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Bringing intelligence without ego to the bench

David Larimer:
Bringing intelligence without ego to the bench

Judge David Larimer returns from his post-trial jury conference looking pleased.
The 12 jurors, who have just handed in an acquittal in a U.S. District Court drug case, did not decide as he would have had he been a member of the panel. This does not disturb Larimer.
He liked answering the questions jurors peppered him with in the post-trial session: What had happened to a second defendant who, after pleading guilty, suddenly was absented midway through the two-week trial? Why had the prosecutor stressed the quantity of drugs seized, when Larimer had instructed the jury to not take the amount into consideration?
One of a minority on the federal or state benches to hold such conferences, Larimer relishes them as an opportunity to clear up questions he cannot address during a trial, as well as for a peek inside the minds of jurors. These talks, he notes, almost always increase his respect for the general citizenry’s acumen and affirms his faith in the seriousness with which people take a charge to sit in judgment of their peers.
A bonus of this particular session: Even though they could escape further jury duty for the next four years, several jurors asked to stay in the pool–more proof that the system Larimer cherishes works.
Appointed as a part-time magistrate in 1983, Larimer was named a District Court judge in 1987 and chief judge of the federal court’s 17-county Western District in 1996.
Larimer both loves his job and is uncommonly good at it, says Michael Hanna, Monroe County Legislature majority leader. The Perinton Republican has known Larimer since high school, and until recently was the judge’s next-door neighbor.
Echoing Hanna is state Sen. Richard Dollinger, D-Brighton, who calls Larimer one of the most intelligent judges on the bench.
Dollinger has been close to Larimer since 1980, when Dollinger, fresh out of law school, became an associate at a law firm in which Larimer was a partner. Despite Larimer’s long affiliation with the Republican Party, Dollinger has remained a sort of protege.
Though Larimer has had his share of high-profile cases–among them the much-publicized Rochester mob trials in the early 1980s, a $5 million armored-car robbery in which a Catholic priest ended up going to jail, and a lawsuit a few years ago that forced the May Department Stores Co. to cede key Rochester mall locations to the Bon Ton Stores Inc.–his love for the job has little to do with getting his name in the paper, Hanna says.
While some judges are enamored of the trappings and status associated with the position, Larimer is virtually without ego, observes Magistrate Jonathan Feldman, a former federal prosecutor and public defender who argued cases before Larimer for 15 years.
Larimer runs what is known as “a hot bench,” Feldman says, meaning he always is up on the law. At the same time, he has more interest in working in chambers for a settlement than going for a precedent-setting decision that will put his name in the law books.
Larimer’s approach, Feldman adds, is “thoughtful and evenhanded,” but never flashy. It is always on the side of the law, whatever his personal feelings might be.
Feldman says he had reason to appreciate the latter trait when, as a public defender, he represented Father Patrick Maloney, the priest convicted in the armored-car heist. Maloney was arrested after police found several million dollars of the stolen money in a New York City apartment leased in his name. The loot supposedly was destined for Northern Ireland to finance IRA arms purchases.
Maloney went to jail on conspiracy charges, but Larimer dismissed two other counts, ruling the charges should have been filed in New York City.
“A lot of people saw that as a technicality, but it’s really not,” Feldman says. “It’s a very important distinction.”
If he were forced to choose between civil and criminal cases, Larimer says, he would choose to preside over criminal matters, which offer more drama.
“The stakes are higher and the standards are more rigorous,” he notes. “There’s no such thing as a simple drug case. There are more appeals. Civil cases are about money.”
On the civil side, he prefers more complex cases. Larimer’s favorites are patent cases. He enjoys them for their technical detail, a facet many see as mind-numbing, but which he sees as presenting an interesting challenge and an opportunity to learn.
In civil matters, Larimer notes, he is more inclined to try for an out-of-court settlement than to bring cases to trial. A favorite tactic he employs is to call parties in separately and probe them on a confidential basis for their actual bottom line–information he uses to edge the two sides into a deal. Often, the bottom line is not money.
“Some people just want to be heard; they want their day in court,” he explains. “Sometimes you just have to listen to what they have to say.”
The judiciary, if not a seat on the federal bench, was long an aspiration for Larimer. He admits to making most of his career choices with the consideration of how they might parlay into a judicial job at least at the back of his mind.
