Crossing the Bar (or Passing the Bar in the Other Direction)

My involuntary transition is probably not atypical. I was elected to two terms on the North Carolina State Supreme Court but was ousted running for a third. By election day, I knew losing was a distinct possibility, so I was sad and hurt to see the final results, but not despondent. Service on the state’s high court was more than I (or my professors) ever thought possible when I was in law school. I’d loved the work, but now it was time to move on.

Here are my thoughts from the far side of that great divide. Though my experience was as an appellate judge, I trust these thoughts will apply reasonably well to trial judges, administrative law judges, and others who are expecting to enter or reenter private practice after leaving the bench.

Losses

Many of the benefits one takes for granted as a judge disappear. Some of these are things we all joke about: Suddenly you’re not the great raconteur that you were in the past, compliments about your writing expertise dry up, and your assigned parking space goes away. I hate to admit it, but all these sting. No matter how often you tell yourself or your spouse reminds you that you’re not all that special, human nature is such that eventually most judges can’t help starting to absorb the hype. It can be humbling when it vanishes.

Other losses are more concrete. You are now out of The Club. For years, you have enjoyed the company of your fellow members of the bench as you swapped stories about each other and gossiped about the lawyers who came before you. That’s over. Even if you and your former colleagues remain the best of friends, you are now in different worlds. You will only be an imposition if you try to pretend that you are all still peers.

You no longer control your calendar. If you practiced before taking the bench, and especially if you litigated, you know what this means. As a judge, you could take a day or week off as necessary, often with nothing more needed than arranging a substitute. Now that you’re back being a lawyer, you will have to plan meticulously and well in advance to guarantee that a vacation or other break won’t conflict with a court date. And all the planning in the world cannot prepare for the panicked client who needs help right now and from no one else but you. Lawyers know firsthand the old adage that if you want to hear God laugh, make plans.

Your priorities change. As an appellate judge, I cherished the ability to spend as long as it took to get an opinion right. I sometimes worked with clerks and reference materials for hours to best express both for lawyers and for the public the legal points that controlled a case. That luxury is probably gone. No matter how important your motion or brief is, it’s unlikely that your client is going to be happy paying your hourly rate as you wrestle with the question whether “replicate” or “duplicate” is le mot juste that captures your thought.

One of the saddest and hardest realizations may be that you are not worth as much to law firms as you anticipated. Your name may have been in the news routinely and the bar may rightly consider you Oliver Wendell Holmes’s natural successor, but law firms want to know what you can do for them. I have spoken to enough other retired judges to have learned that a former judge may not be an immediate profit center for a firm. You may have to work to build up your own client base.

Here’s a practical tip: Be mindful of your jurisdiction’s retirement system. After I lost the election, I received a feeler from the governor’s office about applying for appointment to an open seat on the trial bench. At first I exulted, thinking I was being thrown a lifeline. A little reflection, though, led to the realization that the governor would surely prefer to appoint a young up-and-comer over a used justice, and that the call from the mansion was most likely a courtesy. But even if it had not been, taking a trial court seat would have had a substantial and unwelcome impact on my retirement benefits, which in my state are based on one’s last salary while in state service. Each state is different, so know the quirks of your own.

There are other losses, but this is getting pretty dreary. Let’s think about the positive aspects of leaving the bench.

Gains

As above, I am assuming here that you are transitioning from the bench to practice. I am also assuming that you were a hardworking and conscientious judge who was not a jerk to those who appeared before you. If you were a jerk, you’ll find out all about it shortly after you leave the bench.

Some of the gains are modest, though welcome. Lawyers usually will still call you “judge.” Depending on your state, you can stop worrying about the next election and how events utterly beyond your control will affect your future. Misspelling “trial” as “trail” will seem less important.

But other gains resulting from reaching out beyond your day-to-day work on the bench can be substantial and deeply satisfying. Judges can use their time both to participate in legal organizations and to improve the practice. This community and bar work is valuable in its own right and has many rewards, but it also shows others your willingness and capacity to be a productive member of the legal community. In other words, your good works undertaken for “the good of the cause” can redound to your credit in ways that you never expected.

