Transitioning off the Bench and Then Some!

Before describing that interesting and challenging process, some historical, personal, and legal context explaining why and how these choices were available to me when I chose to leave the full-time bench is in order. In 1978, at the age of 31, I was elected to the first of two four-year terms as a judge of the Orphans Court for Prince George’s County, Maryland. Despite its name, the “Orphans Court” is essentially a probate court, which was brought to the continent in colonial times from the old English “Court of Orphans.” It was, and is, a part-time judicial position that did not, in 1978, require admission to the bar. However, in the urban and suburban counties of Maryland and in Baltimore City, at least one of the three Orphans Court judges in each jurisdiction was always a lawyer.

When I was elected, there were two lawyer judges on the Orphans Court for Prince George’s County, Maryland. On that court, I got valuable experience both in learning more law and in the importance of judicial temperament. This supplemented my credentials even at that comparatively young age, as a former law clerk to the chief judge of the Seventh Judicial Circuit of Maryland and as a litigator engaged in the private practice of law.

This exposure resulted in my being appointed by Governor Harry R. Hughes to the District Court of Maryland for Prince George’s County, Maryland, at the age of 38 in August 1986. Created by an amendment to the Maryland Constitution in 1971, the District Court of Maryland has jurisdiction over all landlord-tenant cases, replevin actions, motor vehicle violations, misdemeanors, and certain felonies. I remained on the district court for approximately three and a half years. For over two of those years, I was designated “administrative judge” by then chief judge of the statewide district court, Robert F. Sweeney. This appointment gave me the opportunity to administratively address many of the social issues and problems arising in cases over which the district court exercised its limited jurisdiction. These areas included criminal justice and bail reform, domestic violence, landlord-tenant, and environmental cases.

My administration of this court was viewed favorably by the bench and the bar and was noticed by the political community, thereby generating support for my next advancement up the judicial ladder to the Circuit Court for Prince George’s County, Maryland, in May 1990 at the age of 43. The Maryland Circuit Court is the state’s trial court of general jurisdiction. I remained on the circuit court for the balance of my full-time judicial career until I “retired” in January 2007 at the age of 60, a little less than 16 years later. I was also specially assigned to sit on Maryland’s intermediate appellate court six or seven times during that time period.

Judicial service and retirement in Maryland are calculated on the basis of a judge’s service on the full-time benches, which means one of the two full-time trial courts, such as the district court or the circuit court and/or the two full-time appellate courts. Therefore, my service on the Orphans Court was not included in the calculation of my eligibility for “retirement” with the full judicial pension. After service on one or more of the full-time benches for a minimum of 16 years and having attained the age of 60, a judge in Maryland is eligible to “retire” or take senior status, which means the senior judge can be recalled if approved by the Court of Appeals, Maryland’s court of last appeal.

The difference between a judge “retiring” and being approved for senior status is that if senior status is requested and approved, the “senior judge” can be recalled to sit and be compensated on a per diem basis for each day the judge works, based on the salary the judge earned in their last full-time position. This per diem compensation is paid in addition to the judge’s pension. Both the pension and the per diem increase proportionately whenever the judiciary receives a pay raise. Whether the judge is retired or on senior status, the judge’s pension is two-thirds of whatever the salary the judge received in his or her last full-time judicial position. A senior judge cannot engage in the practice of law and be recalled. Significantly, however, and not without some controversy, a senior judge by rule can both engage in private alternative dispute resolution (ADR) activities for pay and also be recalled to sit as a judge, subject to strict ethical standards and disclosures.

Translated and applied to me, this meant that in August 2002, at the age of 54, I had the years of service on the full-time bench to be eligible to “retire” or assume “senior status,” but was six years away from meeting the age requirement of being 60 years old. I knew that and thought about the future even then. In thinking about it, I was also aware that judges were constitutionally mandated to “retire” at the age of 70.

I concluded that I certainly would not wait until I turned 70 to transition from the full-time bench. My reasons were both personal and professional. During my judicial career, along with presiding over many, many cases, I had significant administrative and management experience. I had been assigned total management responsibility for two of the trial courts that I served on. I had been chief judge of the Orphans Court for two years and administrative judge of the district court for two of the three years I served on those courts. In addition, I was assigned management responsibility at one time or another during my 16 years on the circuit court for every division of that court except juvenile. I enjoyed judging and I enjoyed the management of judicial personnel staff and clerks as well as operations and systems.

As time marched on, however, I had become increasingly frustrated with what I perceived as bureaucratic inertia and reluctance by the judiciary to recognize what I viewed as the changing legal culture and to adapt its institutions and operations to address the altered expectations of the citizens that we served. In addition, on a personal level, I found that the job of a circuit court judge was changing in a way that made it less fulfilling for me personally than it had been previously.

