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Getting it right

Credit: Dan Page

A judge’s life is varied and rewarding. And a bit lonely.

In a Starbucks near Harvard Law School, on a November evening, Geoffrey C. Packard ’73 blends in easily among the latte crowd. With a red-checked flannel shirt and jeans, longish hair flopping over one eye and the relaxed demeanor of a guy who’s listened to his share of Cream albums, he looks like any number of other former-hippie-types-turned-professionals. He could pass for an aging techie, perhaps, or a gentleman carpenter.

Except that if he wanted to, Packard could insist you call him “Your Honor.” Behind his retro-rebel appearance, Judge Packard carries the authority of the Commonwealth of Massachusetts.

But Packard’s not the sort to flaunt his position. He relishes moments when nobody recognizes him as a trial judge in the Massachusetts district courts, a job he took three years ago after 30 years as a public defender in the Boston area. If there’s one thing he misses these days, it’s the camaraderie of being just another member of the bar.

“Except with my closest friends, I’m aware there’s a little bit of distance with people now,” he says, sipping a decaf coffee. “People aren’t going to call me up to go out, or drop by to shoot the breeze. Lawyers can’t be seen hanging out in judges’ chambers.” His laugh carries a slight ache of nostalgia.

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Does he enjoy his new view from the bench? He pauses.

“Mostly, yeah, I do,” he says. “And I say ‘mostly’ only because I so loved my other job.” There are many pluses: the interesting variety of cases, from criminal to landlord-tenant to unemployment and pension appeals; the intellectual challenge, even in misdemeanor trials; and, most of all, the import of making decisions that affect people in their daily lives. And he finds he’s more relaxed than he was when he was a trial lawyer.

But there are downsides. For more than three decades, counting two years at HLS in what was then called the Harvard Voluntary Defenders, Packard would return to the office after a brutal day in court to swap war stories with a close-knit team of fired-up public defenders. “It was 12 to 15 people every day, very supportive, always kicking stuff around. It was very collegial,” he muses. Packard puts his hand on his cheek, leaning on his elbow. “One thing about this job is that it’s very isolating.”

Isolation. Staggering caseloads. Stacks of paperwork to read each day. Underfunded and understaffed courts. The weighty responsibility of passing judgment on other human beings. Work that is widely misunderstood, especially in an age when “judicial activism” is a catchphrase. The world of judging carries particular burdens.

Yet Packard and others say the good far outstrips the bad. Hard data on judicial job satisfaction is difficult to come by: Neither the American Bar Association nor the American Judges Association can point to any such studies, in contrast to countless studies on lawyers’ professional satisfaction. But among the hundreds of HLS grads who serve as federal and state court judges, at least, the step up to the bench has been gratifying. They cite the enormous breadth and depth of their work; the sense of purpose, even nobility, in upholding the rule of law; the joy of working with dedicated colleagues and committed law clerks. The workload is daunting, but there’s more flexibility in their schedules now than there was in private practice.

“I love every minute of it,” says Robert J. Cordy ’74, a justice on the Massachusetts Supreme Judicial Court, whose tasks include administrative oversight of the commonwealth’s courts, outreach to schools and bar associations, and, of course, appellate review of the Bay State’s most pressing issues, including 2003’s landmark decision legalizing gay marriage, Goodridge v. Department of Public Health.

“It’s wonderful,” says Margaret M. Morrow ’74, a U.S. District Court judge for the Central District of California, despite the fact that she works much more than she did when she was a lawyer in Los Angeles immersed in bar activities, including serving as the first woman president of the State Bar of California, in 1993-94. “I’ve learned more in the last eight years than probably the 15 to 20 years before that.”

Four years ago, when he was named to the U.S. Court of Appeals for the 10th Circuit, Harris L. Hartz ’72 was so shell-shocked by how completely the job absorbed his time and energy that he wondered if he had made a mistake. Then he noticed a couple of retired judges in their 80s who came into the court on a regular basis, looking to help out, working essentially for free.

“They wanted to get assigned cases; they wanted to write opinions,” recalls Hartz, who lives in Albuquerque, N.M. “That meant a lot to me in my first couple of years. Because frankly, it was so hard, so consuming, I was not enjoying myself. I thought, If people can do it for no pay in their 80s, there must be something good about it.” Now that he’s settled in, he understands the mysterious draw of the position.

