September 17, 2014 Articles

An Interview with the Honorable Bruce A. Harwood

The committee is pleased to present an interview with the chief U.S. bankruptcy judge for the District of New Hampshire.

By Jay Geller

The Bankruptcy & Insolvency Litigation Committee hopes to introduce new judges periodically to practitioners, particularly new attorneys. The following interview is with the Honorable Bruce A. Harwood, chief U.S. bankruptcy judge for the District of New Hampshire. The interview was conducted by Jay Geller, cochair of the committee’s Business Bankruptcy Litigation Subcommittee.

Q: Why did you want to become a bankruptcy judge?
A: What appealed to me most is that the role of a judge seemed to be true to my personal temperament. I tend to gravitate toward a perspective of balance rather than advocacy, of considering all sides of a matter rather than arguing for a particular outcome. I was conscious of this dichotomy throughout my career, and I was drawn naturally to the position.

Q: What was your legal experience before you were appointed to the bench? Private practice? Judicial experience? Bankruptcy? Business/Consumer?
A: I spent the first six or seven years of my career at Schwartz Cooper Kolb & Gaynor in Chicago, where I primarily represented debtors and committees in Chapter 11 cases. I did not interview to become a bankruptcy lawyer, but rather fell into it. On my first or second day at the firm, I became involved in a Chapter 11 case on behalf of a debtor who owned a number of McDonald’s franchises. McDonald’s wanted to terminate the franchises. The debtor filed for relief just before McDonald’s was able to terminate them, and I was introduced to the enigma of “executory contracts,” a term which I was surprised to learn had no statutory definition. The ensuing two years of litigation taught me a lesson about the varied aspects of bankruptcy practice. The case involved franchise law, bankruptcy law, and litigation in a David versus Goliath context (I found myself comfortable in the role of David). After a while, I noticed that I was getting an ever-increasing number of calls from other lawyers I knew with questions about bankruptcy issues, and I found myself conversant enough to deliver a few cogent answers. I became a bankruptcy lawyer without realizing it.

In 1987, I moved to New Hampshire and practiced at Sheehan Phinney Bass + Green, all the way up until I was appointed to the bench. New Hampshire is a smaller market, and therefore I was not able to do predominantly Chapter 11 work. This expanded the breadth of my practice, which came to include more out-of-court restructurings, secured creditor work, and creditors committee engagements. I also became a member of the panel of Chapter 7 trustees, and ultimately branched into state law insolvency issues involving the rehabilitation and liquidation of insurance companies and banks. I’m not sure that I would have had the same opportunity to diversify my practice in Chicago that way, and the broadened scope of work reinforced the appeal of a bankruptcy-related practice; it really is a “big tent.”

Q: Where did you go to law school?
A: Washington University School of Law in St. Louis.

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: My original mentors were in Chicago. They included Howard Adelman and David Missner. They are very different people, but I learned a lot from each of them. Mostly, I learned by doing. They did not so much as give me instruction, but rather taught me to be confident in my own abilities. They gave me a great deal of responsibility early on, probably more than I would’ve gotten elsewhere, and perhaps more than I initially deserved. It was not a traditional big firm experience where I participated in an organized, dedicated training program. While it was somewhat uncomfortable at the beginning and I might have benefited from more early training, I learned the importance of figuring things out on my own and not relying excessively on others.

Another important early mentor was David Leibowitz. David is a very thoughtful person. I would come into his office with questions, and more often than not, he would point to a paperweight on his desk that said, “What does the contract say?” There was a startling high percentage of questions that could be answered by what the contract said. This seems obvious in hindsight, but it was an important lesson to learn when dealing with textual questions, whether contractual or statutory. Another important lesson that I learned from David is that being a professional means treating people with equal respect regardless of how you feel about them or the position that they are taking. There were times when I represented clients who took some tough positions, but that was something I had to accommodate as part of the job.

