August 14, 2014

MEMBER SPOTLIGHT: An Interview with Judge Jean FitzSimon

Judge Jean FitzSimon knows something about nearly every legal job – government attorney, in-house attorney, private practice, and of course, serving as a judge.

Judge FitzSimon began her legal career in the U.S. Department of Justice, supervising litigation under the Freedom of Information and Privacy Acts. She served as the U.S. Trustee for the Northern District of Illinois and developed legislation to create the permanent U.S. Trustee program. She spent 11 years in private practice in Phoenix, Arizona.

She was Executive Vice President and General Counsel for Whitehall Jewelers, Inc.; General Counsel for Bridge Associates, LLC; and Chief Compliance Officer and Vice President for Compliance, Business Risk, and Regulatory Affairs at Sears, Roebuck and Co.

Judge FitzSimon was appointed on June 28, 2006, to the U.S. Bankruptcy Court for the Eastern District of Pennsylvania. She's been very active in the Business Law Section of the ABA and founded the Corporate Compliance Committee. "I have been extraordinarily lucky in my career," she says.

You're a graduate of St. John's College, a school noted for its Great Books curriculum, based on a study of seminal works in Western civilization. Was this education a good preparation for becoming a lawyer and a judge?

Absolutely. By starting with nothing but original sources, you have to bring your own interpretation to the work and do your own work to figure out what it's all about. It's excellent background for a judge. It's a very small classroom setup, so everybody participates and everybody's acknowledged. You're dealing with people on a regular basis and have to set forth your point and argue it reasonably well. So it works really well for being a lawyer, too. 

You started your career at the U.S. Department of Justice supervising litigation under the Freedom of Information and Privacy Act. You also helped develop policy. Is there a highlight from that time?

It was a fascinating and wonderful job that I would have been happy to retire from. My job was to oversee the FBI and the Drug Enforcement Administration, making sure they were not withholding records of public interest, and that included reviewing the MLK and JFK assassinations and the Rosenberg files. In terms of the litigation, most of my litigation was in the federal district court in D.C., and the judges there, of course, are giants. It was a remarkable thing, as a young lawyer, to be able to argue cases in front of the likes of Joyce Hens Green. One of the beauties of working for the federal government is you get so much more responsibility at such an early point in your career than you would likely get in private practice. The kinds of cases that you get your first year at the Department of Justice, you don't see until you're a six-, to eight-, to ten-year lawyer. 

You also served as the Acting U.S. Trustee for the Northern District of Illinois. In that role, you functioned as the government's watchdog in bankruptcy cases. Can you talk a little bit about that experience?

It was an interesting time because the Supreme Court had just declared the bankruptcy courts unconstitutional. I spent a lot of time with our district court, trying to figure out how to respond to that. 

We also had the very first of the asbestos cases. Before the Johns-Manville case, there was UNR, which was filed in Chicago. It was the first case to litigate the issue of whether or not future claims could be encompassed by a bankruptcy. I got to argue that issue in the federal district court. I was sworn in during the middle of the Chicago and Northwestern Railroad case by then Chief Judge McGarr. 

Then you went on to private practice at a firm in Phoenix. You focused on bankruptcy and business reorganization. Was that the natural progression of your career?

When I finished the U.S. Trusteeship, I had been asked to go back to Washington to work on getting the bankruptcy courts made constitutional again. I worked on all that legislation, and then to create the permanent U.S. Trustee program. 

The world of bankruptcy is, like the law, an unlimiting practice, because you have to do a little of everything. Real estate, contracts, securities, you name it. You can't simply be a bankruptcy lawyer. 

In 1987 when I went to private practice, I was very lucky to be able to find a city like Phoenix, where the big cases hadn't quite happened yet. In fact, within a year or so of my arrival, several big cases hit, and so I was able to go from small cases and mid-sized cases immediately into very large ones. 

What did you dislike about private practice?

Keeping hours is just annoying. But clients are the best and worst thing about private practice. A great client is truly a treat. You'll beat your brains out to produce whatever it is they need to have produced. Fortunately, I was very lucky. I was busy enough that when I sensed a bad client coming in the door, I was able to turn them down. 

Let's move to the in-house law world. You've worked as general counsel for several different companies, including Whitehall Jewelers, Inc., and Bridge Associates, and as chief compliance officer at Sears. So talk about that in-house experience.

There is nothing like it in the practice of law, because of the closeness to your client. You're a business partner as well as a legal partner with your client. You educate them. They educate you. It's really a team effort, something that you don't get in private practice. I loved it. 

It was a big transition when I first went in-house, because my first role with Sears was to fix their half-billion-dollar bankruptcy problem. Sears, along with a number of the other retailers, had been taking reaffirmation agreements with bankruptcy debtors and not filing them with the courts, on a legal theory that, obviously, was wrong. Sears was the first one to get caught at it. They decided that they had to revamp their entire bankruptcy program. 

The bankruptcy program was fairly important to them, as it was with many of the retailers, at least with regard to hard goods, like washers and dryers and things like that. Given the fairly small profit margins on retail products, having the program to at least attempt to recoup some money in bankruptcy was important to them. 

Though management wanted me to do whatever it took to fix things, there was certainly a fair amount of resentment at staff level because they felt like everybody was blaming them for the problem. You have to deal with all different levels of clients. 

You were appointed June 2006 to the U.S. Bankruptcy Court for the Eastern District of Pennsylvania. It seems like every experience helped you prepare to become a judge.

