Evers' judges: David D. Conway

Conway

​"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications.
​​Italics indicates a direct quote from the application.

​Name: David D. Conway
 
Appointed to: Dane County Circuit Court
 
Appointment date: Aug. 25, 2020 (elected April 2021)
 
Education:
  Law School – Marquette University
  Undergraduate – University of Notre Dame
  High School – Assumption High School, Wisconsin Rapids, Wisconsin
 
Recent legal employment:
  April 2019-present – Chief, Civil Division, U.S. Attorney’s Office, Western District of Wisconsin
 June 2015-present – Assistant, U.S. Attorney, U.S. Attorney’s Office, Western District of Wisconsin
  January 2010-June 2015 – Associate attorney, Venable LLP, Washington, D.C.
 
Bar and Administrative Memberships:
Wisconsin State Bar
Wisconsin Supreme Court
Maryland Court of Appeals
District of Columbia Court of Appeals
United States Supreme Court
United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the D.C. Circuit
United States District Court for the Western District of Wisconsin
United States District Court for the Eastern District of Wisconsin
United States District Court for the District of Maryland
United States District Court for the District of Columbia
 
General character of practice:
 
Assistant U.S. attorney and the Civil Division chief of the office for the Western District of Wisconsin, leading six assistant U.S. attorneys and a seven-person support team handling civil litigation involving the federal government in western Wisconsin.
 
Earlier at Venable LLP in Washington, D.C., assisted clients on a wide variety of consumer protection issues, focusing especially on false advertising and unfair competition under federal and state advertising laws. Also defended clients in lawsuits brought by consumers, competitors, and regulators in both federal and state courts and before the National Advertising Division of the Council of Better Business Bureaus.

Describe typical clients:
 
As an Assistant U.S. Attorney, my primary client is the United States in all matters. On a day-to-day basis, I work closely with federal agencies and employees sued in their official and individual capacities, as well as with agency counsel and agents who assist on my cases. Assistant U.S. Attorneys in the Civil Division are generalists. However, my particular expertise is in civil defensive litigation under the Federal Tort Claims Act, Title VII of the Civil Rights Act, and the United States Constitution.
 
Number of cases tried to verdict: Two
 
List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years:
 
Atkinson v. MacKinnon, et al., (W.D. Wis.): Between July 2015 and August 2016, I served as lead trial counsel for three Federal Bureau of Prisons correctional officers sued in their individual capacities by a pro se federal inmate before U.S. District Judge Barbara Crabb. The plaintiff alleged that the three defendants had violated his rights under the First Amendment, Fifth Amendment, and the Religious Freedom Restoration Act by demoting him and reducing his prison pay on account of his Muslim faith, and then retaliating against him with negative work evaluations after he filed a prison grievance. In bringing these claims, the plaintiff asserted that the defendants had made bigoted remarks and threats to him about his religion. During a two-day jury trial, I led a successful defense by contrasting the plaintiff’s shifting prior statements with the defendants’ consistent version of events. The picture that emerged showed that the defendants had disciplined the plaintiff because he had been caught stealing on the job, not because of his religious faith. The jury returned a favorable verdict in about one hour. This case was significant in that it pertained to a sensitive, ill-defined area of law (religious rights) that rarely reaches trial, and it involved three individual-capacity defendants whose careers, reputations, and personal finances depended on a robust defense.

Smith-Williams, et al. v. United States, (W.D. Wis.): Between November 2017 and November 2018, I served as lead counsel for the United States in a dental malpractice and negligent supervision class action brought under the Federal Tort Claims Act by six Tomah VA dental patients before U.S. District Judge William Conley.… Plaintiffs alleged suffering emotional distress upon learning from the Tomah VA that one of its dentists had failed to properly sterilize his dental drill bits, potentially subjecting them to low-level risks of infection. Although the plaintiffs had all conclusively tested negative for any disease, they sought $50,000 each for their emotional harm. And they proposed to do the same on behalf of a class of 592 of the dentist’s patients. Therefore, the outcome of this case depended heavily on the court’s class certification decision. If certified, the case would go from being a relatively routine six-person lawsuit to an unwieldy litigation with up to $30 million at stake. To complicate matters further, no precedent existed for FTCA class actions because, prior to this case, no federal court had ever allowed one to survive dismissal for lack of administrative exhaustion by each class member. After the parties submitted detailed briefing, the court denied the plaintiffs’ class certification motion.… By denying class certification, the court drastically narrowed the scope of the lawsuit, which set in motion an eventual non-class settlement prior to trial. This case was significant in that it involved a high-profile incident at the Tomah VA; it charted new waters on the issue of FTCA class actions; and it threatened to pose enormous monetary exposure to the United States taxpayer if mishandled at the class certification stage. 

