The Bankruptcy and Insolvency Litigation Committee hopes to have an opportunity to periodically introduce new judges to practitioners, particularly new attorneys. The committee is pleased to provide below its interesting and insightful interview with the Honorable Shelley C. Chapman, United States Bankruptcy Judge for the Southern District of New York. The interview was conducted by Robert Fishman and Jay Geller, the respective chair and vice chair of the committee’s Business Bankruptcy Litigation Subcommittee.
Q: Why did you want to become a bankruptcy judge?
A: While I always have been committed to public service, I must confess that I never thought about becoming a bankruptcy judge until I was encouraged to apply by a highly respected member of the bankruptcy community. Frankly, I do not think that I would have had the nerve to do so without that encouragement. Sitting in the Southern District of New York feels like playing in Yankee Stadium––the magnitude and complexity of the cases, the skill of the bar, and the reputation of the court make it a pretty daunting assignment. At the same time, having practiced with so many of the practitioners for more than 20 years, it came to feel like a logical next step.
Q: What was your legal experience before you were appointed to the bench? Private practice? Judicial experience? Bankruptcy? Business/Consumer?
A: There have been three chapters to my career: (1) From 1981 to 1986, first in Chicago and then in New York, I was a litigator with what was then called Sidley & Austin. I was given the opportunity to appear frequently in court and loved it. (2) In about 1989, in the age of Drexel and Eastern Airlines, I transitioned to become a bankruptcy lawyer at Sidley. I mainly did creditor-side work, representing banks and other financial institutions. (3) I joined Willkie Farr & Gallagher in 2001 and reinvented myself as debtor-side lawyer, working on a number of large chapter 11 cases. These three chapters certainly helped prepare me to handle the variety of matters that now come before me. I did not, however, have any experience with consumer cases before taking the bench.
In the Southern District, one judge at a time is responsible for the chapter 13 docket. It is a difficult but very satisfying task. The typical calendar is between 60 and 100 cases, one to two times per month. When there are certain more complex issues involved, for example, allegedly fraudulent mortgage documents, we take those off the regular chapter 13 calendar and schedule them separately. It was a steep learning curve, and it was hard to balance the chapter 13’s with the matters I was handling on my chapter 11 docket. I just completed my rotation as the chapter 13 judge––I learned a lot and had very mixed feelings about passing the baton to Judge Lane.
Q: Do (did) you have a mentor? Is there another judge on whom you’ve tried to model yourself or who has had a significant impact on how you run your courtroom and treat attorneys and parties?
A: I have been extremely fortunate to have had mentors at every step of my career. I was the first person in my family to go to college and had no experience whatsoever in the professional world until I was a summer associate at Paul Weiss. I was pretty unpolished! That summer, and then at both Sidley and Willkie, I was blessed with incredible teachers and friends who taught me how to be an effective lawyer and, even more importantly, took an interest in my personal well-being and success. My good fortune has continued here at the court where it is not an exaggeration to say that each and every one of the judges has been supportive and helpful as I learn the ropes.
I have had a somewhat unorthodox career path. I “resigned” from Sidley & Austin in 1986 as a sixth-year associate to have two daughters within 20 months. In 1989, I returned to Sidley to work part-time and in 1993 became one of the first big firm part-time partners in New York. Leaving Sidley in 2001 was difficult but joining Willkie, as a full-time partner, was a life-changing event for me and my family. The rest, as they say, is history.
Q: Where did you go to undergraduate and law school?
A: I went to law school at Harvard. I attended Cornell as an undergraduate.
Q: Do you think it was/would have been an advantage to have practiced bankruptcy law before becoming a judge? How about having been a litigator?
A: Without a doubt both my bankruptcy and litigation experiences have been invaluable. I would not go so far as to say that a bankruptcy judge has to have been a bankruptcy lawyer, but it really helps to “get it.” Bankruptcy court is like no other court—the speed, the marriage of the practical with the legal, the interplay of so many disciplines within the law. I do think that having extensive courtroom experience is critical.
Q: After you were appointed, but before you took the bench, what were you most worried/concerned about?
A: Two things: (1) knowing that I was on deck to become the chapter 13 judge, I was very concerned about not having had any consumer bankruptcy experience; and (2) knowing firsthand how intense the large chapter 11 cases are, I was anxious about my ability to conduct the so-called mega cases competently and efficiently.
Q: How did you know what to do in your first days, weeks, and months on the bench? What was “Baby Judge School” like?
A: Baby Judge School was a wonderful experience. Judge Ray Mullins headed the faculty and taught me an invaluable lesson––keep a poker face on the bench, and be a guiding force. I do try to do that, but I am not sure I succeed all the time. My first months on the bench were dizzying––I went from 0 to 60 in about 5 seconds. I didn’t even have time to be scared. It was as though the wheel got stuck on me. I think I had 10 mega cases assigned to me in my first six months. It was basically a vertical learning curve. Believe it or not, I even got two family farmer chapter 12’s and several chapter 15’s.
Q: Is being a judge more isolating than what you did previously? How do you handle that isolation? In that same vein, where do you draw the line on the “appearance of impropriety”? Have you maintained friendships with attorneys and other professionals? In what circumstances do you believe that recusal is appropriate? Would it be easier or harder to become a judge outside the district where you previously practiced? Would it be easier to be a judge in a multi-judge district?