Another mentor—or perhaps role model—whom I would be remiss in not mentioning is Judge James E. Yacos. He was the only New Hampshire bankruptcy judge when I moved here, and he superbly managed what became a crazy-busy docket in the late 1980s and early 1990s as the stock and real estate markets tanked and a number of banks were taken over by their regulators. He also was an extremely thoughtful person. He published The Broken Bench Review from Hanover, New Hampshire, a newsletter that I used to read while I was still practicing in Chicago. It was from his newsletter that I learned the etymology of the word “bankruptcy.” The word derives from the Italian banca rotta, or “broken bench,” a term which I understand originated from the practice in ancient markets whereby merchants and money lenders who became insolvent would literally have the marketplace benches (from which they transacted business) broken. I always said at the time that if I had to practice in a single judge district, there is no other judge that I would prefer to have in his place. I pray that people will feel similarly about me. He was a judges’ judge, and I aspire to that. He ran an efficient courtroom, he gave everyone their due, he asked thoughtful questions, and everyone felt like they got a fair shake. I try to emulate that in my courtroom every day.

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: I did practice bankruptcy law, but I think it would have been advantageous to have been more of a litigator. My former firm had a litigation department, and the bankruptcy group was not part of it. We were encouraged to engage members of our litigation group when bankruptcy matters involved litigation, and we usually did. As a result, to go from that sort of practice to being a trial judge was more of a transition that it would have been, had I done more of my own litigation.

Q: After you were appointed, but before you took the bench, what were you most worried/concerned about?
A: Initially, I was most concerned about being as prepared as I wanted to be for every single case. I spent the better part of two days preparing for my first hearing day, but when the calendar started, I found that 80 percent of the matters had been resolved while I was preparing and did not need to be heard. I realized then that I needed to be more cognizant of the fact that there is only a limited amount of time to prepare and that preparing for non-hearings just isn’t efficient.

A second concern was how it would feel to be physically removed from the rest of the courtroom. It is a dramatically different perspective to sit on the bench. At first, it felt sort of like looking through the wrong end of binoculars. You’re so far away from people and looking directly at them, rather than being shoulder to shoulder with them and seeing them in profile. It took a while to get accustomed to being in the courtroom with such a different perspective.

I also was concerned about getting up to speed in Chapter 13 cases. I suspect this would be the same for new judges dealing with Chapter 11s who previously worked primarily in the consumer context. I don’t think one can appreciate the depth and complexity of the issues that arise in each of these areas until one is involved in them in real time. I didn’t want to create an impression that I was learning how to fly when the plane was already at 30,000 feet. All of these are anxieties that require careful management so that they don’t overwhelm you.

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 had two phases. I attended the first phase about one month before I took the bench and the second about eight months later. I think that baby judge school is a very good idea. Phase I occurred in a conference room at the Bankruptcy Court for the Southern District of New York. There were eight or nine people sitting in a conference room for the better part of four days. We had both live and video instruction, and the ability to both ask questions of experienced judges and share our concerns among ourselves. However, as good an experience as it is, it is hard to come away from one or two weeks of any sort of instruction feeling as though “now I’m ready.”

When you take the bench, all eyes are on you, and every word is recorded. There is no training to prepare for every situation that you might encounter. I remember something that Bankruptcy Judge Haines said at Phase I: “Sometimes you need to remember what your old self might have done.” When you become a judge, you are occasionally tempted to abandon or rethink years of experience and judgment, but it is important not to forget the things that got you there. Judge Haines’s admonition was a needed reminder because it felt so foreign to all of us.

One of the things that baby judge school did teach is the importance of making a record. Decisions need to be supported by an adequate record, yet given the case-loads, we also need to be efficient. The challenge is to find the sweet spot between deciding those that can be ruled on from the bench and those that require an evidentiary hearing. It took a while to get a sense of what could be decided based on a motion record versus a more developed record.

Finally, before I took the bench, I sat in Judge Deasy’s courtroom (at the clerk’s workstation) for a couple of Chapter 13 days. In New Hampshire, the Chapter 13 motion docket usually has about 90 cases scheduled on a given day, although they are usually reduced to 45–60 by the date of the hearing. The hearings can sometimes be like 341 meetings on steroids—multidimensional and high-volume. There is a lot to keep straight, and you often don’t know which cases will be resolved and which will actually be heard until shortly before the hearings commence.