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Kohler v. Brennan, (E.D. Wis.): Between September 2015 and March 2017, I served as lead counsel on behalf of the Postmaster General in a Title VII employment action brought by a former postal inspector before U.S. District Judge Lynn Adelman.… The plaintiff alleged that her supervisors at the U.S. Postal Inspection Service committed gender discrimination and retaliation by promoting a male candidate over her in Spring 2013, and then by denying her five training opportunities in Fall 2013, after she filed an EEOC grievance. The plaintiff cited troubling circumstantial evidence about her supervisors’ alleged history of promoting men and denying her training requests. To rebut these claims, I worked closely with my client agency to develop statistical evidence showing that the supervisor who denied the plaintiff’s promotion actually had a strong career history of promoting women when compared to his female application rate and USPIS’s national trends. Likewise, I developed statistical evidence showing that the plaintiff had received a generous amount of training in 2013, putting her in the top ten percent of her Division for that year. By methodically applying legal precedent and reasoning to these facts and others developed through discovery, I was able to recast what at first seemed like an unlikely case for summary judgement. After extensive briefing, the court issued a 44-page opinion granting summary judgment on all counts for the Postmaster General.… This case was significant because it presented a difficult set of facts in a complex area of law with a federal agency unaccustomed to employment litigation.

Experience in adversary proceedings before administrative bodies:
 
None with adversary proceedings before administrative agencies. I did participate in four adversary proceedings before the National Advertising Division of the Council of Better Business Bureaus while in private practice. The NAD is an industry self-regulatory body, supported by the Federal Trade Commission, that is charged with overseeing and adjudicating national advertising disputes between competitors.
 
Describe your non-litigation experience (e.g., arbitration, mediation).
 
Counseling advertising clients and federal agencies on legal compliance issues to reduce litigation risk, and participating in mediations to avoid or resolve disputes without litigation. By my estimate, I have participated in about six mediations, and I engage in client counseling on a monthly basis.
 
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None listed
 
Previous runs for public office: None listed
 
All judicial or non-partisan candidates endorsed in the last ten years: None listed
 
Professional or civic and charitable organizations:

  Dane County Bar Association, Law for the Public Committee, member, 2019-present
  James E. Doyle American Inns of Court, 2017-present
  American Bar Association, Antitrust Section of Federal Civil Enforcement Committee, assorted roles including vice chair from 2014-2015

Significant pro bono legal work or volunteer service:
 
While in private practice, I engaged primarily in three pro bono efforts:

1) Primary drafter of an amicus brief in the United States Supreme Court on behalf of former U.S. Senator Birch Bayh in support of the Bayh-Dole Act, a statute that forms the basis for the modern university technology transfer system.
2) Work on behalf of a bipartisan policy institute to prepare and file an amicus brief in a case involving an Alabama death row inmate seeking habeas relief stemming from deficiencies in Alabama's indigent defense system.
3) Successful representation of multiple clients before the Social Security Administration's Office of Disability Adjudication and Review.
 
Quotes:
 
Why I want to be a judge --
 
I am seeking the position of circuit court judge in order to broaden the impact of
my public service in the local community. As an Assistant U.S. Attorney, I recognize the difficulties many experience interacting with the federal government. Although civil litigation is my primary responsibility, I often have discretion to assist people directly with their administrative problems. This discretion may mean helping parties resolve agency delays, navigate subrogation obstacles, obtain expedited answers, or confront other dilemmas. Whatever the case, my assistance with these problems, often small, can make a meaningful difference for somebody whose civil entitlements are at stake. These moments of direct problem solving are where I have found the most personal and professional satisfaction as an attorney.

In seeking this appointment, I hope to do more of what I find most fulfilling in my current position while supporting the welfare of my Dane County community. Our circuit courts are problem-solvers for the people they serve. Trial judges work directly with parties to confront some of society’s most difficult and emotionally-fraught issues – death, divorce, adoption, delinquency, crime, and interpersonal disputes. By doing the job well, a trial judge can improve lives, strengthen neighborhoods, and increase the public’s confidence in the court system. These essential functions depend on the careful and tireless efforts of a dedicated circuit court bench.

The strength of Wisconsin’s judiciary is best measured by the quality of its trial
judges. Being a good trial judge is more than just an intellectual exercise—it requires compassion, personability, and pragmatism. I possess these skills and will use them to improve my community through thoughtful, conscientious judging. If selected for this position, I would seek to spend the rest of my career serving the people of Dane County as a circuit court judge.
 
Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin.
 
The most impactful Supreme Court decisions in the past twenty-five years have addressed the ability of Wisconsinites to effectively participate in the process of democratic self-governance. In this category are decisions affecting the rights of the electorate to be informed by a free and uninhibited press, see Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524 (1997); to exert electoral influence on par with corporations and special interests, see Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); and to vote without undue hindrance, see Crawford v. Marion County Election Board, 553 U.S. 181 (2008); Milwaukee Branch of NAACP v. Walker, 357 Wis. 2d 469 (2014). These rights preserve all of our other basic civil freedoms.

