The Activist

During his 14 years on the U.S. District Court for the Eastern District of California, retired magistrate judge Kendall J. Newman loved to tackle settlement conferences.

"I just liked helping parties to get their cases resolved," Newman said. "So whenever I had any time on my calendar, my courtroom deputy was scheduling settlements. ... I probably did 1,500 settlement conferences while I was on the bench."

Newman retired from the Eastern District in February 2024, and he's since been handling cases as a Judicate West private neutral, regularly mediating civil rights, employment, personal injury and insurance disputes while occasionally serving as a special master.

"I'm not doing arbitration. I had a few assigned to me in the beginning, but that's not really where my interest lies," Newman added. "I really want to stay primarily in the lane of mediation. That's what I love doing."

A 1984 William & Mary Law School graduate, Newman started his legal career at Gibson, Dunn & Crutcher LLP, litigating business, securities and employment matters. In 1990, Newman joined the U.S. Attorney's Office in San Diego, where he focused primarily on civil defense work before moving to the U.S. Attorney's Office for the Eastern District of California in 1995.

"We moved up to Sacramento, and I spent 15 years in the U.S. Attorney's Office here - defensive with a stint with criminal," Newman recalled, "and then heading up the affirmative section, bringing suits on behalf of the government."

In his work these days, Newman said he appreciates having more time "to really immerse myself in these cases," and he noted that - unlike many of his settlement conferences on the bench - the parties he's working with now are choosing to mediate.

"So they're interested in settling," he said. "You can have court-ordered settlement conferences, and a party may sit there with their arms crossed saying, 'We have no interest in settling.'"

Newman added that roughly half of his mediations are conducted in person - although some participants may join via an online platform - and the retired magistrate judge attributed that trend to the nature of the disputes he's handling.

"If it's a wrongful death case - and certainly civil rights cases - a lot of those they want it to be in person," Newman explained. "You can have that greater rapport."

Sacramento plaintiffs' attorney Mark E. Merin has used Newman recently as a mediator on several civil rights cases involving wrongful death claims, and said is terrific at building rapport with clients.

"He really wants to understand their history, their experience, their relationship with - in our case - the deceased," Merin said. "He wants to really understand their interests, so they feel they have been heard and understood."

Merin said building that foundational rapport was critically important.

"So later, when he tells somebody bad news ... they trust him," Merin explained. "What Judge Newman does very effectively is he shows that he understands and agrees and sympathizes and has that compassion for the client. But he's also able to communicate what the defendant's positions are, and those are very important because he shows the clients what hurdles and obstacles they have ahead."

Sacramento defense attorney Nicole M. Cahill has used Newman recently to resolve several wrongful death and excessive force cases involving law enforcement officials, and she said he is excellent at reading the room.

"He's a very kind and empathetic person" Cahill said. "And I think he's just able to really connect with people on a very human level, and that helps tremendously."

Newman did mention, however, that he won't hesitate to be direct with parties when the timing is right.

"Lawyers have many times told me they appreciate me being the heavy - who doesn't have a dog in the fight, who can be very candid with each side, saying, 'You have this problem or you have that problem.' I'm what I would call an equal opportunity giver of a hard time.'"

Oakland plaintiffs' attorney Benjamin Nisenbaum used Newman recently to resolve a law enforcement civil rights dispute, and said he appreciated the mediator's candor.

"He'll be very blunt if he thinks you're full of shit," Nisenbaum said with a chuckle. "But he's very personable. He is very respectful to clients. But if it's clear to him that a client has unreasonable expectations, he'll be blunt enough that it can be helpful in resetting those expectations without turning the client off."

Sacramento defense attorney Carl L. Fessenden has used Newman to resolve several civil rights disputes, and he agreed that the mediator's kind but direct approach is especially effective.

"What I really appreciate about Judge Newman is that he actually will challenge the position of both parties," Fessenden said. "He does that, though, in a way that comes across as very sincere and actually very common sense."

Fessenden said Newman doesn't present those challenges with the idea that one side is right and the other is wrong.

"He likes to have a discussion - sometimes even a debate - about your case," Fessenden explained, "really to make sure the parties are thinking about the various nuances and issues that may be presented in the case, so everybody's making a good decision."

Newman mentioned that the plaintiffs' expectations heading into a mediation can often be an area where he finds himself sharing his experienced perspective tactfully.

"In almost every case, plaintiff makes a mistake of thinking, 'What am I entitled to?' or 'How much would I want to get?'" Newman said. "And that's never the question. It's what would a jury award?"

As an example, he referred to wrongful death cases he's mediated that involve the loss of a child.

"I tell them, 'I can't imagine what you're feeling. I have children. There's no dollar number I would put on their lives,'" Newman said. "'But unfortunately, a jury has to make that determination.' ... And I point out, for example, whether they settle or whether they take it all the way to trial, they're still going to be terribly missing their child. This case isn't going to bring the child back, and I tell them as sympathetically as I can that I'm aware of that fact."

Referring to how he approaches dispute resolution, Newman described himself as an activist mediator, adding that, "If it doesn't resolve that day, trust me - you're going to be hearing from me."

"But I also seek to put my ego aside during mediation and invite the parties - if they've got thoughts or suggestions on how we can get things resolved - to share them," he added. "I want this to be a joint process. ... The mediator's there to help you."

Here are some attorneys who have used Newman's services: Benjamin Nisenbaum, Burris, Nisenbaum, Curry & Lacy LLP; Mark E. Merin, Law Office of Mark E. Merin; Nicole M. Cahill, Longyear, Lavra & Cahill LLP; Carl L. Fessenden, Porter Scott APC; Gregory B. Thomas, Burke, Williams & Sorensen LLP.