March 19, 2015

MEMBER SPOTLIGHT: An Interview with Chief Justice Leo E. Strine, Jr.

On February 28, 2014, Leo E. Strine, Jr. became the eighth Chief Justice of the Delaware Supreme Court. This high honor marks a long life of public service. "Public service has always been what I wanted to do with my life," says Chief Justice Strine. Before the appointment, he served on the Delaware Court of Chancery as Chancellor since June 2011, and as Vice Chancellor since November 1998.

Chief Justice Strine also teaches at Harvard, University of Pennsylvania, and Vanderbilt Schools of Law. Since 2006, he has served as the special judicial consultant to the ABA Business Law Section's Corporate Laws Committee. Before joining the judiciary, Chief Justice Strine was Counsel to Governor Thomas R. Carper of the State of Delaware. In that capacity, he was responsible for providing legal counsel and overall policy coordination. He graduated magna cum laude from the University of Pennsylvania Law School in 1988 and was selected as a member of the Order of the Coif.

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You've served on the judiciary in some capacity since 1998. What do you most enjoy about being a judge?

The thing that gives the most satisfaction is when you can help people solve a human problem, without generating more harm than is necessary. When I was on Chancery, I tried to talk to parties early in litigation, get them to understand the perspective of the party on the other side. Sometimes by doing that, you can help people come to what I call a Rolling Stone-settlement where you don't necessarily get what you want, but you get what you need. In Chancery, a lot of the case load is family issues; guardianships, will contests, and neighborhood disputes. Victory after trial means celebrating a victory over your brother or your former business partner, which is hollow and soul-destroying. In some ways, then, the most satisfying part of the job is what the public never sees, because you've been able to help people figure out a lower-cost solution both in terms of economics, but even more importantly, in terms of emotions and dignity.

You're now Chief Justice. Was this always the ambition of your life?

No. Public service has always been what I wanted to do with my life. I was fortunate to go on Chancery at a very young age and was very happy there. But when Chief Justice Steele left, it presented a situation, where, I thought, I've done this for 16 years, it's sometimes good to do something different to help the public.

When you were confirmed, you said you intended to listen to the current members of the Supreme Court and find out why things are the way they are. Have you done that? If so, what have you discovered?

I have. It's an ongoing process. I discovered some things are just the way they are because they've always been that way. And sometimes that make sense and sometimes it doesn't. For instance, I was pushing the buttons on the clock on the bench, and I asked why this was my job. No one was sure. It turned out that Chief Justice Herrmann – this goes back something like 30 years – liked to work the clock, so it was put on the bench. So I said, “Would you mind if we had the clerk do it?”

Here's another tradition: judges not talking before argument. The idea is for everybody to come to their own independent perspective, then talk after argument. One thing we are discussing now is whether there might be certain types of cases where it makes sense to do things differently, so long as all justices agree. The bottom line, though, is that most traditions make good sense and our court is in excellent shape, and can work to adapt to the future in a measured way after full discussion.

What best prepared you for becoming a judge?

Serving as counsel to the governor, particularly when it comes to business law. I learned a lot by helping somebody run a complex organization. Even though Delaware is a small state, it has a strong unitary executive who runs a lot of functions. You're talking about a multi-billion dollar budget, over 10,000 employees. Helping a governor govern a state like that gives you a real insight into the time demands and the pressures on people who run complex organizations. I'm very aware that one of the key business judgments that businesses have to make is how much time to spend on any particular decision. We also had to deal with a lot of high profile litigations. I got a real appreciation of not just the nominal cost of litigation in terms of what it costs you to hire counsel or do other things. But even more, the organizational distraction that litigation can be. There is a real value needed to putting things in the rearview mirror.

Another thing that helped prepare me was having a broad liberal arts education. I believe strongly that you have to understand the traditions upon which our nation's system of government is based. Understanding that a loch is not just a place where there's allegedly a monster in Scotland, but there's a guy named John Locke. And that there are people like Montesquieu. Understanding those things, structures of power, how they work, I think is invaluable to being a judge. And those are things that go beyond just law school. You can pick up a lot in law school, but they really relate to whether you take philosophy, history, political science, the humanities. I'm very worried about society's idea that we can just turn everything into a trade school. The law is the accumulation of learning about how to resolve particular human disputes that tend to recur.

If you look at your whole menu of responsibilities now, what would make your job easier?

If everybody took all of the adverbs out of their briefs.

Don't they teach that in law school?

Not enough. I'm still yearning after all of these years to know why “flatly inconsistent” is more powerful than “inconsistent.” Is this a topographical insult? The serious point about this is you do spend a lot of time having to get around adverbial intensification to figure out what the noun and verb of a case is.

What's been the most surprising and/or interesting part of your job?

In the Chancery system, which is unique in this country, you can have oral arguments that last most of the day. If you have a preliminary injunction, it's very intense. Each side can get two or three hours. That means there's a single person questioning and you can follow the line of questioning. As Chief Justice, the comparative brevity of oral arguments is still something that's an adjustment. Usually the entire argument takes no more than an hour. It's not something that surprised me, because I've sat in on Supreme Court arguments before, but it's the biggest difference for me.

