From Bench to Bar: Transitioning Judges’ Contributions to the Practice of Law

Both of my former judges left the appellate bench at different times and for different reasons. But in watching them transition off the bench, it was undeniable they had caught their second wind. They were ready to help clients and equipped with a unique arsenal of skills to do so. In fact, the law firms I have worked for regularly retain former judges to advise us on pending cases or to serve as neutrals in alternative dispute resolution (ADR) because we know the value of their experience and perspective. That experience shouldn't be lost on judges or practitioners. While many see judicial retirement as a time to slow down, it's the perfect opportunity to use transitioning judges' experience on the bench to help clients.

Potential Routes off the Bench

As a starting point, many state court judges leave the bench when they reach what is known as a mandatory retirement age. In most states, that age is 70, even though, in 2018, the average life expectancies for men and women were 76.2 and 81.2, respectively, and continue to increase every year. Some states have recently raised the age limit for certain judges above 70, and others are considering raising it to 80 or eliminating it entirely. But the reality is that most states still require judges to retire well before they are ready to do so.

New York is one of the states with a mandatory retirement age. It's a constitutional limit, meaning the state would have to amend its state constitution to adjust the age upward. The limit was adopted in 1869, when life expectancy was far less than it is today; and at least one former court of appeals judge has called New York's mandatory retirement age an "archaic" rule. Three of the four court of appeals judges who were forced into retirement during my time at the court--as well as many others who reached the mandatory retirement age before them--promptly resumed practice. Former Chief Judge Judith Kaye, the longest-serving chief judge in the history of the New York Court of Appeals and one of the most respected New York lawyers and jurists, joined Skadden Arps in New York five days after turning in the key to her chambers. She said she had intentionally left "no space between the close of chambers and the opening of the next chapter." Shortly after her arrival at Skadden, Kaye led several high-profile investigations, including one for the State University of New York at Binghamton involving college basketball and one for then Attorney General Andrew Cuomo involving claims against then-Governor David Paterson. She did all of this while serving on numerous boards and commissions and other public engagements.

Chief Judge Kaye, like her colleagues on the New York Court of Appeals and other state courts who were forced into retirement due to a mandatory retirement age, hardly could be said to have "retired." They charted new career paths after they left the bench because they continued to be passionate about the law and the communities they served, and they felt that they still had more to do and give.

Of course, some judges choose to leave the bench of their own accord. State and federal judges who choose to voluntarily leave the bench do so for a variety of reasons and to pursue a variety of new career paths. The first judge I clerked for after law school chose to leave the bench after serving as an associate judge on the New York Court of Appeals for 12 years of a 14-year term. One of the justices of the Appellate Division in Manhattan voluntarily resigned from the bench after only six years of a 14-year term. Perhaps even more so than their colleagues who were forced into retirement because of their age, these judges developed a robust practice of serving clients after they left the bench.

Whatever the Reason for Their Departure, Transitioning Judges Improve the Practice of Law

Because many judges are forced into retirement before they are ready, or simply choose to leave the bench to pursue a career in private practice, I believe judges who are transitioning off the bench provide valuable tools for litigators and parties and are well positioned to help their colleagues and clients. I've experienced that firsthand as a law clerk to two transitioning judges and as a practitioner at law firms that regularly retain transitioning judges as consultants and neutrals.

Transitioning Judges as Consultants. As a practitioner, I have worked on several dispositive motions and appeals in which my law firm retained transitioning judges to serve as consultants and advisers on our case. Sometimes we retained transitioning judges to moot us for an oral argument, playing the role of one or more of their former colleagues who may be on our panel. Sometimes our client retained the judge to provide insight and guidance on our strategy and arguments. We often asked the judges questions like: How would you rule on this case if it were before you? How do you anticipate your former colleague(s) will rule? How do you think he or she will respond to a particular argument? Should we frame an argument differently to capture the vote of Judge [name]? If our appeal was before an intermediate appellate court, we might ask the former judge what he or she thought of the panel we had drawn: How did they expect this particular panel would rule in our case, based on the judge's past experience with them? What kinds of questions should we expect from each of the judges on our panel?

