The changing face of the judiciary

When Loretta Rush was named chief justice of the Indiana Supreme Court in August, Indiana hit a milestone. For the first time, all of our state’s appellate courts were being led by women. Indiana Lawyer recently invited Indiana Chief Justice Loretta Rush, Indiana Court of Appeals Chief Judge Nancy Vaidik, Indiana Tax Judge Martha Wentworth and Chief Judge Robyn Moberly of the U.S. District Court for the Southern District of Indiana’s Bankruptcy Court to discuss their career paths as well as the opportunities and challenges today’s courts and lawyers face. While our spirited, 70-minute roundtable narrative required editing, a full version of the conversation can be found online at www.theindianalawyer.com/judicialroundtable2014.
 

INDIANA LAWYER STAFF: The legal community’s experienced a unique moment in 2014 with women stepping into top leadership posts, or already in top leadership posts, in both our state and federal courts. Clearly, glass ceilings have been broken. Do you feel like young women in the legal practice are still encountering prejudices or discrimination?

CHIEF JUDGE NANCY VAIDIK: Clearly, in the law firm, big law firm field, they are still. I think the National Association of Women Lawyers just did a survey earlier this year and only 17 percent of … equity partners in law firms are females, and so there is really still a glass ceiling when it comes to firms, big law firms.

JUDGE MARTHA WENTWORTH: It’s better. When I started practicing in 1990, you could count on one hand the number of partners in law firms that were women and the same in accounting firms. It has taken more than a decade to improve that number, but it has improved. I think there is still a glass ceiling because you tend to want to be with people who are like you, and unless we get a lot of women up in the upper echelons of business and law and all of the other people that use law firms, we’re going to have, still, a struggle. But we’re not alone, anyone different will have a struggle.

CHIEF JUDGE ROBYN MOBERLY: Maybe I’m overly optimistic about attitudes. My sense is that men have adopted some of the family roles that used to strictly fall with the women, but, nonetheless, I think there’s just some realities that when you’re at child-bearing age that’s also the time in your career where you otherwise would be stepping on the gas. I don’t know how you address that. And there are responsibilities that women have that men don’t have in their lives right now. I think that’s slowly moving, but there’s just some realities that make it difficult to build and to network and to attract clients. It’s hard if you’ve got two little babies at home to be out digging up clients.

CHIEF JUSTICE LORETTA RUSH: I have a little bit more positive spin. I started practicing in the early ’80s. I was an associate, then a partner while I had kids, and I was elected on the trial court bench. When I look around now I think it’s improved by leaps and bounds. You know, we all teach or go and present at law schools. We see 40, 50 percent of the students are (women). When I see litigants come and argue in my court, a lot are women, so I think we’ve made great inroads, and I think being talented and hard working, whether you’re a man or a woman, is going to pay off.

I think more diversity within the profession and more diversity on the bench is important. If we’re going to have trust in a judiciary, we need to look like the litigants that come before us. When I look at who’s making partner and the gains from 30 years ago, it was rough. I mean 31, 32 years ago trying a jury case, even going to a small county sometimes and showing up ready to go or having your client meet you for the first time and seeing that you’re a 25-year-old female, so I’m now very optimistic. Just the four of us sitting around here today and when I look out on the landscape, I think there are major changes ahead.
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IL STAFF: What is your advice to young lawyers who are just entering the profession? It’s kind of a difficult time in the legal profession right now and they’re looking at fairly significant challenges, economic and otherwise.
CHIEF JUDGE MOBERLY: I meet frequently with young lawyers starting out and one of my kids is still a young lawyer. There are two pieces of advice I usually impart to them. One is careers are rarely linear, they are usually sort of a zigzag and it’s unpredictable when opportunities will come, so keep an open mind and always prepare yourself for the opportunity that might present itself to you. And the other thing in terms of young folks who are hanging out a shingle is to be involved in things that you otherwise like to do. If you don’t like to golf, there’s no point in taking up golf to meet people. But if you love swimming, you love sailing, there are clubs for everything and if you really enjoy it anyway you won’t be wasting your time. You’ll meet people, and just meeting people and exposing yourself to new people is where business comes from.

