners like to take center stage. They still do. But this often meant that the lawyers who had done all of the preparation work for a hearing or trial – often the women or people of color – would have no speaking parts. Instead, they would frantically pass notes (today it would be instant messages). Knowing all of this, Judge Marsh routinely turned to the young associates seated near the senior partner, and he would focus some of his questions directly to those people. He knew that these young lawyers progress would be enhanced by some genuine court time, and he knew that it would not happen without a little judicial intervention.

For his clerks, Judge Marsh loved to talk trial strategy during breaks. He loved a great cross-examination, was vexed by bad ones, and he generally believed that lawyers used too many exhibits and asked far too many questions. Simplify, tailor your case to the jury (not yourself), and tell a captivating story – that was how he liked to try cases, and those were the trials that he really enjoyed. Those and the trade dress case involving the Leatherman Pocket Survival tool; that case had dozens of tools as exhibits and he absolutely loved getting to try them all.

Only once did I see him lose his temper. [That’s not entirely true. He hates staples. He loved three-ring notebooks and tabs on everything, but nothing went into a notebook with a staple or he would rip it out (with prejudice). In my entire 14 years with him, I never refilled my stapler. When I joined the U.S. Attorney’s Office, I bought the best stapler I could find and then stapled documents with abandon. I still enjoy a good staple!] The circumstances were egregious. A company that owned a 747 leased to a cruise line wanted its plane back because the cruise line had defaulted on its payments. The cruise line admitted as much, and Judge Marsh granted a temporary restraining order directing the plane’s return to its owner. The cruise line read the order liberally, deciding that it could return the plane a few days later. When the plaintiff reported the contempt, Judge Marsh was not pleased. He directed me to call the U.S. Marshal’s Office and to send “that big guy.” I knew who he meant. It was Big Wayne. Big Wayne was a regular in the weight room and he filled a doorway. When Judge Marsh took the bench, he told defense counsel that if the plane wasn’t returned by day’s end, Big Wayne would be slapping handcuffs on defense counsel and he’d be spending the night in a Marshal’s holding cell. Plaintiff got the plane back.

Anything short of bald-faced contempt was generally met with Judge Marsh’s gentle guidance. For example, a young, uncooperative Black woman was facing significant charges for distributing drugs with her boyfriend. She would fold her arms and lay her head on counsel table, as if she were bored with the proceedings. One day, defense counsel asked for a status conference because she believed that her client had been misidentified; her father drove down from Seattle and confirmed that the young woman had been using her older sister’s identification and that our defendant was in fact her 16-year old sister. Defense counsel asked that the case be dismissed. Judge Marsh declined – not because he wanted to see the girl prosecuted, but because he wanted to help her within the federal system.  He made some calls, lined up some counseling, and after she resolved her federal case, she eventually enrolled in community college. Judge Marsh helped pay for her education and he gave me $200 to take her shopping for clothes. And she was just one of many recipients of his quiet grace; Judge Marsh and his late wife Shari financed college educations for a number of young, promising members of Portland’s minority communities.

Judge Marsh’s largest gift to Oregon’s legal community is the Mark O. Hatfield U.S. Courthouse. The sixteen floors of glass, cherry wood, and marble, the artwork, and the courtrooms designed to maximize line of sight and sound are all the product of his vision for the court.  It was a lengthy process that involved fund raising, acquiring the land, levelling the old fleabag Hamilton Hotel, an archeological dig, construction, and a 1997 move-in date. Judge Marsh was the courthouse’s advocate and champion. He worked tirelessly to see it through to completion all while maintaining a full district court caseload, and building shelves, doll houses, and bunk beds for his grandchildren.

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