Helping Clients To Resolve Disputes Quickly And Efficiently

Saturday, October 1, 2005 - 01:00

The Editor interviews The Honorable John W. Bissell, Chief Judge United States District Court, District of New Jersey (retired). Chief Judge Bissell will join Connell Foley LLP on December 1. Appointed by President Ronald Regan to the District Court in 1982, Chief Judge Bissell retired on September 1 after serving 27 years on both state and federal courts in New Jersey.

Editor: You were quoted in the Newark Star Ledger as saying that you couldn't think of a better job than serving as a U.S. District Judge.

Bissell: There was not a day when I served on the federal bench that I did not absolutely enjoy. I was very fortunate to serve with fellow jurists of the highest caliber. But I am also very enthusiastic about starting a new chapter in my career. I look forward to building on my courtroom experiences to head Connell Foley's alternative dispute resolution department and be a part of the firm's litigation practice group.

Editor: What attracted you to Connell Foley?

Bissell: I was drawn to Connell Foley because of its reputation for excellence, integrity, substantial size and strong roots in New Jersey. Connell Foley made it evident to me that it was interested in having me join them. I knew I would be wanted and welcomed.

It also happens that many of my good friends at the bar are lawyers at Connell Foley. It was comforting to me as I looked at law firm opportunities to see that my friends at Connell Foley had remained there over the long term. That suggested to me, quite simply, that the firm is a great place to work. Partners at Connell Foley tended to arrive at the firm as young lawyers and remain at the firm for their entire career. This history gives Connell Foley a sense of tradition, but I also sense a great deal of dynamism as young partners have come forward to lead the firm to continued success in the future.

Of course, Connell Foley was interested in my goal of developing a practice in arbitration, mediation, special masterships, fact finding missions and cutting edge ADR. In addition, Connell Foley's litigation practice is in the areas where I had exposure in my work on the bench.

I also look forward to assisting in the mentoring of newer attorneys and in the review of their writing abilities. I can provide the benefit of a judge's perspective on what is expected.

Editor: Your experience on the bench exposed you to a wide range of cases. What are one or two areas in which you plan to specialize in private practice?

Bissell: I adjudicated a vast number of employment cases, litigating issues related to true labor law as well as state and federal anti-discrimination laws. The firm does that work. Connell Foley also handles intellectual property litigation. While certainly not a patent law expert, I have been exposed to many intellectual property issues and would feel very comfortable assisting and working with the firm's associates and partners on such matters.

Editor: As the former chief judge overseeing one of our country's busiest dockets, what do you see as the single most important thing a litigator can do to help ensure a timely hearing of his or her client's case?

Bissell: Actually, there are several. First, litigators should take seriously the innovations in the Federal Rules of Civil Procedure related to voluntary disclosures and cooperation with adversary counsel. The positions of the opposing parties may be antagonistic, but the relationships between the attorneys in the case should at all times remain cordial and civil. If they do, agreements concerning discovery and other aspects of trial preparation can be reached that will facilitate and accelerate the pace at which a case can be made ready for trial.

Second, litigators should embrace the participation of the magistrate judge assigned to the case for pretrial preparation. The magistrate's notices should be honored and appointments kept. The magistrate's status and early settlement conferences can help frame a timetable for various pretrial motions.

Third, the parties should not be reluctant to file pretrial motions, including motions to dismiss for lack of venue or jurisdiction or failure to state a claim. Even if you do not win on these motions, pretrial motions can help you to inform the judge more fully about your case.

Fourth, lawyers should be well versed about the strengths and weaknesses of their position and that of their adversary.

Fifth, after pretrial motions are concluded and you have an appreciation for the dimensions of this case, turn to the task of the preparation of the final pretrial order that will govern the trial including a detailed definition of the issues to be tried.

Only about four percent of the civil actions in the New Jersey federal court go to trial. This means that most of them are disposed by motions or by settlement. It is important for the litigator to remain open to the prospect of settling a case and to make sure that the client realizes that settlement is not an acknowledgement of defeat or a sign of weakness.

Finally, I encourage litigators to use the court's annexed mediation and arbitration programs. In some cases their use is mandatory. The programs enable the parties to have a member of the bar assess and analyze the case involved, which often results in early settlement.

Editor: Why encourage early settlement?

Bissell: A settled case provides the best resolution of a dispute in terms of certainty and minimization of litigation expense. By the very nature of settlement, it is a matter of compromise. Neither side gets everything it was looking for. Nonetheless, settlement does give the parties the ability to reach a certain result by agreement rather than to proceed in the face of an uncertain disposition that could take months or years to reach at considerable expense.

Similarly, the parties have to be concerned about the fact that the trial may not be the end of it. If the losing party perceives significant errors in the course of the trial, the prevailing party is likely to face an appeal with all of its costs and uncertainty. If you start ringing up all those costs, you can appeal to the business sense of the parties to say that you have made your points and now its time to resolve the dispute. Whether it is done by formal mediation or informal settlement discussions, points have to be made about the advantages of a settled resolution.

Editor: What factors go into a decision whether to recommend litigation or ADR for resolving a dispute?

Bissell: It is a matter of common sense. If a client comes to you with a candid and complete presentation of a conflict that has erupted or is threatened and may lead to litigation, at that time you can get an early appraisal of the situation as to whether this is a matter that is really going to have to be resolved in the courts or if it is something that can be tracked into either private settlement discussions or an arbitration or mediation program.

You also have to be in a position to analyze any governing documents. A large number of agreements in the commercial sphere have arbitration clauses in them that require the parties to go to arbitration.

If there is no contractual obligation to arbitrate a dispute, you have to keep in mind the saving of expenses and the likelihood of a favorable result by moving into the ADR world at an appropriate time. Determining the appropriate time for ADR will vary from case to case.

In the New Jersey federal court's annexed mediation program, if the Court decides that the case should go into the program, the litigation is stayed for 90 days so that the mediation becomes the focus and its chance of success enhanced.

Editor: You have a well earned reputation for integrity, intelligence, fairness and a deep respect for the law. How can the federal bench continue to attract jurists of your caliber?

Bissell: Setting aside your compliments to me personally, the single most significant deterrent to service on the federal bench is the alarmingly low salaries available for federal judges at all levels. Members of Congress are reluctant to raise their own salaries, fearing that to do so will prevent their reelection. Therefore, they don't raise judicial salaries either. That has generated an unacceptable impasse in connection with the ability of the federal judiciary to obtain significant raises that would keep pace with the growing costs and the growing remuneration that members of the private bar can enjoy.

If a federal judge has a law clerk coming out of law school working for two years who then moves into a major law firm, that clerk will go in with a total compensation package that often exceeds that of the judge for whom he or she worked.

The United States has not had a significant raise for the federal judiciary since the early 1990s. There is often not an annual cost of living adjustment. In recent years those adjustments were there, but Congress has refused to address the very important issue of appropriate and fair salaries for the judiciary and for themselves. Until that Congressional paralysis is overcome, you are not going to see meaningful increases and appropriate salary levels either for the judiciary or for members of Congress.

Unless there is adequate compensation and the development of a program or system that will allow for automatic salary increases at periodic intervals for the highest levels of government without the Congressional blockage that has occurred, you are not going to attract the most suitable candidates to the bench. If judges are not adequately compensated, our country will not have the benefit of having the highest caliber talent willing to serve (or to remain) on the federal bench.

Please call the interviewee at (973) 535-0500 with questions about this interview.