In this regard, Rucho v. Common Cause, 139 S. Ct. 2484 (2019), has perhaps had the most significant impact on the people of Wisconsin. There, the United States Supreme Court held that partisan gerrymandering claims present political questions beyond the reach of federal courts, effectively ending a similar Wisconsin lawsuit challenging electoral maps drawn by the state legislature in 2011. Like the maps at issue in Rucho, Wisconsin’s maps were drawn to favor one political party with extreme technological precision. Those maps diluted the votes of many Wisconsinites and enabled some legislators to hold power in excess of the popular will for nearly a decade. By creating such maps, the state impinged the fundamental rights of Wisconsin voters to engage in a fair electoral process for choosing representatives. This, in turn, has increased political polarization in Wisconsin, as politicians must focus more on appeasing party voters to avoid primaries than on appealing to all voters to win general elections.

In this era of dysfunctional politics, the Supreme Court’s leadership on the topic of partisan gerrymandering was sorely needed. The Court was well-equipped to take action: a workable legal standard for adjudicating partisan gerrymandering claims had emerged in the lower courts, as had sophisticated data-driven methods for assessing vote dilution. Nevertheless, Rucho leaves voters of both parties in severely gerrymandered states like Wisconsin without legal recourse. It is now up to the political branches to remedy constitutional redistricting violations – a troubling prospect given that “[t]he politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.” Rucho, 139 S. Ct. at 2524 (Kagan, J., dissenting)

Two or three judges whom I admire and why:
 
Two judges I particularly admire are my late father, Judge Dennis Conway, and
Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin.

My father served as a circuit court judge in Wood County for twenty-four years before retiring in 2001. Born and raised in Wisconsin Rapids, he returned to his hometown after military service and law school to become the third generation of my family to practice law in the area. When he took the bench in 1977, he quickly made juvenile justice the focal point of his judicial career. In his view, the greatest benefit a judge could offer the community was to help young offenders and victims lead productive lives. And as Wood County’s only juvenile judge for more than two decades, he served as a mentor, advocate, and disciplinarian to countless young people. My father also displayed a number of human qualities I admire in a good trial judge. He was an excellent listener who knew how to make people feel at ease. He was empathetic and patient with a pragmatic approach to problems. He was a compulsive reader with insatiable intellectual curiosity. Most importantly, he was passionate about his work and cared deeply about the community he served. His example has heavily influenced my views on public service and its positive impact.

It is now up to the political branches to remedy constitutional redistricting violations—a troubling prospect given that “[t]he politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering." – Dane County Circuit Judge David D. Conway

Judge Barbara Crabb has been a pillar of the Wisconsin legal community for nearly a half century. She is the first and only woman to serve on the U.S. District Court for the Western District of Wisconsin, initially as its sole magistrate judge before becoming a district judge in 1979. As the longest serving chief judge, Judge Crabb guided the court through a physical relocation, a judicial emergency, and an increasingly complex caseload. She has been ahead of her time on important legal issues like same-sex marriage. Her well-known work ethic continues to yield reliably quick decisions, yet her legal writing is always crisp and cogent. Judge Crabb also cares deeply about her court as an institution. She selflessly took senior status in 2010, to create a badly needed third judgeship. Since then she has continued to handle a significant portion of the court’s docket, working practically for free to ensure timely justice for the people of Western Wisconsin. Standing alone, these qualities are more than enough to earn my admiration. But, I developed a personal appreciation for Judge Crabb when she presided over my first trial. The case involved a bombastic pro se plaintiff-inmate, an emotionally-loaded set of facts, and an opaque area of First Amendment law. Judge Crabb managed the trial flawlessly: she treated the parties with equal dignity, she gently kept the plaintiff on track, and she avoided appealable pitfalls. These are the skills of a judge who any lawyer would want to practice before.

The proper role of a judge:
 
The proper role of a judge is to fairly and expeditiously decide cases, without regard to personal bias, based on the evidence and the law.
 
In performing this important function, the judge must exercise good discretion to tailor the administration of justice to the needs of each case. This occurs, for example, during criminal and juvenile proceedings, where the law permits the judge to choose from a range of possible outcomes based on a wide variety of factors. But discretion also plays an important role in many other litigation settings. To wisely exercise discretion, the judge must appreciate that each case involves diverse parties with distinctive problems and circumstances. In many instances, a person’s background and characteristics will inform the court’s thinking and lead to fairer decisions.

The judge also must keep in mind his or her obligations to the parties and the community when deciding cases. The parties deserve a decisive judge who works diligently to advance their case. Delays in the justice system increase costs and prolong stress. The parties also deserve a modest judge who views judicial decision-making as a collaborative process. Judges do not have all of the answers. Fair and sustainable solutions require the participation and acceptance of the parties. Above all, the parties deserve a judge who treats all litigants and counsel with patience, dignity, and respect, no matter their backgrounds or viewpoints.

Likewise, the community is entitled to a judge whose personal integrity mirrors that of the institution he or she represents. The judge’s courtroom must be an inclusive place where all community members, even those without lawyers, can effectively access the judicial process. The judge’s decisions must be thorough and lucid so that the public can understand them. At times, the judge must protect the safety and welfare of the community. But he or she must also have the courage to accept public criticism when the law and facts require an unpopular outcome. All of these temperamental qualities combined are the essential mannerisms of a good judge.