Q: Is being a judge more isolating that what you did previously? How do you handle that isolation?
A: Absolutely. How do I handle it? It’s difficult. I used to see a lot more of fellow attorneys whom I now only see in passing on the elevator or on the street. I anticipated that heightened isolation, but it is different to actually experience it. Someone once told me that when you become a bankruptcy judge, you acquire a new group of 350 friends, namely, your fellow bankruptcy judges. That is true to some degree, but it is not daily interaction and life acquires a different rhythm. For example, I never recognized how big an impact the phone had on me until it stopped ringing. The same is true with email. I used to get hundreds each day and now only get a fraction of that, many of which are administrative. There is really little that can be done about the heightened isolation; it’s just something that you need to accept and deal with.

Q: 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: New Hampshire is not quite a single-judge district; Judge Deasy has been serving on a part-time basis as a recalled judge, for which I am very grateful. I established a period of time (which is still pending) in which I would not hear cases in which lawyers from my former firm appear. Fortunately, Judge Deasy can hear those cases. If he was not still sitting, then I would have had to refer them to a judge in Maine, Massachusetts, or Rhode Island. This has made conflicts manageable.

I knew a great many of the bankruptcy lawyers in New Hampshire before I took the bench. That’s simply a fact of life in a small district, and I have yet to feel a need to recuse myself from cases based on how long I’ve known any particular lawyer. I feel that I need to be, and can be, impartial, regardless of how long I have known counsel. But that’s not to say that I’m not conscious of the newly imposed distance. It doesn’t feel as different as it did, but it still feels different.

Q: Do you have a demeanor that you try to project from the bench?
A: I try to project a demeanor of (1) fairness, (2) evenhandedness, (3) preparedness, and (4) civility to lawyers and parties alike. I also try to discourage incivility.

Q: How do you prefer to be addressed, by first name or as judge? Does it vary based on the circumstances?
A: Initially, I told people in social situations to continue calling me Bruce, but I soon realized that that actually might make people feel uncomfortable—which of course was the opposite of what I was trying to do. As time has gone on, I’ve erred on the side of what makes people feel most comfortable. For example, even close friends might feel better introducing me in public as Judge Harwood. I’m fine with that.

Q: Do you wear formal clothes under the robe, or is your chambers casual dress?
A: We had an office casual policy at Sheehan Phinney for years. When I started on the bench, I maintained that policy. I usually do not wear a suit unless one is warranted for an event outside of court. However, I always wear a tie on the bench. Dress code in chambers is business casual for staff, except on casual days where there are no hearings. Even on those days, I dress in business casual attire. When I go out to lunch or out of chambers for any reason, I feel that I should maintain a sense of decorum as a judicial officer.

Q: What do you look for in a law clerk? How do you allocate responsibility between you and the clerk?
A: I participated in hiring the two clerks who are at the court now. Both of Judge Deasy’s clerks accepted job offers when he was planning to retire. We jointly hired the clerks to replace them.

I was most focused on people who had more experience in areas of the Bankruptcy Code where I was weakest, primarily consumer bankruptcy law. I wanted people who could best support me and help me be efficient. I did not hire people who were straight out of law school, but rather looked for people with specific subject matter expertise, clerk experience, and people with whom I would like to work.

In terms of work allocation, the clerks read the pleadings and prepare bullet point summaries. I read both the pleadings and the summaries. The clerks generally do first drafts of orders and opinions, but only after discussing them with me. In those instances where I do not yet know how I am going to rule on an issue, I ask my clerks to draft a template of the record while it is fresh in everyone’s mind. Often that template helps focus the analysis necessary to reach a decision.

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’ve had little experience in this area thus far. I will sometimes play an active role in stay relief and adequate protection matters where an agreement appears to be achievable. In those instances, I may try to help the parties bridge the gap and find common ground, but I do not become extensively involved.

I’ve yet to conduct an in-chambers settlement conference. I have suggested strongly that parties consider mediation, but I’m not convinced that I have the authority to force them to mediate. I have suggested that parties utilize Judge Deasy as mediator, and parties have suggested Judge Deasy as an option to me. I certainly am willing to use other judges as well, and to help other judges by mediating their cases. I believe that having a judge as a mediator can be very helpful, but I don’t necessarily prefer judges.

