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November 06, 2020 Feature

Retirement: A Year in Review

By Mark A. Drummond

You know, I really should write all of this down,” I remarked to my wife, Carol, as I stared into the box of vegetables while holding what I later learned was a jicama. Oh, I had been served jicama before. But I never had seen one in its natural, unshredded state. It was the largest vegetable I had ever held. It lasted three weeks.

The lockdown had begun in New York City. The weekend before, late at night, Carol came across the Misfits website, which was offering fruits and vegetables delivered to your door every week. The conversation went something like this:

Carol: “We ought to order the Misfits box.”

Me: “What’s the Misfits box?”

Carol: “You know, they have that perfectly good produce but sometimes they’re misshapen.” (Exhibit 1: The 10-pound jicama.)

Me: “What do you get in each box?”

Carol: “You don’t know.”

Me: “You don’t know! I want to know. I like to plan the meals. I don’t want to leave all of this up to chance, decided by a person I don’t know, who’s throwing random fruits and random vegetables into a box. I like to have some control over my vegetables!”

I will end this domestic dialogue with the following stage direction: (Raised voices. Mark jumps off bed, heads to dining room table, throws open laptop, and orders Misfits while mumbling words like “don’t know” and “funny-looking vegetables.” Carol slowly shakes head—reaches for pen. Records yet one more grievance to give to her lawyer when she finally decides to leave Mark.)

I retired from the bench just more than a year ago on August 5, 2019. I do not recall another year in my life that has been filled with so many ups and downs. I thank The Judges’ Journal for the opportunity to put all of this down on paper.

Travel was the first gift of retirement. A week after leaving the bench, we flew to London, trained to Bath, rented a car and drove to York, then trained to Oxford where I taught the Keble advocacy course for a week. Both of us then taught an advocacy course in Belfast, rented a car and drove from the top of Northern Ireland to the south of Ireland, then flew back home.

A couple of months before I retired, I got a call out of the blue from the legendary trial attorney Steve Susman of Susman Godfrey. He asked if we would move to New York so I could take a part-time position as the judicial director for the Civil Jury Project (CJP)at the New York University School of Law.1

Carol and I talked. Our three children were grown and scattered—one on the West Coast, one on the East Coast, and one overseas. New York was right in the middle. September found us in New York navigating the singular experience of looking for an apartment in Manhattan.

October brought advocacy training trips to Arizona, Colorado, and Texas. November took us to Myanmar with a side trip to Vietnam for two trainings through the Central and Eastern European Law Initiative (CEELI), the Burma Center, Prague, and the National Institute for Trial Advocacy (NITA). That trip involved 15 flights, innumerable taxis, and two long, bumpy bus rides.

December brought cleaning out a decade and a half of accumulated magazines that we tossed aside with all good intentions of “reading that article.” We were preparing for our move to New York in January when my 88-year-old mother unfortunately passed away New Year’s Day after a brief illness, but a full life.

We moved into our apartment the last part of February and, less than a month later, New York City went into lockdown to battle COVID-19. The “Misfits Incident” occurred one week into the lockdown. The first box arrived a week later.

March found Carol and me on our computers in separate rooms doing joint webinars and coaching for NITA. Steve Susman had directed the Civil Jury Project to draft and assemble the best protocols for remote jury trials. Our revised mission would now apply to both civil and criminal trials.

In April, Steve Susman had a bicycle accident, which required me to take over the Civil Jury Project. Steve tragically passed away on July 15 due to complications from that accident.

This brings us full circle to another August. Our travel has shrunk from the luxury of planes, trains, and automobiles to travel only on foot in the two-mile radius around our apartment. But so far, retirement has not involved much relaxation.

“Why are you retiring?,” “Do you regret retiring?,” and “What are you going to do?” were the top three questions I was asked once I made the announcement. Here are my answers.

