View from the Bench

by Judge Mitchell Kaplan

Voice of the Judiciary

I was appointed an associate justice of the Superior Court just before my 59th birthday, after having practiced law for about thirty-one years.  It still feels as if I was just appointed, but, in fact, I am completing my third year on the bench.  From the time I began my tenure as a judge, like every other new judge who practiced law for a number of years, I was frequently asked what surprised me most about the view of the courtroom from my new vantage point.  I tried to provide answers that were thoughtful, or, sometimes at cocktail parties, humorous (not too originally, I told the story of objecting to a question during my first trial and then, with some embarrassment, sustaining myself), but I think my comments were for the most part trite and not particularly insightful.  Writing this piece on the third anniversary of my appointment forces me to be more reflective.

My experience with a case I presided over for only a few days very soon after my appointment is a good place to start. My first formal three-month assignment was to a civil session in Suffolk.  Late Thursday afternoon of my first week, I was handed a motion for a temporary restraining order:  a financial institution was seeking to restrain the commissioner of a state agency from revoking its license to operate without an administrative hearing.  According to the plaintiff, this would create havoc for many borrowers with loan commitments and cause its many employees to lose their jobs.  I took the bench.  Only the plaintiff’s lawyers were present.  I inquired whether the Attorney General’s office had been notified and learned that it had, but plaintiff’s counsel reported that he had been told that no assistant AG would appear that afternoon.  I told the lawyers that I would conduct a hearing the next morning at10:00o’clock and they should tell counsel for the agency that I expected the agency’s attorneys to be present. That made me feel like a judge:  I had just expressed an expectation that would certainly be treated like an order.  I tried not to let it go to my head.

It then dawned on me that I had never dealt with this agency, or the statutes and regulations that governed it, when I was in practice.  I had the plaintiff’s memorandum in support of its motion, but nothing from the agency.  I had the evening to learn enough about the law to conduct a hearing the next day.  As I have come to understand since that early experience, while sometimes I have time to ask for advice from a colleague or occasionally have access to a law clerk, mostly there is just me.  While I understood the solitariness of being a judge in the abstract before I was one, the reality of it takes some getting used to.  You prepare yourself to decide the case, and then decide it, on your own.

I have also learned that, although I thought that I had pretty broad experience handling different types of civil matters, the jurisdiction of the Superior Court is so immense that I am constantly confronting cases involving substantive law with which I have had little or no experience.  I harbored no illusions about my limited experience on the criminal side.  Therefore, from a practical perspective, I have come to be exceptionally grateful for concise, well-organized memoranda that highlight the critical case law, statutes and regulations that I need to be familiar with to decide the case.  I now understand that many of those times when I asked for leave to file a thirty or forty page brief, because I just could not explain it all to the judge in twenty pages, I was making a mistake.  There is seldom time to read every case that touches on the subject before a hearing.  And being directed to adverse authority, no doubt along with a sound argument as to why it does not control in this instance, is very helpful, and I think helps burnish the credibility of the advocate.

While I am on that subject, I already have amnesia on how I argued the close cases as a lawyer, but I am really appreciative when a lawyer acknowledges that the question that I must decide is a close one and then points out why I should come out on her/his side.  Too often even really good lawyers argue that the answer to the disputed question is clear, beyond any real doubt.  I may not know the right answer, but even I can figure out that the question is hard.

Returning to the motion for a restraining order, I took the bench on Friday morning for the hearing.  The courtroom was now full of lawyers representing all interested parties, including assistant attorneys general and general counsel for the agency.  Both sides made lucid and compelling arguments.  As I sat there looking down from my new perch, I asked myself:  will the first order that I enter as a judge be to enjoin the Commonwealth from exercising its executive authority?   I literally began to perspire.  I hoped that it was not visible from counsel table.  The power and the responsibility of my new position were suddenly very real (and this before I ever had to sentence a defendant).   As I worried over the case, and what I was going to do, I recalled something one of my former partners and mentors said when I told him that I was going to be a judge.

He said that we had spent decades working hard to achieve the best result we could for our clients, but I was now going to be working hard to reach the right decision.  That was, and still is, a surprisingly calming precept.  The responsibility is awesome, but, in the end, you prepare and listen and then can take comfort in having done the best that you can to reach what you believe is the right result.  Besides, if you make a mistake the appeals court can correct it.  I have found that I really don’t like being reversed, but it isn’t the same as losing the client or the fee, if you lose the case.

So, after the argument on the injunction was over, as the parties waited expectantly, I announced my decision: I was taking the motion under advisement.  I did, however, commit to having a decision on Monday morning.  I wrote a memorandum of decision over the weekend and spent more time worrying where the commas went than I have since found a trial judge generally has time to do.  When I arrived in my chambers on Monday, there was a young associate from the plaintiff’s law firm waiting to pick up the opinion.  (He reminded me of me thirty-plus years ago.)  I had enjoined the agency, although it was likely only a Phyrric victory as it was based on a failure to provide the plaintiff an opportunity to be heard before its license was revoked.

I then learned another thing about judging: I don’t know what happened next.  I know that my decision was not appealed, as I would have received notice of that, but I don’t know what happened to the plaintiff, or its borrowers, or its employees.  I had played my part in this drama and had to turn to the next case.  It was frustrating.  As a lawyer, generally, I seldom had more than a half dozen cases that were really active at any time.  I knew everything about them:  facts, law, witnesses, etc.  They were like relations that often stayed around for years.  As a judge, especially when sitting in a civil session, I could touch twenty-five or thirty cases in a week.  I try to understand them sufficiently to decide that which is before me, but many I will never see again.  I should have thought more about that phenomenon when I was practicing law.  Except perhaps during trials, we judges do not live with cases the way lawyers do.

So not only do I find myself handling many files that I had not looked at previously, I am constantly trying to learn new law.  It is challenging, and sometimes frustrating, but it is also fun and exceptionally rewarding.

More than anything, I have learned that this is really a great job.

Mitchell Kaplan is a justice of the Superior Court.  He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.



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