Your robe garnered a lot of attention. It's black with two gold bars on each sleeve and has blue and gold neck trim on the back.

There is actually nothing new about this. When I came on the Court of Chancery bench in '98, I was told that I needed to get measured because we have English robes. When Chief Justice Steele went to the Supreme Court, the Supreme Court got English robes, too. What marked the Chief Justice from the Chancery were bars on the arm. The former Chief Justice had a distinguishing girdle that set his robe apart. He pulled it off with panache. I didn't think I could, so I went the nearly two-decade old Chancery tradition.

You see a lot of lawyers in the courtroom. What is the commonality among the most successful lawyers who appear before you?

They address the hardest problem that their client has to confront right on. They appreciate difficult questions and view them as an opportunity to win a case for their client. They, as I said before, focus on noun and verb. They know the record. They tend to be the ones who don't bring stupid cases before the court. If their client has weaknesses, they help their client solve problems outside the court system, or early once they are in it. The courts are pretty smart. You've got adversaries on the other side. It's unlikely the court is going to miss your weak points.

What advice would you give to a lawyer who would like to become a judge?

Get involved in your community. In most states, having some demonstrated commitment to community and public service tends to help. Be regarded as one of the people who practices at the highest level. Every time you get before a court, you have a chance to show your stuff. Because judges are often consulted about these things; leaders of the bar are often consulted. So, take every opportunity you have to show that you have ethical fiber, professional talent, and judgment.

We should eradicate this idea of zealous advocacy. In very few areas do we applaud zealotry. What clients need is well-balanced, sane, sober advocacy. What sort of judgment do you bring to a case? A sense of proportion? If you have a winning hand, do you overplay it? Was your winning hand $75,000, but you spent $150,000 trying the case?

Do you have a reputation of being reasonable in discovery disputes? If somebody needs a reasonable delay, will you give it to them? Do you write well and ground your argument in facts and law? Do you deal with people temperately? Because once we get that person in a robe, they have a lot of power. In our state, you get appointed for 12 years.

What are the most pressing corporation law issues today?

One of the real problems that we have is striking the right benefit and cost ratio in representative litigation. You have boards of directors now that are comprised overwhelmingly of independent directors. They will make a disclosure that they're actively shopping the company. There's no conflict in the transaction. There's a big premium to market. The market loves the deal. The directors are selling the company for a premium. The CEO is not going to even stay in place. But lawsuits are filed all over the place. And they're filed within 24 hours by institutional investors that are fiduciaries themselves, often having very small amounts of stock. This is a troubling phenomenon because those cases then get resolved in two months with some sort of settlement, with a disclosure of more information about why the deal is fair. The defense lawyers don't really know what to do, because they get sued in three different states. It's cheaper to settle than to try to get the case dismissed. The stakeholders get the same deal and lawyers get paid. It's time and again. That's not a good thing.

I'm not in any way against representative litigation. I've put in place some of the strongest remedies in corporate law history, and my colleagues on Chancery have done so too. But there should be a genuine, good faith reason for a premium-generating lawsuit. One of the most dismaying developments is pension funds filing lawsuits against transactions where there's no apparent conflict of interest. How could the pension fund board have even met to consider whether to file the suit within 24 or 48 hours?

There has to be more thought given around fiduciary responsibility. Part of where the forum shopping issue has become real is when a company gets sued in three different locations; the very cost and uncertainty create settlement value – not because of the suits having any merit – just because the directors have been sued in three different places. And plaintiffs will go away for some disclosures and attorney's fees for themselves.

You teach at several universities. Do you have a favorite class to teach?

I teach mergers and acquisition. I also teach corporate law theory. I have taught valuation. I'm not sure what I like to teach the most. I teach things that come up all of the time in my work. The students regularly ask novel questions about iconic cases that lead me to see them from different perspectives. So, I have to reread all of the iconic cases of corporate law every year for class.

The other thing is that teaching keeps me current in what's going on in the professional world and the thinking in academia about corporate law and about other issues of law. It brings me into regular contact with practitioners. It's a personally very fulfilling relationship I have with these institutions – particularly Penn and Harvard. The corporate law faculties of both of those institutions are extremely strong.

Since 2006, you've served as the Special Judicial Consultant to the ABA Business Law Section's Corporate Laws Committee. What's been the value of your involvement with the Committee?

It's like a corporate law nerd gathering. There are times when you think, how can they be talking about this provision of the Model Act for an hour? But the upside, and this is a huge upside, is these people care passionately about what they do. They are trying to make corporation law have as much integrity and as much utility as possible. You've got people from all around the country, all different markets, and they spend a tremendous amount of time thinking and talking about these issues.

I find it personally enriching. Again, it's a chance for me to hear what the real-world problems are that people are facing. How they're dealing with them. They're not working their clients' angles. They're really giving their all to think about the best direction for the law. It's a really wonderful group of people who care deeply about what they do. 

Thank you so much for your time.