How The Bench And Bar See Each Other: A Spousal Dialogue

Friday, June 1, 2007 - 01:00

A friend of the Zagels, J. William "Bill" Elwin, formerly Associate Dean, Northwestern University School of Law and Planning Director of its Corporate Counsel Institute; and Co-Founder with David S. Ruder of its Corporate Counsel Center, assisted the Editor in formulating questions and editing the interview.

Editor: Peggy, what is your principal concern about the judiciary?

Peggy: Corporations or partnerships are in 50 states and, as business becomes global, numerous countries. Even in the U.S., federal courts and regulators frequently differ based on geographic lines. What a business does in one place may be held improper in another place because of the nature of the judiciary and attitudes of prosecutors as well as the differing rules and regulations and the way they are applied. Looking at the bench as corporate counsel, I see within each of the jurisdictions in which my firm finds itself a mixed bag of capabilities, personalities and philosophical outlooks. The challenge a corporate counsel faces when she considers this is how can corporate counsel possibly cope with all these differences and uncertainties and still provide adequate and appropriate advice to our clients.

Editor: Jim, what about the role of general counsel?

Jim: My view of lawyers is that they vary as widely in their abilities as judges do. There are two concerns I have with outside lawyers for corporations. One is that in many cases they are not the real decision makers. Therefore, when I am trying to help the parties settle a case, particularly a case of some importance, I try to get the general counsel to participate.

The other concern is outside counsel are frequently not as in touch with the practical realities as general counsel. Many follow a pattern irrespective of the nature of the case based on an assumption that things need to follow in lock step in a certain way. They believe that a case always develops in one way and one way only. They talk to me about the law and seldom talk to me about the facts. They rarely talk about the leverage on either side in terms of settling a case. The thing that the in-house lawyer offers is that she can explain to you why it does or does not make business sense for a case to be disposed of in a certain way. I seldom get that from outside counsel. I usually get an argument to the effect that the client will say no. It is important, particularly when dealing with a business, for the judge to know why it is saying no.

Editor: Do you find that you are comfortable with the courts in terms of their willingness to master complex facts?

Peggy: I am not comfortable that courts have the time or are willing to listen or devote the time to learn the complex issues. My group works with our trial counsel to simplify the technical issues which the judge needs to understand to fully grasp a case. Yet, I still do not have confidence in a judge's or jury's willingness to listen even after all that work has been done.

We recognize that judges and juries read the press. Even before a case is tried, we have to wrestle with how to communicate simple themes and explain the complex issues to the press when a major event occurs. You have to monitor all media, including the Internet, to ferret out issues affecting your company or your competitors and companies generally so that you have the maximum amount of time to plan your response. It is essential to get the earliest possible warning of an event that may trigger litigation against your company. You need to understand the issues quickly and deal with the media so that when your story comes out, it is told properly.

Editor: Jim, does the bar present cases in a way that judges can understand?

Jim: I concur with Peggy's remarks about the need to simplify technical issues. The model that lawyers should look at is what the patent lawyers do. Patent lawyers start with the assumption that no one knows anything except them. That is not true in other areas of litigation. People sometimes come before me with information that is very complex and stuff I have not seen before. They assume that I know. The patent lawyers do not. They are very good about devising ways to explain complex themes in a way that you will understand them. They use lots of examples, more than any other group of lawyers. They use the same approach when they communicate with the jury because the jury decides infringement. Lawyers who are not informed about the expertise of the judge should assume that the judge is completely ignorant - and most lawyers do not do that.

Lawyers have a tendency to use shorthand particularly if they are specialists. I have been on the bench for about 20 years so I understand most of that shorthand. Ten years ago people would come in and start talking to me using shorthand. I had some lost cargo suits which the lawyers called Carmack Amendment cases, their way of saying it was a simple case but they said it before I knew Carmack is a quasi absolute liability law for shipped goods.