So what is it that makes judging such a great gig?

Variety Is the Spice of Judging
“There are a lot of things to like about it,” explains Catherine C. Blake ’75, a U.S. District Court judge for the District of Maryland. “Number one is the chance to help people solve the problems that brought them into court in the first place, and to try and get a fair result.”

Still, the workload can be crushing. At any point in time, Blake has about 200 open civil cases and 50 to 80 criminal cases, plus other duties. What makes it bearable–indeed, Blake calls her work “fun”–is the incredible variety.

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“I can start the day at 9 a.m. with a conference call in a product liability case and move on to a conference call in a civil rights case and move on to a sentencing in a tax fraud case, then a guilty plea in a narcotics case, and then a trial on a pregnancy discrimination case,” she says. “When we break for lunch we may have a bench meeting, or I’ll be doing administrative work, and then I’ll go back into trial. And then I may have a 4:30 committee meeting or another conference call or a pretrial conference for next week’s civil trial. And in between, I’d better be reading my mail.”

The pace and breadth are exhilarating, confirms Karen Nelson Moore ’73, who sits on the U.S. Court of Appeals for the 6th Circuit and is based in Cleveland. “The federal courts have such an array of cases,” she says. “So every day there are literally 10 or more fascinating questions in diverse areas that I’m dealing with. There’s never any time to be bored.”

This diversity is what surprised him the most about the business of judging, says Cordy, who went from managing partner at a major Boston firm to the state high court: “The thing that’s been amazing to me is the range of issues the courts deal with every year, from property disputes to major criminal cases to regulatory matters to tax cases. It’s just extraordinary.”

It comes with a high cost. “Although I knew there’d be a lot of reading–wow! Wow!” Cordy exclaims. “It’s thousands and thousands and thousands of pages every month. We hear 22 full court cases a month, which means 44 briefs, and usually reply briefs, and often amicus briefs, and the briefs are usually 40 to 50 pages, and then all the appendices.” There are also at least 80 petitions for further or direct appellate review, while the judges circulate among themselves 400 to 500 pages of draft decisions. “It’s a constant deluge of material on often complicated matters,” he says.

This is one aspect of a judge’s work that seems to be so little understood. The process of deciding the law is far more extensive and demanding than perhaps even lawyers realize.

“I think the thing that surprises law clerks the most is our fidelity to the law,” says the 10th Circuit’s Hartz. “They think, Oh, you’re appointed by a Democratic or Republican president, this is how you think and that’s how you decide things. One of my clerks last year says, ‘I don’t think anyone realizes how careful [judges] are,’ and that judges really try to get it right, for the most part. There’s an incredible amount of self-discipline that I don’t think people are aware of, with regard to the law.”

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Lisa White Hardwick ’85, who serves on the Missouri Court of Appeals, agrees. “The thing that would surprise the public the most is the amount of time we spend trying to decide cases. I think people think we already know the law or we have a bias we use to decide a case a certain way.” In reality, she says, “even though the cases are fully briefed, we still read the law and check it. We are accountable to ourselves, and we spend a lot of time doing that.”

As for allegations of judicial activism, “I don’t think it occurs nearly as much as people think,” Hardwick says. In her eyes, an activist judge–and such a person is rare, she asserts–ignores the law in favor of his or her own agenda. Cordy concurs, noting, “People use [the term] to describe judges with whom they disagree.”

At a November meeting of the Federalist Society’s National Lawyers Convention in Washington, D.C., Massachusetts Gov. Mitt Romney ’75 told the gathering that the Goodridge majority had approved gay marriage to promote their values and those of “their like-minded friends in the communities they socialize in.” Cordy, who was in the dissent in that case, declines to respond directly to Romney’s criticism but then says: “All of us ended up writing on this case. We really got into it–we read all of the literature, all of the briefs, all of the amicus briefs. We thought very long and hard on the constitutional and statutory issues. Innumerable drafts were circulated expressing views as it evolved. Looking back on it, it was really quite an extraordinary journey with my colleagues. Everybody worked very hard on it, regardless of how we ultimately came out, thinking about it and trying to put it in the right legal framework.”