In 1922, G.K. Chesterton wrote my answer to the “why” question. I believe that every judge should read Chesterton’s The Twelve Men at least once every year. It is funny, it is the greatest tribute I have ever read to the jury system, and it contains a cautionary tale for judges who stay on perhaps too long.

The piece begins with Chesterton being “snatched” into the jury box after summonses issued for all of the “Cs” in Battersea. He relates the specifics of two cases, one of which involved a woman accused of neglecting her children. He suspected that “something or somebody had neglected her.” He poignantly pens, “Never had I stood so close to pain; and never so far away from pessimism.”

Chesterton then turns his observations to the court. I will quote this at length for it contains my reason for retiring:

Now, it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.

Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilisation [sic] has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets. Men shall come in who can see the court and the crowd, and coarse faces of the policemen and the professional criminals, the wasted faces of the wastrels, the unreal faces of the gesticulating counsel, and see it all as one sees a new picture or a ballet hitherto unvisited.2

After 20 years on the bench, I did not want to “get used to it.” Although “fresh blood” and “fresh thoughts” refer to the jurors, the same holds true for the bench. It was time.

With regard to regret, I have not the slightest. I have heard other judges regret their decision to step off the bench. That is unfortunate. While the decision of what to do after the robe is personal, I lament when I hear of a retired judge working on nothing but his golf game. It is such a loss of talent. A retired judge can provide many satisfying services that would mean the world to people.

I regularly get together with two of my retired bench colleagues. They know that at some point in the conversation, I will ask them how they are “advancing the ball.” Both of them mentor students; one provides pro bono legal services; they both deliver “Meals on Wheels,” in addition to being active in civic groups.

I found that the general public tends to put judges on pedestals. Many are surprised when they see us do “normal” activities. When I speak to students or civic groups, many times you will find me on my hands and knees under a table plugging my presentation equipment into a power strip. This usually results in someone exclaiming, “Judge, get off the ground! We will do that for you!”

Doing any kind of volunteer work after retiring brings us down off of those pedestals. We know, but the general public may not, that those still on the bench are prohibited from fundraising, no matter how worthy the cause. Our volunteer work as retirees reflects well on the entire judiciary.

The week after I retired, I volunteered at an “expungement fair” at our local community college. We helped students with their expungement petitions so their records could be as clean as the law allows when they graduate and enter the workforce.

Many were surprised, or perhaps shocked, to see me. One said (good-naturedly, thank goodness), “You sentenced my mother.” I asked her how her mother was doing. Fortunately, she was doing quite well.

It was a rewarding experience. I had seen them on the front end of their troubles from an elevated height of about three feet. It was great to see them at the same height, sitting directly across from me trying to get their futures in order.

In 2004, I put together a program called The Seven Reasons to Leave the Party.3 It tells stories about young people caught up in the court system and gives seven reasons to leave a party if drugs or alcohol are there. Years later, I added a section with the theme Everyone’s Future Is Spotless. The program still is being presented by judges around the state of Illinois.

In the program, I tell the young people that we judges feel like coroners instead of doctors. When we see people in court, it is too late. It has already happened. We try and assist by crafting sentences such as supervision to give them a second chance or probation instead of prison.

I tell the students that the program is our attempt at preventive law. What a splash it would make if some retired judges pooled their talents to do not only preventive law, but also helped with expungements.

Many states are making the process easier and expanding the minor crimes that may be expunged. With so many unemployed due to the pandemic, having a clean record gives people a leg up for them and their family.

There has never been a greater need for attorneys to help others on a pro bono basis. Whenever I do a training for legal services attorneys through NITA or the ABA Section of Litigation, I tell the group, “To the world, you are just one person, but to one person, you can be their world.”

There are more opportunities than ever for retired judges to use their knowledge, wisdom, and expertise to assist those in need of legal services. It can be something as simple as gaining time for a family facing foreclosure. Many need help finding what benefits are available and processing the paperwork.