Let me again fall back on my own experience. Shortly after I joined the supreme court, both the justice immediately senior to me (Mark Martin, later North Carolina’s chief justice and now dean of Regent University School of Law) and a state court of appeals judge (Jim Wynn, an ABA stalwart now on the U.S. Fourth Circuit) suggested that I become more active in the American Bar Association, of which I had been until then an inert member. I joined the Appellate Judges Conference of the Judicial Division and started putting my hand up. Over the years, I went to the ABA’s Midyear and Annual Meetings, worked with state and federal colleagues from across the country, and ultimately wound up as conference chair.

Similarly, I began attending the Appellate Judges Education Institute’s (AJEI’s) yearly summit; became involved in course planning, speaker recruitment, and panel presentations; and then found myself serving as program chair for the 2015 summit. Working on ABA and AJEI projects meant that I became friends with judges and practitioners throughout the country.

On a more local level, not long after becoming a justice, lawyers in the state began grumbling to me that the supreme court was not taking on enough cases. They had a point—the number of cases we were accepting for discretionary review was low. But I knew the reason from my newly won insider’s perspective. Lawyers petition the court to grant its discretionary jurisdiction. Although the rules and statutes explicitly set out the requirements for such a petition, many of the ones we were receiving boiled down to a primal scream that “my client got a rotten deal and you need to fix it.” Even if such a case appeared to have merit, the court was hamstrung if the attorney could not argue the issues cogently or even articulate what they were.

So, I began work with the state bar to revitalize a moribund program of certification in appellate practice. In 17 years, only seven lawyers had gone through the certification process, and two of us had since gone on the bench. The revitalization took years, but it worked. The North Carolina bar now boasts a growing cadre of skilled appellate specialists whose efforts benefit not only their clients but also the reviewing courts by presenting carefully defined issues supported by sound legal analysis.

In the same vein, I took note of the lawyers who were adept appellate practitioners, who knew how to follow the appellate rules, file a well-reasoned brief, and make a compelling oral argument. Not coincidentally, many of these same lawyers were active in the state bar, the ABA, and other similar organizations. Those were the lawyers I contacted when seeking practitioners to participate in bench-bar projects.

Shortly after I left the bench and was wondering “Now what?,” a firm that had an outstanding appellate practice group contacted me. I already knew many of the firm’s lawyers from their work before the court and in the various bar committees and programs in which we had participated. The years working with these attorneys made us comfortable with the notion of practicing together as colleagues. I question whether that call would have come if I’d been just another face on the bench.

In addition, since returning to private practice, I have been put to work as an attorney by groups that first came to know me as a judge, such as the Council of Appellate Lawyers of the American Bar Association, the Appellate Judges Education Institute, and the state bar.

These opportunities were hardly unique. Your own work on the bench to improve our profession has probably had a greater reach than you realize. All bar associations—national, state, and local—enjoy having judges as members. If you were active in these associations during your judicial tenure, they will continue not only to welcome you but also to put you to use. As a former judge, you have insights that others lack but want to know. You’ve seen what constitutes a convincing brief or persuasive argument. You know how judges think. Your participation in CLEs for other practitioners will be sought if the ground has been prepared. Your leadership skills can find new homes.

Will all this make you rich? Hard to say. No doubt you will have noted that the work I describe above is all volunteer and “non–revenue producing,” but it has also resulted in paying clients while also assisting the firm with marketing.

People ask me if I miss my old job. The most honest answer I’ve come up with is that I miss the good parts. While practice has elements of drudgery—billable hours, anyone?—it can echo some of those “good parts.” Appellate briefs may not enjoy the lifespan of an appellate opinion, but each calls upon the same writing skills. The judicial talents you honed on the bench can serve your clients. Arbitration and mediation might be right up your alley. A local law school may recruit you as an adjunct. Just as you may have worked with clerks as a judge, you can bring along a new generation of young associates and partners. The best antidote for the melancholia of leaving the bench is being busy with work you find rewarding.

So, yeah, it’s tough to carry your robe home for the last time and stuff it in the back of your closet. A chapter has ended. Life hasn’t. The next step can be just fine.