I always enjoyed the intellectual challenge inherent in presiding over complex litigation, for example, trials by experienced, at times, elite lawyers—the best at their craft. As the years passed, I found myself doing far less of that and more in effect refereeing disputes between self-represented litigants. That took a toll. While I recognized that my personal fulfillment was of necessity required to take a back seat to the need for increased access to justice, I was nevertheless driven to look elsewhere than the courthouse to keep my life interesting.

While still a full-time circuit court judge, this “feeling” led to my appointments in various leadership positions where I could look at the judicial system more broadly. I served as vice chair of the Maryland Business and Technology Case Management Program Task Force, created by legislation passed by the Maryland General Assembly; chair of the Judiciary’s Statewide Implementation Committee, to implement the Task Force’s recommendation; and chair of the Circuit Court for Prince George’s County Strategic Planning Committee. I was recognized as the architect of the Prince George’s County Circuit Court Drug Court and the total restructuring of the operations and staff of the Prince George’s County Circuit Court Family Division. By January 2007, this “feeling” or mindset that I had accomplished all that I could as a full-time judge led to my retirement from the full-time bench.

While I was transitioning, the profession of private alternative dispute resolution was emerging alongside the development by the judiciary of problem-solving courts. These new institutions and occupations were the result of a subtle cultural change that began in the 1990s but, not coincidentally, became more evident at the beginning of the twenty-first century. That change was the result of the perceived newfound belief of those persons whose disputes it was traditionally the judiciary’s responsibility to address that those disputes were not being satisfactorily resolved unless the underlying causes of the disputes were dealt with and that the courts were not constitutionally or operationally capable of doing that. These expectations of the parties in “cases” were enhanced whether their disputes were addressed by judges, juries, arbitrators, hearing examiners, magistrates, investigators, police, or social workers in courtrooms or conference rooms.

That change was accompanied by a recognition that the underlying cause of most disputes usually is more economic and psychological than it is legal or even factual. Perhaps not surprisingly, this thought was met, reluctantly, and in some cases with resistance and controversy, in the law offices of certain lawyers and the chambers of some judges. Whether that changed expectation resulted from economics including a severe recession in 2007–2010, a generational shift in the litigant population, or as a byproduct of all three branches of government’s focus on providing increased “access to justice” will have to remain a question to be explored some other time in another forum. Whatever the cause of this change in litigants’ expectations for their judicial institutions, it was not accompanied by a sophisticated understanding of the constitutional, statutory, and, most importantly, practical limitations of the judiciary branch of government’s ability to delve into disputes to the extent expected. Nevertheless, the change was clearly the result of the hue and cry from all segments of society at the beginning of this century to reduce the costs of dispute resolution, generally and particularly, for litigation in both the short and the long term. That realization was accompanied by the further recognition that in order to reduce the costs, these disputes needed to be resolved in a manner that economically and efficiently addressed their cause so the dispute would not be repeated.

In turn, the result of that enhanced expectation was that the public and private institutions, including law firms and courts, were compelled to dramatically change their business models and work processes to accommodate these enhanced expectations. This trend was no doubt accelerated as a result of the Great Recession, which caused even the wealthier corporations, LLCs, and individual clients to conclude that they either could not or would not pay the skyrocketing cost of full-blown litigation.

As a result, corporate in-house counsel, law firms, and individuals began looking for cost-effective alternatives to full-blown “all the way through trial and appeal” litigation in order to remain economically viable. Courts began to incorporate ADR into the dispute resolution services they offered in order to remain relevant, lest they be replaced by private alternatives or, as feared by some, devolve into the lower tier of an economically tiered civil justice system.

The evolution of the profession of private mediator and the increased use of that new profession as well as other methods of alternative dispute resolution, including arbitration, neutral case evaluation, med-arb, and conflict coaching, resulted from this cultural shift. The development of the ADR profession was accompanied by a proliferation of education and training programs of varying quality, along with discussion and debate within the state and federal judicial and legislative branches of government, as well as law schools, as to whether the ADR profession and practitioners should be regulated and, if so, by whom.

These developments were noticed by judges, including this judge. By the time that I contemplated my personal transition off the bench full time in 2006–2007, one of my mentors, Judge Howard S. Chasanow, had established himself as a premier mediator. Among many others, John McCammon was establishing a formidable group of “retired judges” and “senior practitioners” in Virginia to be known as The McCammon Group, and JAMS was establishing a national, indeed international, presence and reputation.

