Judge Thomas Ambro has served on the United States Court of Appeals for the Third Circuit for over 15 years. Prior to that, he was in private practice for 24 years at the law firm of Richards, Layton & Finger, focusing on bankruptcy and business law. Here, he talks about what best prepared him for becoming a judge, what would make his life easier, and the way judges, or at least Judge Ambro, think about a case.
* * *
You've been a judge for over 15 years. What do you most enjoy about being a judge?
When you are in a job, you ask yourself essentially two questions. Do I like what I do and do I like with whom I do it? If the answer to both is yes, you're in pretty good shape. If the answer to one of them is no, you've got a problem. If the answer to both is no, you need to find something else. In my case, I like what I do. I wake up in the middle of the night and still can't wait to go to work. The cases are very interesting, and I like my colleagues. It's a good gig.
What best prepared you for becoming a judge?
A lot of people think of an appellate judge as being the same as a district court judge. For a district court judge, it's important to be acquainted with litigation, litigation skills, and possess some of the traits needed for a good litigator. I think on the appellate level it's different. What is needed, or what helped me the most, was that in the ABA Section of the Business Law, I was very active on the Committee on Legal Opinions. It involves giving opinions in transactions to people other than your clients on whether a deal works or doesn't work from a legal perspective. That general overview of the law was and remains invaluable to me as a judge at the appellate level.
When I was in private practice, there was an opinion that I was asked to give on a bankruptcy concept called substantive consolidation, a concept whereby you ignore the separate boundaries of the entities and you consolidate the assets of those entities for purposes of the plan of reorganization. There was no district court or Third Circuit case law. In the process I said I'd love to work as a judge on that issue. I later got that chance, though I discovered to my chagrin that, as I dug deeper, I didn't know as much in 2005 as I thought I knew in 1991.
How long were you involved with the Committee on Legal Opinions?
The Committee wasn't started until about 1990. I served from the beginning and I'm still on it.
For a few years I actually headed it up. Prior to the Committee being established, I worked on transactional legal opinions almost from the time I started private practice in 1976. At the end of 2000, beginning of 2001, the opinions became less transactional and more bankruptcy-related, as my practice became very significantly tilted to bankruptcy matters, bankruptcy reorganizations, and bankruptcy litigation.
What would make your job easier?
Better briefing. More development of themes by attorneys rather than filing what some people would call "shotgun briefs," that is, making every argument they can think of as if it's a law school exam without homing in on the more important arguments they need to make. One of my colleagues has said the more pages you have, the more you want me to skim; the fewer pages you have, the more you want me to focus on your key issues. Justice Ginsberg has said that frustration and irritability set in well before page 50.
A key thing is being willing to concede that there is a weakness to your argument. It doesn't mean that you concede that you lose. It's just that, in most cases that come before us, there are strengths and weaknesses. But so many times people refuse to acknowledge that they have a weakness to their case, and that is not helpful.
This is a good segue to my next question. You see a lot of lawyers in your courtroom. What is common among the most successful lawyers who appear before you?
It is a good segue because the best lawyers can establish credibility quickly by being willing to concede a weak point, turning it around to show how it nonetheless does not cause them to lose their case, and giving a plausible reason why. The former football coach Lou Holtz said, as I recall a presentation I heard over two decades ago, that when you meet someone you intuitively ask yourself three questions: Can I trust you? Do you care about me? And will you do the right thing? If the answer to all three is yes, then you're willing to take the next step. To some extent it's the same with counsel at argument. Can I trust them to be honest and to lay the case out in a way that isn't so totally self-serving? Do they care about not just me, but the process? And when push comes to shove, are they willing to do the right thing? If the answer to all three questions is “yes,” then the person has credibility and you want to say "OK. Let's discuss this further."
What advice would you give to a lawyer who wanted to become a judge?