Q: How, if at all, does the national political climate affect you in your capacity as a bankruptcy judge? Solely by way of example, many judges have been critical of BAPCPA, and some have felt compelled to rule in ways that they believe is inequitable. How do you deal with these types of issues (if at all)?
A: One aspect of the national political climate that I have encountered in greater detail than I’d like is the congressional budgetary process—and last fall’s sequestration machinations in particular. It was as dispiriting and frustrating an experience as I have had. The judiciary is being asked to do more and more with less and less. Ultimately, that will not produce results that people are entitled to expect and to get. It has nothing to do with the parties before the court.

As far as BAPCPA is concerned, there are certain requirements that work in ways that are akin to sentencing guidelines. In some instances, reducing or eliminating judicial discretion can lead to borderline absurd results. I think that judges sometimes have to struggle to interpret the law in a way that makes sense, but yet is consistent with the statute.

Q: Have you had to deal with out-of-town professionals who want to charge significantly higher rates than prevailing local rates? Do you have any policies that you follow in this area?
A: I haven’t had to address that issue to date. Some attorneys from Boston have appeared in cases before me, but their hourly rates have been close to the rates of the local attorneys who appear before me.

Q: How difficult has it been to manage electronic discovery? How actively do you become involved in managing electronic discovery?
A: I have not yet had to deal with issues relating to electronic discovery.

Q: How do/will you handle:

 

1. Counsel who does not appear to know what he or she is doing? One counsel is more knowledgeable about trial technique and the Federal Rules of Evidence. He or she 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: If there is a jurisdictional issue, then the court has an independent obligation to decide it, and I will raise those kinds of questions even if the parties have not. Parties need to be prepared, and I have no problem asking questions and following a thread.

Outside the jurisdictional context, it is a very slippery slope to start leveling the playing field, and I am disinclined to do so simply to fill in gaps in skill sets between lawyers. It is the judge’s job to decide, not to advocate; that is the lawyer’s job. If I do that for one party or attorney, then I might feel compelled to do so for everyone. I don’t believe it is the court’s job to assist lawyers in overcoming the weaknesses of their case or their presentation. However, that is not to say that I wouldn’t ask a question or two to elicit pertinent information.

2. Neither counsel is asking the question(s) you want answered. Do you ask the question or do you rule without the information?
A: This question implicates some of the same issues as the prior question. I would first rely on cross-examination, but then I would feel free to ask. However, the answer to this question is not always clear. To some degree, I think it would depend on the circumstances. There may be a tactical reason that counsel did not ask the question.

3. One or both counsel is being uncivil. What will you do?
A: Fortunately, I haven’t encountered this very often in the courtroom. I would likely start with humor and move to outright admonition only reluctantly. I try not to lecture people; that is not the most effective way to modify behavior. This approach has tended to work to date. Frankly, incivility is never appropriate, and almost always counterproductive to what people are trying to accomplish.

Q: What advantages and disadvantages do you perceive about being a bankruptcy judge versus, for example, a federal district court judge?
A: The biggest advantage that I would see in being a district court judge is the absence of ambiguities about jurisdiction and authority that seem to plague bankruptcy judges constantly. This issue has existed since I started practicing in 1981, and I wish it would get resolved once and for all. It is a tremendous waste of resources for parties and the courts.

Q: How would you compare the stress level of being a judge versus what you did previously?
A: Although I was not overly concerned about work flow, it is nice not to have to worry about business development, billing time, or collecting accounts receivable.

There is a significant difference between arguing a position versus deciding an issue. As a lawyer, you don’t need to be right; you need to be an effective advocate. As a judge, there is a heightened emphasis on certainty, as well as what a particular ruling might mean for future cases. Being the ultimate decision maker is both more gratifying and more difficult. It is not stress free, but the rhythms are different. I have more control over my schedule, yet I am working as hard or harder than I have ever worked. I feel tremendous pressure (admittedly self-generated) to get up to speed on all the matters that are before me. It has been a huge step outside the comfort zone that I had established after practicing for more than 30 years, but that challenge was part of what attracted me to the job to begin with. I believe that greater comfort will come with time.

Keywords: bankruptcy and insolvency litigation, Judge Harwood, District of New Hampshire, business bankruptcy, consumer bankruptcy

 

Jay Geller – September 17, 2014