Practitioners like to think they know the answers to these questions. And they may have some good insights from their own experience as law clerks or as lawyers. (I certainly thought I did.) Many law firms also pay hefty sums to legal research services that offer "analytics" on how certain judges have ruled in particular types of cases or on certain issues. But those analytics and even the practitioner's experience will pale in comparison to insights from a transitioning judge. The practitioner knows only what was said at argument or written in a final, published opinion--which may not be much at all. The practitioner will almost never find out how the sausage was made. They'll never know what was said behind closed doors, how judges originally voted on the case, what issues or sticking points most concerned the judges, and what eventually convinced them to rule the way they did. The transitioning judge knows all of this. And while they won't be able to share what was actually said or done in any past cases, they can certainly use those insights to predict how their former colleagues will rule on future arguments or in future cases. Transitioning judges know how their colleagues think; they know how judges think. Retaining them to share those insights can make all the difference in a case.

Transitioning Judges as Neutrals. Aside from sharing their insights, transitioning judges also make powerful neutrals. There are at least two sides to every case--plaintiff and defendant, petitioner and respondent, appellant and appellee, granting or denying a request, admitting or excluding evidence. A judge's task is to evaluate those positions and decide which one (if any) should prevail. They're trained and experienced in identifying the strengths and weaknesses of every position in a case, even when the parties don't present them well or at all. Judges are also put in the highly unenviable position of having to decide which of those positions should prevail. They're used to making hard decisions, regardless of their personal predilections or views. And they can bring all these skills to bear in mediating or arbitrating one of your disputes.

I witnessed this firsthand with both of my former judges. As court-appointed and party-selected neutrals, they helped resolve cases that had been languishing for years, often because they could persuade parties of weaknesses in their case that the parties themselves were unwilling to see. One of my judges had previously spent 25 years as a trial lawyer before joining the bench. He did it all--pleadings, motions, discovery, trials, and appeals. When he was forced to retire from the New York Court of Appeals, he had no intention of returning to a law firm or becoming a "litigator" again; he has since told me that he just wanted to "get back to the lawyers." He did so by becoming the first court of appeals judge in 45 years to return to the trial bench after retirement, serving as a third-party neutral. He heard parties make their last effort to resolve a case that was otherwise poised to go to trial. For him, "leaving the Court of Appeals was not retirement; it was a homecoming." He ended up handling 800-900 cases and settling nearly 60 percent of them during his post-judicial role as a third-party neutral.

I'd like to think my judge made a particularly good neutral because he had been both a trial lawyer and a judge. But all transitioning judges bring a perspective to ADR that the parties would be wise to accept. They bring a candid appraisal of a case, something that many parties are either oblivious to or untrained to see. They will fairly and thoughtfully assess the parties' causes of action, their claims and damages, and in some cases they may even be poised to assess their chances before the trial judge that the parties would otherwise face if ADR falls through. Transitioning judges also bring an aura of respect that many lawyers simply don't have. I believe clients are genuinely more willing to listen to the recommendations of a former judge than other lawyers who serve as neutrals in a case. Even in ADR, there's something about having a "judge" hear your case that's more powerful and persuasive than an attorney who offers the same perspective. Clients trust that former judges are fair, and they respect the process they employ to arrive at a decision. That kind of trust is what allows a transitioning judge like mine to resolve disputes more efficiently than a neutral who hasn't stepped down from service on the bench.

Conclusion

Having witnessed firsthand my judges' transitions off the bench, I know what kind of benefit they can offer to practitioners and clients. Their transitions looked nothing like what I typically thought of as "retirement." Instead, these judges, like many who have left the bench, entered new chapters of their career that invigorated them and allowed them to use the skills and respect they had earned as distinguished appellate judges to help clients and litigators in practice. Savvy practitioners would be smart to use those skills to their advantage, whether it means retaining transitioning judges to serve as consultants or advisers on a case or selecting them as neutrals in ADR. Transitioning judges bring tremendous insights and experience to a case that many attorneys lack. Utilizing them in a case will not only increase your client's chances of success, but it will also improve the practice of law.