It depends on the court. If you want to become a trial judge, whether on the federal or state level, I would suggest that there are two ways to do it. Become a litigator and have other people observe the good work that you do. And the second is get involved politically. One or the other, or both, is a great way to become noticed.
To become an appellate judge, the easy path is first to be a district court judge and do a good job. But also, be involved beforehand politically so that those who nominate at the federal level know you. The quality of work that you do, whether it be writing or the perception that people have of you with regard to academic matters, can play a significant role.
You've presided over many cases involving business law and bankruptcy. What are the most pressing business law issues today?
What does a class action plaintiff have to do to prove at the class certification stage that there should be a class certified and how much proof is required? There's a fair amount of discussion with respect to that. You'll probably see the Federal Rules Committee making suggestions in the fairly near term as to what to do in that area. Data security is also an interesting area.
In a recent article by FindLaw.com, you were called a "voice for liberalism." What do you think of this label?
I always say to people that usually about half of the people think you've done a great job and the other half think you're one of the most ignorant persons on the face of the Earth. So to those who would think a particular opinion fits on one end of the political spectrum called liberalism, I'm sure they would find other opinions that I have authored (or been on panels with the authoring judge) to be on the other end.
I don't think in those terms. At a 2001 judges' symposium, someone laid out the four camps of primary motivations or reasons that caused Justices on the then-extant Supreme Court to look at a case one way or another. The first camp is text. What is the text of a statute? Don't go making it up. You look at the text of a statute or a regulation and you don't look necessarily at the legislative history, because oftentimes, the history may be written by a staffer for a boss, not necessarily a whole committee. And if there is a floor amendment and something is added two weeks later by way of legislative history, how significant is that in terms of really understanding what's happening? So look just to the words.
The second way is structural. Look at the balance of federal–state relations. How are they set up? The current perception is that there has been a tipping, at least until recently, of the balance toward federal rather than states. I would also suggest that another way to look at structure is to look at the structure of the enactment, such as the Internal Revenue Code. Assume you have the same words three different times. If they're understood in the first instance to mean X, and they're understood in the second instance to mean X, then, if those words are used in the third instance, why do they not also mean X?
The third way is look at the consequences of what you're doing. How will it play out practically? How will this affect the next case? Are you going too far in terms of what you're saying today only to have it come back and haunt you in another case tomorrow?
The final one, to the extent it fits, is something that we've all understood as kids. Is it fair? Is what is being done fair? Chief Justice Earl Warren noted to his clerk in writing Brown v. Board of Education, "Just tell them it's simple justice." That is fairness.
Those things all play out in particular cases, depending on the facts. That's why the facts are so critically important in each case.
You practiced law for 24 years, from 1976 to 2000 at Richards, Layton & Finger prior to becoming a judge. What did you most enjoy about private practice?
We once had a firm retreat and someone who spoke said that there are two types of organizations: farmer firms and hunter firms. Farmer firms have highly centralized management. From the top, people tell you, "Go do this, go do that." Hunter firms are those that allow you to go out and hunt, and, if you do well, they give you more resources to go out on the next hunt. Richards, Layton was, in my view, a hunter firm, and it fit my personality quite well.
Is there a highlight from those years in private practice? A case that still resonates with you?
Probably the Continental Airlines case, which was the first major bankruptcy case that I worked on. We represented something like 59 aircraft financiers. The attorneys from New York were having difficulty determining who would make the arguments on appeal from the bankruptcy court of a particular decision to the district court and ultimately to the Third Circuit. I was asked and took on the assignment of arguing in both places. Prior to that, I'd done a couple oral arguments before the Delaware Supreme Court. I also had argued before the U.S. Court of Appeals for the D.C. Circuit twice when I was about 25. It was fun getting back into that. I love the give and take of oral argument on appeal. I also liked the people I was working with.
You teach public speaking at your alma mater, Georgetown University. What do you enjoy about teaching?
