Will, Hubert Louis

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Will, Hubert Louis

Hubert Louis Will was appointed U.S. district judge for the Northern District of Illinois on October 27, 1961, by President john f. kennedy. Like Kennedy, Will has been called an idealist and a pragmatist. His challenge to other federal judges is famous: produce the highest quality justice in the shortest time and at the lowest cost, consistent with that quality. To meet his own challenge, Will developed innovative case-management techniques over the years—and he willingly shared them, through judicial seminars, with many of the nation's leading jurists.

Will was among the first to use pretrial scheduling conferences, pretrial orders, and standardized pretrial order forms to organize and supervise the course of a trial from the outset. His aversion to lengthy and costly trials caused him to be, at times, an outspoken critic of the U.S. trial lawyers. He was a longtime crusader for higher professional standards and better practice skills within the trial bar. Lawyers seldom took issue with Will's position on the issue. He was a respected trial lawyer for almost 20 years before coming to the federal bench.

Will was born April 23, 1914, in Milwaukee. As a law student at the University of Chicago he was among a select group of students chosen to meet with attorney clarence darrow for informal Sunday afternoon discussions on legal topics. One of Darrow's favorites was Voir Dire, which is the preliminary examination of prospective jurors or witnesses to inquire into their competence. As a judge, Will enjoyed the dynamics of the jury selection process.

In 1937 Will earned a doctor of jurisprudence degree from the University of Chicago. That same year, he accepted a position with the general counsel's staff of the U.S. Securities and Exchange Commission. In 1939, he went to work as special secretary to U.S. senator robert f. wagner, of New York. During his tenure as special secretary, Will also served as clerk of the Senate Committee on Banking and Currency. In 1940 Will joined the Tax Division of the Justice Department as a special assistant to the U.S. attorney general. It was in the Tax Division that Will got his first real courtroom experience. There, he briefed and argued cases in the U.S. Court of Claims and various district courts. He also tried cases in all the circuit courts of appeals and the U.S. Supreme Court.

Later, Will served as general counsel for the Office of Price Administration and as tax counsel to the U.S. alien property custodian. By 1943, he was active in the military as a member of the Office of Strategic Services. He later served as acting chief of the Counter Espionage Branch in the European theater of operations. Before World War II ended, he earned a promotion to captain and a citation for bravery. Thereafter he remained active in veterans' affairs.

"Judges for centuries have thought that they were just supposed to be skilled referees who would step into the ring when the lawyer combatants said they were ready to fight."
—Hubert Louis Will

At the close of the war, Will and his wife and four children returned to Chicago, where he joined the law firm of Pope and Ballard. A year later, he became a partner in the firm of Nelson, Boodell, and Will. From 1946 to 1961, Will made his name as a tough—and winning—trial attorney. As a consequence of his work and reputation, Will was well known in Chicago circles of the Democratic Party. His name was soon added to a short list of possible appointees to the federal bench. In October 1961, President Kennedy named Will U.S. district judge for the Northern District of Illinois. In 1965 Will called on his tax litigation background when he presided over the trial and acquittal of former Illinois governor William G. Stratton on charges of Tax Evasion (Stratton v. Commissioner of Internal Revenue, 54 T.C. 255 [T.C. 1970]).

As a new judge, Will faced a staggering number of cases, and he was often frustrated when valuable courtroom time was devoted to issues he would not have bothered to handle as an attorney. Recognizing the need to better manage the volume and disposition of his cases, Will turned to colleagues for advice and assistance. Seasoned federal judges had practical suggestions for the newest among them, but no forum for sharing that expertise. To address this problem, Will was asked to join senior judges on a planning committee charged with developing training seminars for new district judges. His contribution and insight proved valuable. By 1963, Will was part of a permanent faculty responsible for training new judges. He remained on the faculty for the next 25 years.

Throughout the 1960s, Will experimented with methods to improve court procedures. The first standard forms for prisoners' Habeas Corpus petitions and Civil Rights complaints were drafted in his chambers. Will acknowledged that the forms were a simple solution but saw them as essential to sorting valid prisoner pleas from those that were "recreation for people with time on their hands."

In the area of civil litigation, Will was a vocal advocate of bifurcated trials, or trials in which certain issues are considered separately, for example, guilt and punishment, liability and damages. He was among the first to use pretrial scheduling conferences, pretrial orders, and standardized pretrial order forms to control the course of a trial from the outset. An amendment to rule 16 of the Federal Rules of Civil Procedure covering pretrial scheduling conferences is often called the Will rule. He was also known for the 20 questions rule, which limits the number of interrogatories without court approval, and the straight face test, cautioning attorneys against taking a "position on any issue in any case that he or she cannot take with a straight face."

Throughout the 1960s, Will traveled to other districts to demonstrate case management techniques. His most famous bit of grandstanding took place when he set out to prove that the use of individual calendaring systems could improve judicial efficiency and clear courtroom backlogs. While carrying a full caseload in the Northern District of Illinois, Will served for just three days a month on the district court in Philadelphia, where he disposed of more than 100 cases in under ten months.

In addition to experimenting with general courtroom efficiency, Will gave special attention to the administration of Bankruptcy cases in the federal system. He joined the Judicial Conference Committee on Bankruptcy Administration in 1963. In the decade that followed, he developed criteria for adding bankruptcy judgeships, proposed limits on bankruptcy administration costs, and revised bankruptcy rules in his own jurisdiction. In recognition of his expertise, Will was appointed to the Commission on the Bankruptcy Law of the United States in 1971 by Chief Justice warren e. burger. Many of the commission's recommendations became the law of the land.

Starting in the mid-1970s, Will served the Courts of Appeals for the Second, Fifth, Seventh, District of Columbia, and Federal Circuits. He also took temporary assignments in the district courts of Milwaukee and Madison, Wisconsin; South Bend, Indiana; Phoenix, Arizona; and Springfield, Illinois. Will assumed senior status with the District Court for the Northern District of Illinois in 1979. He died from cancer on December 9, 1995, in Oconomowoc, Wisconsin.

Further readings

Cole, Jeffrey N., and Robert E. Shapiro. 1993."Interview with Judge Herbert L. Will." Litigation 20.

Goulden, Joseph C. 1974. The Benchwarmers. New York: Weybright and Talley.

History of the Federal Judiciary. Available online at <www.fjc.gov> (accessed October 21, 2003).

Schmidhauser, John R. 1979. Judges and Justices: The Federal Appellate Judiciary. Boston: Little, Brown.

Cross-references

Bankruptcy; Burger, Warren Earl; Wagner, Robert Ferdinand.