To my mind, the most haunting scene in any movie is in A Christmas Carol. Marley beckons Scrooge, played by Alastair Sim, over to the window. Below is a scene of people Scrooge recognizes, long since dead, trying to throw money at a mother and her child sitting on a doorstep in the snow. Scrooge asks, “Why do they lament?” Marley responds, “They seek to interfere for good in human matters, and have lost their power forever.” Retired judges still have great power to “interfere for good in human matters.”

At the beginning of this piece, I more or less answered the question posed to me, “What are you going to do?” I will go a bit deeper into that because the work I intended on doing has changed dramatically.

All advocacy training that I did in the past now is being done by videoconference. It is not the same. Also gone, at least for now, is the opportunity to train in other countries. Invitations to teach have taken me around the world. Our last international teaching trip before the pandemic was a contrast of highs and lows in advocacy training.

To a person, the advocates we trained in Myanmar were serious, dedicated professionals. However, they are practicing their craft in a corrupt system. The low point of the training for me came when I was sitting next to another lawyer who had conducted trainings in this country many times before. Through translation, the advocates were being polled on issues in their justice system.

When asked the question about corruption, many did not want to answer for fear of doing so in public. From time to time, a person not affiliated with the course would come in and just sit, or sit and take pictures of the participants.

In one session, a person came up and put a small recording device on the front table before a lecture. One of the organizers removed it and told him he could not record the lecture. The person with the recording device was not an advocate taking the course. We were told by the organizers that the secret police would send people in to monitor what was being said.

More than 90 percent of the advocates told us they had been involved in a case where a judge was bribed. At that point, I turned to my host and whispered, “If that is true, everything I’m teaching them is worthless. Even the greatest advocacy cannot overcome corruption.” He whispered back, “I couldn’t disagree with you more.” So, why does advocacy matter in a system that is corrupt?

Our trainings were in two different cities, a little less than 700 miles apart. The only common thread was the corruption in both places. The local bar leaders and local trainers were inspiring. Many had been jailed several times for exercising the freedom of speech. A journalist joined us who also had been jailed for commenting on the judicial system. He talked to the advocates assembled about the role they can play in bringing about reform.

It was after the journalist spoke that our host started his argument to me on why advocacy mattered. He explained that the media was reporting more and more on cases where it was apparent that some injustice had occurred. He argued that the greater the advocacy, the greater the apparent injustice when the verdict is a product of corruption. The last thing the reformers want is for a judge to be able to pin the adverse result on poor advocacy. That made sense to me.

When I spoke to the participants, I acknowledged that our system is not perfect. It is not totally devoid of corruption. However, given their report on the percentage of their cases involving bribery, I said the numbers probably are reversed in the United States. Corruption in the United States is the rare exception, not the rule.

One amazing anecdote frames how commonplace corruption had become in that system. During one of the trainings, the bar leaders and the participants brainstormed ways to improve their judicial system. One advocate, with total sincerity, offered that if he paid a bribe to a judge and the other side paid a higher bribe for a successful outcome, he should get his bribe money back!

While advocacy training combined with media reporting may be one path to reform, the most direct way to combat corruption is money. The judges must be paid a living wage. I was told that the wage for a judge in that country averaged around $350 per month.

When the discussion turned to judges’ pay, I was asked by someone in the group if I had ever been offered, or had taken, a bribe. When I told them I had not, the entire group applauded! It was as if this were a great accomplishment.

I said I was paid very well and could comfortably support my family. I said I would not take a bribe, and that I was ethically obligated to report it should I be offered one. In fact, a failure to report had the same possible consequences as actually taking a bribe. I outlined the consequences, such as removal from the bench, loss of pension, and jail time.

Several of them gasped when I told them that judges had been jailed in the United States for taking bribes. I urged them to do an Internet search on the term Greylord if anyone doubted me.

The high point of the course was when an advocate, who was not taking the course, appeared bearing shocking pink envelopes with gold lettering and, with great ceremony, handed them to the trainers. He was a leader in the bar association. The envelopes contained an invitation to his wedding reception the following afternoon.