I wasn't sure that I would like it. I have resisted teaching any course at a law school. A very close friend of mine, Art Murphy, who is a trial attorney in Pittsburgh and went to Georgetown, asked me if I would consider teaching with him a course for undergraduates limited to 16 juniors and seniors on something called Courtroom Communication.
The first third of the course we would focus just on public speaking. The second third would focus on becoming an advocate before people who do not interrupt you, like jurors. And the last third would be becoming an advocate before people who constantly interrupt you, like me and other appellate judges.
This will be its fifth year and I've grown to love it. I give Art the credit for the conception of the course. He and I have got things to where we're pretty happy that we can do something that helps educate and connect. Our students' midterm is an actual argument before jurors.
We also take them to see a U.S. Supreme Court oral argument. Their final is an oral argument before a panel of either professors or judges at the Supreme Court Institute at the Georgetown University Law Center.
For 20 years, you chaired the Committee on the Uniform Commercial Code for the Commercial Law Section of the Delaware State Bar Association. What's a highlight from this experience?
Besides working or puzzling through a detailed regulatory statute, it was the people. In particular, two professors. One was John Wladis of Widener University Law School. And also Russell Hakes of the same law school. I found working with them to be very interesting. They also became friends, and it was fun to work on projects with them. I also enjoyed the other members of the Committee.
I read in a given term you hire four law clerks. What are the qualities of a great law clerk?
Someone who is intelligent, has judgment, works hard, is efficient, writes well, produces an exceptional work product, and creatively crosses concepts from one discipline to another. A lot of people don't do that. (If you're in a particular tax area, how do you correlate that with something from the corporate area or vice versa, or other areas that may have an interplay?) Someone who is trustworthy, is a pleasure to be with, and someone who is a leader in chambers. If you have all of those, then you've got a great law clerk. If you want to make it simpler: talented persons who are nice, care about what they do, care about others, and are willing to work as a team.
You clerked for former Delaware Supreme Court Chief Justice Daniel Herrmann prior to entering private practice. What in your opinion are the benefits of clerking for a judge and what did you take from this experience?
It was an invaluable experience. You see how decisions are made in ways that are not necessarily available for discernment in an opinion. You see how collaboration works among judges or justices on the appellate level. I clerked for Chief Justice Herrmann, and Justice William Duffy actually hired me because he hired for both himself and for the Chief Justice. You see how colleagues treat each other. These two and also the other Justice at the time had a way of dealing with each other that was, looking back, pure class. It was a great example of how colleagues should interact.
You also chaired the ABA's Business Law Section and edited The Business Lawyer. What's been the value of your involvement with this section and with the ABA?
I'd say incalculable. It's where I first met some great attorneys and the ABA staff, especially at the Section of Business Law. Many have become, and remain, great friends. Just exceptional people where I learned cutting-edge issues in various areas of practice. The Section of Business Law, and to a large extent the ABA Sections themselves, deal primarily with the practical craft of lawyering, and that was very, very helpful to me. It was, and remains, a significantly beneficial experience for the practice of law and even the practice of judging, because there are ABA groups that deal with judges.
What are your hobbies? What do you do to relax?
I do a lot of reading. Unfortunately, not enough reading. I try to read at least 20 books a year. It's a great way to learn. It's a great way to see what good writing is about. I've got so many books lined up that I want to read. Right now I'm reading Destiny of the Republic, by Candice Millard about President John Garfield and how medicine wasn't developed enough when he was shot in 1881 to prevent an infection that ultimately killed him. How could that be interesting? Well, this author does an incredible job. I'm also rereading Teacher: The One Who Made the Difference, by Mark Edmundson. It's one of the best books I've ever read about the art of teaching students.
What else do I do to relax? I could say I play golf. Actually, I play at it. Jim McLean, a great golf teacher, has said that there's players and practicers. I probably am more in the practicer area because I don't often take the four or five hours out to play a whole round of golf. But I do enjoy it.
Thank you so much!