A: Much less so than I anticipated, for several reasons. There is tremendous collegiality in the SDNY Bankruptcy Court. Not a day goes by without visits or calls with Chief Judge Gonzalez and one or more of the other judges and with our Clerk of Court Vito Genna and Chief Deputy Una O’Boyle. Also, because of the activity level of the Southern District, I frequently see former colleagues, co-counsel, and adversaries. Even though my communication with these folks may be limited now, it is nonetheless nice to see the familiar faces. Finally, and perhaps most importantly, my chambers staff is delightful. There is a lively atmosphere here every day.
As to “appearance of impropriety” issues, I take a very conservative approach. I make disclosures on the record of connections I may have to attorneys and others, and I am strict about refraining from communicating with colleagues and professional friends who appear before me. So far, I have not had to recuse myself from a case. If an individual attorney is active in a case, I have no social contact with that person or any other person at that firm. New York is actually a small town. I certainly will say hello to people at public events. Simply stated, I try to preserve the pristine integrity of the judiciary.
Q: Do you have a demeanor that you try to project from the bench?
A: I try to be very patient and very respectful, while insisting that those who appear before me respect the Court, (meaning the institution) and the bankruptcy process. I will not tolerate disrespect for the Court or animosity between counsel. I always try to be on time and well prepared so that I can actively engage counsel, yet I try to maintain an open mind. When appropriate I may try to inject a slight bit of humor into the proceedings to help the parties maintain perspective.
Q: How do you prefer to be addressed, by first name or as judge? Does it vary based on the circumstances?
A: I have accepted that “Judge” is my new first name, but it takes some getting used to.
Q: Do you wear formal clothes under the robe, or is your chambers casual dress?
A: I dress for comfort. I can be sitting up there for a long time! For a serious day of work in chambers, it will be casual but chic.
Q: What do you look for in a law clerk? How do you allocate responsibility between you and the clerk?
A: I have a unique and wonderful chambers situation because my career law clerk worked with me as an associate at Willkie Farr for seven years. Because of that prior relationship, she knows how I like to do things and has helped me train my second law clerk. I take a hands-on role in my cases to move them along, and we work collaboratively to make that happen. My law clerks are both excellent at reading my mind, so that really helps. They also have a wonderful rapport with the bar.
Q: How active a role do you play in settlement negotiations? Do you refer matters to other bankruptcy judges for mediation? Do you prefer to use other bankruptcy judges, private practitioners or professional mediators to serve as bankruptcy mediators?
A: I take an active role in trying to resolve disputes. I will frequently go off the record, share my thinking, and try to hammer out a resolution. I try to help the parties get to a “real-world” solution to their issues. However, I draw the line at becoming a de facto mediator or advocating for a specific settlement. I do always raise the possibility of settlement, because I believe it is beneficial to at least attempt to settle. I often will offer to get another judge involved, although I also am content to have the parties choose their own mediator.
Q: How difficult has it been to manage electronic discovery? How actively do you become involved in managing electronic discovery?
A: I haven’t had to deal with it very much. On one occasion, I recall brokering an agreement regarding appropriate search terms. I am not unhappy to have left practice before the advent of e-discovery.
Q: How do/will you handle:
1. Counsel who doesn’t appear to know what s/he is doing? One counsel is more knowledgeable about trial technique and the Federal Rules of Evidence. S/he is in a position to exclude potentially important evidence or introduce potentially damaging evidence. How do you view your role as evidentiary gatekeeper in equitable proceedings? Do you intervene, or do you let the prepared counsel win the case?
A: I believe in the adversary system, but I have a hard time tolerating a party not getting a fair hearing because a matter is neglected or under-lawyered. I see this more often in the consumer context, and I simply will not let a consumer debtor suffer. I have, in fact, ordered fees returned and other sanctions when a debtor’s counsel has been inexperienced or otherwise unable to represent the debtor adequately. When it comes to evidence, I try to have a light touch. I would rather have an expansive record than an overly limited one.
2. Neither counsel is asking the question(s) you want answered. Do you ask the question, or do you rule without the information?
A: A party has to carry its burden of proof, but I will often ask questions on direct and cross when I need certain facts to make a decision.
3. One or both counsel is being uncivil. What will you do?
A: Put a stop to it. I have asked counsel to take a seat, reminded them that they will have their turn, but that they don’t get to interrupt. On unusual occasions, I have asked everyone to be quiet. I remain civil, but my unhappiness is certainly apparent in these situations. Fortunately, I find that parties do treat each other with civility in even the tensest situations.
Q: How would you compare the stress level of being a judge versus what you did previously?
A: It is a huge relief not to have clients. That being said, the weight of my responsibility is very stressful. This is true not just in mega cases, but also––if not more so––in the smaller cases. In every case, no matter how small, the stakes are very high to those involved. It is of upmost importance to me for all parties who appear before me to feel that they have been heard and have had access to justice.
Keywords: bankruptcy, litigation, interview, Shelley C. Chapman, judge, chapter 11, law clerk
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