So, the next day we stopped the training at noon, clambered into small, covered pickup trucks with benches, and spent our lunch hour at the reception. It was the best time I have ever had at an event where I did not understand a word of what was being said.

For the foreseeable future, that type of experience has come to a grinding halt. Business, education, and socialization are now conducted by videoconference in the United States and many places around the world. As I wrote in a recent introduction to the Civil Jury Project newsletter, the old Bell telephone slogan comes to mind—“Long distance is the next best thing to being there.”

We are longing to be there in person, whether we are talking about court, a restaurant, or a movie. However, given the pandemic, my work has turned to “the next best thing” and how we can make it better for our jury system.

Our original mission at the CJP was to examine the decline in civil jury trials, the reasons for the decline, and what we could do about it. Steve Susman was a champion of and a cheerleader for what has been called the genius of the justice system, the conscience of the community, and the most direct connection between our citizens and our constitution—trial by jury. Our work at the CJP is now aimed at finding the best methods to preserve this system of trial by jury in the face of the pandemic.

We are examining whether a jury trial, civil or criminal, may be broken into three pieces, being jury selection, trial, and deliberations. Some pieces may be done remotely, such as jury selection. So, instead of bringing 100 jurors to the courthouse, you would only have to bring the 12 that were selected remotely.

We are concerned that the pandemic may alter the demographics of our jury pools. Judges may, understandably, defer those in high-risk populations. How can we achieve a fair cross-section of the community given the pandemic hitting certain populations harder? If you have any thoughts on this, please send them to me at [email protected]. We must achieve the daunting task of ensuring public safety while at the same time preserving the right to trial by jury.

One of our first judicial advisers, U.S. District Court Judge William G. Young, described the jury system as “the purest, fairest, most inclusive and robust expression of direct democracy that the world has ever seen.”

G.K. Chesterton agrees. Once again, this deserves quoting at length:

Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.4

I end this piece with a story about a jury, two judges, and what one of those judges did with her retirement. One of my NITA colleagues, Jeanne M. Jourdan, of South Bend, Indiana, retired from the bench after 18 years of service. She missed the courtroom. She went back to court as a prosecutor.

She was trying a case in front of a judge who had the constitutional inability to not ask “clarifying” questions after each witness. His questions lengthened the trial significantly. Paul Newman’s line to the judge in The Verdict comes to mind—“Your honor, with all due respect: If you’re going to try my case for me, I wish you wouldn’t lose it.”5

Jeanne needed to call some Federal Bureau of Investigation agents to testify regarding test results. Both direct and cross would be short. The agents arrived on Wednesday and expected to leave that evening. That did not happen.

Friday afternoon came. Jeanne asked opposing counsel to join her at the bench to request that the judge ask no questions. Otherwise, the agents would be sure to miss their plane and have to stay the weekend. He responded, “Well, I’ll go up there with you, but you have to do the asking.”

They asked to approach. Granted. Jeanne explained the predicament and respectfully requested that the court make no inquiry. Silence. You could hear the ticking of the clock on the wall of the courtroom. Then, from the bench, “Step back.”

The judge then turned to the jury and said, “This is the first time in all my years on the bench that two lawyers agreed about anything. He agrees to Ms. Jourdan’s objection to me asking questions.” Silence again. As Jeanne describes it, “You could have cut the tension in that courtroom with a knife.”

Until . . . a juror . . . in the second row . . . said, “Sustained!”


1. Civil Jury Project at NYU Sch. of Law,

2. Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men (1922).

3. 7 Reasons to Leave the Party, Ill. Judges Ass’n,

4. Chesterton, supra note 2.

5. The Verdict (Twentieth Century Fox 1982).

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

By Mark A. Drummond

Mark A. Drummond was a circuit judge in the Eighth Judicial Circuit of Illinois. He is in private practice, teaches for the National Institute for Trial Advocacy, and is the judicial director for the Civil Jury Project at the New York University School of Law.