Lawyers like to use shorthand when talking with associates and colleagues because they all know the field. They have to stop doing it when they come to court. If you are before a judge who understands the shorthand, the judge has ways of telling you that she already knows that. Although, if I were a lawyer appearing before a judge that I thought understands the jargon, I would still try to sneak some things in to make absolutely sure. I believe that many lawyers never ask anyone about the assigned judge's familiarity with the law governing the case.

Peggy: Jim and I were once at dinner with one of the leading lawyers in Chicago. My attitude has long been that the judge is the most important part of the case. I said that I can always find a number of lawyers who can do an adequate job before a good judge. When I mentioned this, the lawyer almost fell out of the chair and argued that he made the difference in the cases.

It is important to get to know the judge. You should know what motivates the judge and what his background is before going into any case. I like to see what kind of cases they have had. I ask a lot of questions of people who have appeared before the judge to find out as much as I can about her demeanor and ways of handling things. That gives me an enormous leg up to meet that judge's expectations when I and the lawyers appear before the judge. I owe it to my client to do that.

Editor: Peggy, most corporate counsel are very supportive of mediation. Do judges use it effectively?

Peggy: I am passionate about mediation. I find that most judges find it very helpful in business and commercial cases. Mediation helps you get a better understanding of the position of the other side.

Here again a lot depends on the judge. Mediation can be misused. Recently, it was misused in an important case for us. It was used at the wrong time with the wrong mediator. It was court-ordered without any consideration of where the parties were and whether it could accomplish anything. It hindered forward movement and might actually have encouraged a trial which is what both sides were trying to avoid. If judges use mediation properly, it can further a case by bringing about a settlement that will resolve differences in a way that can preserve an important relationship.

Jim: I do not push mediation on people. Also, you cannot as a general rule make any valid statement about ADR as a whole because it depends on the skill of the arbitrator or mediator. There are plenty of people who are not good at it.

The bar is very interested in ADR. Everyone has commented on the steep decline in civil trials in our courts and state courts. Overall we are down about 25 percent. To some extent this is attributable to the rising popularity of ADR. In part, it also results from the fact that lawyers in smaller firms may have case loads that are so oppressive that they cannot afford the time for trial.

Sometimes it is in the interest of the clients to try a case, but not in the interest of the lawyer. A lawyer with a big client may not want to place her reputation and possibly her relationship with the client on the line in a public trial. The best thing about ADR from the lawyer's standpoint is that if things do not turn out well, you can always blame a rogue arbitrator where it is harder to blame a judge.

Peggy: The view that there are cases too big to try is of concern. That view has persisted for many years. The press has gotten interested in it recently. Over the last couple of years, I have talked with lawyers and jurists who have expressed concern about this. When judges frankly admit that that they cannot try a case, it reveals a troublesome breakdown in our judicial system.

Editor: Jim, concern has been expressed about a breakdown in decorum with lawyers becoming more disrespectful of both the judge and other lawyers. Do you see that in your courtroom?

Jim: Surface respect for the court among lawyers is still high. Lawyers have a strong motivation not to be disrespectful of judges in public because it diminishes the value of their own work. If you talk about civility, most lawyers are still very civil to judges. They have every incentive to do that because there is the possibility that you will come before a judge who is upset that you attacked another judge.

The problem we see is the lack of civility of lawyers to each other outside of court and sometimes in court. Lawyers do not perceive that as being disrespectful of the court, but we do. There was a period ending five years ago where it was perceived as a real problem. Now, we do not see as much yelling and screaming in court, but I do see some really violent language in briefs mocking the other side. This is much more true of lawyers from other parts of the country who appear before me than it is for lawyers who regularly appear in my court.

Editor: Peggy, is the judicial process too slow? Do rocket dockets solve the problem?

Peggy: I like to have the judge take a careful look at each case - and not feel rushed. I am not a fan of rocket dockets. Each case has its own timing. By forcing things, you are not really helping. On the other hand, when you see a judge sit on a case and two years later you do not have a decision on the trial that is a problem. I am in favor of the things that Congress has done to get judges to control their dockets in federal courts. That keeps things moving along, but the rocket dockets defeat the purpose because some of these cases are too complex to move that quickly - and the parties are forced into unnecessary settlements.