Yes. It really is the combination of things. Obviously, I draw most heavily from my bankruptcy practice because I know how the system works. I know what games people tend to play in the system. I tend to understand the business aspects of the Chapter 11 cases better because I was a debtor's counsel. I understand the financing and things that you might not understand if you hadn't done that kind of thing. 

They all play into it, whether I'm dealing with listening to the testimony of the CFO of a company, trying to understand whether I really believe him or whether I'm going to listen to the committee’s accountant. My Department of Justice time taught me that I didn't need to be intimidated by anybody. 

What do you most enjoy about being a judge?

I love the contact with the parties. I love hearing good lawyers argue. Primarily my case load is consumer cases. That's true, I think, everywhere in the United States, because there's a lot more of them going bankrupt than there are businesses. 

They're all human beings who are terrified of being in court. Court's intimidating. What I want to do is make sure that when they leave the courtroom, while they may not like the decision I made, they feel that they were listened to, and that I was trying to achieve a fair decision, so that they walk away with some sense of the magnificence of the judicial branch. 

What makes a successful lawyer in your opinion?

Preparation is about 85 percent of it. The other 15 percent is critically important and a lot of lawyers miss it, which is just good professional behavior – courtesy to the other lawyers, courtesy to the witnesses, listening to the answers to questions before they jump in, not interrupting the other counsel, and not interrupting me. You'd be astonished at how many lawyers think it is actually good practice to try and talk over me when I'm trying to either issue an opinion or ask them a question. 

If a lawyer was thinking about becoming a judge, what advice would you give?

Don't do it if you don't like people a lot. And there are an astonishing number of lawyers who don't really like people very much. They're just not good judges, because that's what you spend your time doing. I fit my opinions in between the time that I'm spending with people listening to arguments. 

You have to try and make sure your career is relatively broad. It doesn't mean you can't be a real estate lawyer, but what you should try to do is make sure you understand real estate from the beginning to the end, from the creation of the real estate’s existence, in some cases, in terms of its legal existence, all the way through to when a real estate deal goes sour. 

You don't have to be a bankruptcy lawyer to be a bankruptcy judge, but what you want to be is someone who has seen the full range of a practice area, so you understand that there are lots of pieces that go on behind-the-scenes. 

A bankruptcy attorney says that in your court, you give a sense of comfort, and you don't embarrass lawyers.

I remember how hard it can be; and how hard it particularly can be in court. Sometimes you have unreasonable clients. And then you have just plain old bad days. The car doesn't start in the morning; the train is late. I try to cut lawyers as much slack as I can. 

I'm going to switch gears. You were recently given the Jean Allard Glass Cutter Award, which recognizes an exceptional female business lawyer who has made significant contributions to the legal profession and the ABA Business Law Section. What are you most proud of in terms of advocating for women in the profession?

I was absolutely stunned to get the award. I didn't even realize it was me until the announcer, Dixie, was three-quarters of the way through the description, when I suddenly thought, "My goodness, her career sounds a lot like mine." 

I have attempted to be relentless in trying to make sure that young women and minority lawyers are recruited, are welcome, and are given opportunities both in the profession and in our professional organizations. Then I just sort of step back. They always know they can call me any time, they can e-mail me any time, they can ask for any advice they want. 

What drew you, initially, to become active and a leader in the Business Law Section?

When I went into private practice, it was just a no-brainer for me. I was well aware that the Section had stellar speakers and opportunities for networking. Then the collegiality was such that I was just drawn in, and they were never going to get rid of me ever again. 

Why would you encourage particularly younger lawyers to get involved in this Section?

Everybody was so good to me and so helpful to me. I have to credit a lot of the men in the Business Law Section for giving me my opportunities. They were encouraging women to belong and appointing them to sub-committees, as chairs and vice-chairs. 

I was shocked, oh, probably about five years into my private practice, when I sat down to do a memo to my partners on where I was getting my business from and why, to discover that 90 percent of my business came from the ABA. It was just a revelation that there was an organization out there that clearly felt it important to reach out to women and get women involved. And that was very, very clear in the Business Section, more than any other Section of the ABA. 

When you're a young lawyer, you don't really want anybody to know how ignorant you are. Having other people that you can pick up the phone and call and say, "Gee, are you seeing anything like this?”           That's kind of wonderful. Also, you have to start building a practice. It's the networks that you start as a young lawyer that come to fruition when you get to be an older lawyer. 

If law's going to be part of your life, then hanging out with other lawyers is something you ought to do. 

I have been extraordinarily lucky in my career. People have been very good to me. I would not be where I am today without all the help and support of the people in my life and, most particularly, the folks in the Business Section, who have reached out to me and are always available and always willing to help to make opportunities for folks. 

We started the Compliance Law Committee because of my job at Sears. I suddenly moved from bankruptcy into compliance, and I knew nothing about compliance. I came to the head of the Business Law Section and said, "Hey, have we got a committee on this?" And he said, "No. Why don’t you chair it?" And that's what I did. We had 1,000 or 1,500 members within 60 days. 

That's the kind of thing that the ABA offers and that I have taken much advantage of. Therefore, I feel an obligation to give back as much as I can. I don't know anybody in this Section who doesn't have people in this Section to thank for many of things in their careers. 

What are your interests outside the law?

I have a wonderful husband, and a great family, so they're first and foremost. They put up with me when I was a 24/7 lawyer, astonishingly. And then I love traveling and I love reading. 

You've lived in so many different cities. Do you have a favorite?

Actually, I've lived in so many great cities it's mind-boggling. I would gladly live in all of them except New York. Phoenix, Chicago, Washington, Philadelphia, they're all wonderful cities. 

I really appreciate your time. Thank you so much.