Contemporaneously, the judiciary was belatedly recognizing this primarily economic and cultural, but also legal and political, reality. Their reaction was to form panels of potential mediators, particularly for family law cases. The courts also began to establish problem-solving courts and specialized case management dockets to meet the “special needs” of the parties, which, when distilled, usually could be defined as addressing not only the case but also the underlying causes of the parties’ disputes for the reasons previously explained in this article. These problem-solving courts would then resolve these disputes or problems in a more timely fashion and were designed to secure more rational, legally correct, and predictable dispositions.

The most prominent among those problem-solving courts and specialized case management dockets in Maryland was the Maryland Business and Technology Case Management Program.

The “special needs” of the parties and counsel in business cases were identified as more timely, rational, legally correct, and predictable resolution of their disputes. It was recognized that it was also important that these disputes be resolved or decided in a manner that recognized that an arbitrarily or unduly delayed resolution of a case or dispute could literally devastate economically one or both of the parties’ ability to continue to operate. Similarly, a legally incorrect, impractical, or illogical ruling, particularly on a request for temporary restraining order or a preliminary injunction, could unfairly and irreparably leverage a business party’s position so that it could not recover legally and, more importantly, financially and operationally.

At best, legally incorrect, illogical, and/or untimely, for example, unduly delayed resolutions of business disputes unnecessarily caused great difficulty for business organizations and their lawyers, as well as other professionals, in accurately quantifying risk, not just in specific cases but generally going forward in their operations. For that reason, among others, ADR was integrated into the Maryland Business and Technology Case Management Program as a means of timely meeting those special needs.

It was into this changing legal institutional and cultural landscape that I transitioned off the full-time bench in January 2007. My background leaving the full-time bench was as a judge who had exercised management responsibility for every division of the circuit court and had been the administrative judge of the district court.

Experience managing complex nonfamily civil cases naturally included hands-on responsibility for the trial and administration of all professional liability cases, including legal malpractice, medical malpractice, construction litigation, and business litigation. This history and experience, without any doubt, shaped the market for the ADR services that I would provide. That market was, and remains, concentrated with professional liability cases, business litigation, and disputes, as well as construction litigation. It was reinforced by the basic and advanced training that I received and paid for in mediation and other ADR techniques, as well as my subject-matter continuing legal education. My market was also enhanced by the experience of conducting settlement conferences in thousands of cases while on the bench hearing cases on three different trial courts and mediating for Maryland’s Intermediate Appellate Court.

Added to that list of past full-time bench activities, the opportunities post transitioning off the full-time bench came my way courtesy of my friend Retired North Carolina Business Court Chief Judge Ben Tennille and the U.S. State Department and Commerce Department to “consult” and instruct Iraqi and United Arab Emirate judges in the beautiful city of Dubai on how to preside over business litigation. This was a very important, interesting, and fulfilling experience that would not have been possible if I had remained on the full-time bench. In addition to that, I had the opportunity to consult on business courts, jury trials, and Arbitrazh Court Administration in Russia through the Vermont Kurelia Rule of Law Project and the Russian American Rule of Law Consortium (RAROLC), traveling to Russia three times with Judge Alan Wilner for those purposes.

In addition, since my “retirement,” I have been hired to investigate and report on allegations of employment discrimination for various municipal and private corporations, including charges of nepotism. This does not even mention the hundreds of interesting cases that I have mediated and arbitrated over the last decade that cannot be disclosed in detail because there are too many of them and because of the confidentiality and ethical requirements that preclude their disclosure. These cases include the breakup of medical LLCs, law firms, and other professional entities. They also include cases of sexual harassment, wrongful termination of executives, and cases bordering on blackmail and other similarly confidential cases.

My entry into the very different world of ADR in 2007 was initially alone. But it didn’t take long for others to join me and to share in my vision shaped by the events described above. See The Platt Group, Inc. website at http://www.theplattgroup.com.

Finally, after an adult lifetime on the bench learning valuable lessons and always thinking that if I had not been a lawyer and a judge, I would have liked to have been a newspaper publisher, editor, or columnist, I began writing. For more than a decade, I wrote for The Daily Record, a daily legal newspaper published in Baltimore, and Maryland Matters, a web-based news service, as well as a blog that doubled as both an op-ed column and a commentary on “The Intersection of Law, Economics and Politics.” These articles are branded as “A Pursuit of Justice,” posted on the web at http://www.apursuitofjustice.com.

Bottom line—your experience, vision, and demeanor on the bench can and will either enhance or limit your activities and the market for your services, and lifetime activities, after a career on the full-time bench. Plan on it with that in mind—and when you do recognize that there is nothing wrong with knowing as you live your current professional life as a judge that life doesn’t necessarily begin and end on the full-time bench, and you realize what’s going on around you while doing your job on the bench, you can enhance or even create opportunities for your next professional life, if you choose to have one.