The case drew enormous attention worldwide, as Cordy has found on trips to Russia as part of a court exchange program. “Every time I go, that’s pretty much the only thing people want to talk about, whether it’s Siberia or St. Petersburg or Moscow,” he says. While the case consumed the public imagination, the court had to move on. “Some folks would say, ‘Is that all you’ve been thinking about?'” He laughs. “Once it was done, it was done. We have another 180 cases to be decided.”

Sentencing defendants in criminal cases can be one of the most emotionally challenging parts of the job, particularly when the death penalty is involved. The District of Maryland carries a high number of death-penalty cases, and in 2004, Blake presided over her first one. Two young men were convicted of a Baltimore murder; in the second phase of trial, the jury decided not to impose the death penalty, and the co-defendants instead will serve life without parole.

“If the jury made the decision and said it should be the death penalty, I don’t know that I’d have had a great deal of choice. I would have had to impose it,” Blake says. She was relieved to learn in mid-December that the U.S. Department of Justice decided not to seek the death penalty in a drug, firearms and murder case over which she will preside.

When a trial includes the possibility of the ultimate sanction, she–as well as the lawyers and everyone involved–carries a heavy burden. “It magnifies the feeling of responsibility,” she says. “You have to be that much more careful and consider the issues much more seriously,” including issuing written opinions on various matters instead of ruling orally from the bench.

“One aspect of criminal cases generally, and the death-penalty cases in particular, is it can make you depressed to see the waste of human life and talent,” she adds. “Obviously, there are the victims, but also the young men in front of you that seem to have sufficient intelligence to have done something else with their lives.”

While she lauds law enforcement for doing its job, at the same time, “you wonder whether something could have made a difference somewhere along their lives,” she says. “So it can be challenging and depressing.”

Oral Argument Matters

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Most judges are quick to point out that a widely misunderstood aspect of their decision-making process is the critical role of oral argument. A good oral argument often changes the way judges analyze a case, if not the actual result, they say.

“I’ve kept statistics on how I feel going in and how I feel coming out, and about 30 percent of the time, my view will shift, from reversal to affirming the case, or something significantly different than I felt going in,” says Hardwick. Hartz finds a similar effect, noting, “I’d say that 20 to 30 percent of the time, oral argument has had a significant impact on my thinking.” On the other hand, he adds, “sometimes oral argument seems absolutely worthless.”

What makes for effective oral advocacy?

Andrew S. Effron ’75 sits on the U.S. Court of Appeals for the Armed Forces, a civilian court which reviews cases tried by military courts. He has specific advice, based on nine years’ experience on the bench, which may seem obvious yet isn’t always followed.

“Your job is not to regurgitate the brief,” he says. “You have to have a game plan in advance for figuring out the three to four points you want the judges to walk away with, and make sure you find time to make those points.”

At the same time, he emphasizes that lawyers must answer judges’ questions. “If you’re trying to make your own point, answer the question first, then get your point in.” And if you don’t know the answer, he says, “tell the judge that. It may be necessary to say, ‘I haven’t read that case. Would Your Honor like something further on that in a supplemental brief?'”

The fastest way to lose credibility, judges agree, is for lawyers to attempt to gloss over or hide law or facts that negatively affect their arguments. Lawyers should reread the record and every case cited in the briefs before stepping into court, and shouldn’t rely on just the case summary. Does that ever happen? Effron laughs, then hesitates. “People get very busy and have a lot of priorities,” he says. “I think from time to time that may happen.”

Moore says she loves oral argument because it’s a chance to learn from not only the lawyers but also the other judges on a panel. The questions her brethren ask signal issues that are troubling or significant to them, which often prompts her to take a closer look at a particular matter. It’s also the part of the job that mitigates some of the isolation of sitting alone in chambers reviewing cases, judges say.

Obviously, brief-writing is equally important. Hartz, who served on the New Mexico Court of Appeals some years ago, chuckles when recalling one particularly effective argument. “It was a state tax case, and the oral argument flipped all three of us. I told the attorney, who is a Harvard Law grad, ‘You flipped all of us.’ He says, ‘I guess that means I screwed up in the briefs.'”