At the same time, he was not counting on donning a robe. Winning a federal judicial appointment, he says, is a little like winning the lottery. A certain amount of positioning is possible, but there are not that many appointments to go around. Being in the right place at the right time is crucial, as is being on the radar screen of those with good political connections in the same party as the sitting president.
In his case, Larimer says, landing on the federal bench was partly a matter of luck.
Hanna concurs. Despite Larimer’s clear suitability for the district court job, he says, the circumstances that put him there “were pure serendipity.”
A Rochester native, Larimer attended local Catholic schools. After graduating from McQuaid Jesuit High School, he enrolled in St. Andrew’s Seminary as a candidate for the priesthood. Midway through his second year, Larimer contracted a particularly debilitating kidney ailment that sidelined him for six months.
When he resumed his studies, Larimer switched to St. John Fisher College.
“I guess I just decided it wasn’t for me,” he says of the decision to give up the seminary. “I had just met my wife at the time. Maybe that had something to do with it.”
At St. John Fisher, Larimer majored in political science and headed the Young Democrats club. He also took a constitutional law course from Stefan Michinski, a World War II Polish partisan whom he says inspired him to take up law as a career.
After graduating from St. John Fisher, he earned a law degree from the University of Notre Dame.
Out of law school, Larimer clerked for a federal judge in Washington, D.C., a job he landed by “naively” spreading his resume, with no other introduction, among 150 judges. Judge Joseph McGarraghy, who took him on, “must have felt sorry for me,” Larimer says.
From the clerk’s job, Larimer went into the Justice Department as an assistant U.S. attorney, working as a prosecutor for five years in Washington before transferring to Rochester for a two-year stint. After the U.S. attorney’s office, he spent two years as a trial attorney at a small Rochester firm and then moved to a job as chief counsel at the Appellate Division Fourth Department of state Supreme Court.
In 1981, Larimer decided to run for Monroe County district attorney. By this time, he was a registered Republican. During his Justice Department stint, he had switched his party enrollment from Democrat to independent. Then, in the late 1970s, he registered with the GOP so he could vote in a Republican primary for Gerald Houlihan, a friend who was trying for the party’s nomination for D.A.
In his own bid for the office, Larimer was making a leap. He had to quit his Fourth Department job and incurred debts in the race that he says he still is paying off.
Some observers–Hanna among them–think the race’s turning point came in a Conservative Party primary that Larimer narrowly lost to Democrat Donald Chesworth. Chesworth won the general election by a small but incontestable margin, and two years later was named State Police superintendent by Gov. Mario Cuomo. Larimer went into private practice as a partner with Greisberger, Zicari, McConville, Cooman & Morin (now Cooman, McConville, Consadine & Morin P.C.).
At the time, the defeat was bitter, Larimer says. But in retrospect, it was a blessing. A political unknown before the race, he became known and respected in local Republican circles, putting him in line for the part-time magistrate’s job, when it was created in 1983. Until the position became full-time a year later, Larimer split his time between private practice and the bench.
Magistrate is a position peculiar to the federal courts. Depending on what more senior judges in a particular jurisdiction want it to be, the job can be virtually on a par with a district court judgeship. Or it can be a very junior sort of detail.
Under the Federal Magistrate’s Act of 1968, individuals who hold the position are supposed to be limited to hearing pretrial motions, conducting hearings in civil cases and handling only misdemeanor criminal cases. With district court judges’ and litigating parties’ consent, however, they can conduct full civil trials.
Part of what Feldman sees as Larimer’s egoless approach is his determination as chief judge to use the Rochester magistrates to the fullest degree.
“(Larimer’s) feeling is that the more a magistrate can do, the easier it makes his job,” Feldman notes, a stance he contrasts to courts where judges are highly protective of their own turf.
Larimer himself says as much. Expansion of the magistrate’s role not only helps the court, but makes the job more interesting for the magistrates themselves, he says.
“Many courts do not use magistrates as much as we do,” Larimer says. “I’m trying to expand their authority in Rochester. I think we should raise the bar.”
Former Chief Judge Michael Telesca, the sole District Court judge at the time Larimer was named magistrate, treated him similarly, Larimer notes.
As to his own further ambitions, Larimer says if he were offered a federal circuit court position, he would probably take it. The purity of dealing with the law on a completely intellectual basis has a certain appeal.
But winning a seat on a higher court would be like winning the judgeship he now holds–a matter of luck and connections as well as ability.
If Larimer were to move up, it would be the Rochester court’s loss, Hanna says, adding, “I can’t think of a single individual better suited for their job than he is.”

4/16/99

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