CHIEF JUDGE VAIDIK: I’d say the same thing, be open and flexible. The young lawyer might not get their dream job the first time around and it might not be a job that they even think that they might have liked originally, but be open and flexible. Once you then get into that job, Robyn’s absolutely right, you never realize where you’re going to end up. None of us here at this table realized that we would end up in the positions that we’re in. And the other thing is, I think there’s this thought now among young lawyers: It’s in vogue to have this work/life balance and that’s really important, but on the other hand, when you start out, you have to have face time. You have to put the work in.
JUDGE WENTWORTH: There’s a saying that says the harder I work, the luckier I am. Advice I always give is get involved in the bar associations so that you have colleagues. They will serve you the rest of your career, even if you don’t do the same type of law. It’s great to have people that can support you and be mentors to you.
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IL STAFF: We’re here today because women are holding key positions in the courts and this is the first time we’ve had four women in these leadership positions at the same time, but it’s still a basically homogenous group. When you look back on your own careers, education and society, what do you think has to change to bring more people of color and people of different economic backgrounds into the profession?

CHIEF JUSTICE RUSH: One of the things that I asked to take over from Chief Justice (Randall) Shepard is (Indiana Continuing Legal Education Opportunity), which is actively recruiting attorneys of color. We’re really trying to go back even to high school saying that we have financial assistance, we have sort of a pre-law school, six-week program to get them ready. Since the 1990s when Chief Justice Shepard started it, we have doubled the amount of minority lawyers, so we’re doing it slowly, but we’re doing it because sometimes you have to look at students coming from nontraditional backgrounds. We sort of pound the pavement to get the applicants we get right now. I’m hoping that that will increase. The Legislature has devoted about $900,000 yearly to the ICLEO program. Judge (Rudolph) Pyle on the Court of Appeals is an ICLEO alumnus. We have attorneys and judges kind of coming up through the ranks right now. So it doesn’t just happen, we have to really kind of make it happen.

CHIEF JUDGE VAIDIK: Someone has to mentor people and we all have an obligation to be mentoring people who are more diverse to say, “Here, you can do this, there’s room for you here. In fact, we encourage you to be here because we want you to be part of our judicial system.” Not only do we mentor these young lawyers, we hire them afterward.
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IL STAFF: Maintaining civility is one of the topics that is always paramount with bar associations and the courts, but it seems like Indiana judges and lawyers get along fairly well. Is that your perspective and, if so, what could other states learn from us? I receive the “Michigan Lawyers Weekly” email, and it seems like there are a lot of stories involving judges just going at each other.

CHIEF JUDGE VAIDIK: But they’re elected judges … on the appellate bench, at least, and there are party politics and it gets nasty sometimes. We don’t have that, at least on the appellate level.

CHIEF JUDGE MOBERLY: We are intentionally collegial in the federal bench here and all of the judges in the building get together. Justice Rush has joined us before for lunch once a month and one of us hosts the other judges in the building. We do a lot of things together intentionally to strengthen the relationships between us because that’s really valuable. I’ve been on an elected bench for a very long time (Moberly served in Marion Superior Court) and it is difficult when there are competing pressures outside your job. For some people I think it strains their relationships and that’s really unfortunate.

CHIEF JUSTICE RUSH: There are just five of us on my court, we’d better get along. We spend every Thursday together and discuss case after case after case, so I think we are very aware of collegiality and we’re aware of civility with regard to starting with us, the bench. We have litigants come in, we’ve got our questions ready and they may be tough questions, but we go to great extremes not to get personal or to put down because I remember when I was a lawyer and then a trial court judge – you look to your appellate bench. You want that example, but I don’t know if it’s necessarily (because of) the merit selection.

JUDGE WENTWORTH: The bench is just stunningly professional in Indiana and so much more so than – well, should I name him? Posner. Thank heaven that everyone here, the court, the other appellate courts, have included me because I am a one-judge court, I have no colleagues that are anything like me. Yet, I’ve needed to have people to talk to and understand “how do you do things” to understand if I’m doing them the same way.

The other side is civility and civility for a judge is we are seen by the public by the written word, and other things as well. So having been on the other side of the bench I know how sensitive folks are about what we write and how we write. The very small, little adjectives or adverbs we choose to make part of our opinions sometimes can be very hurtful, so I’m very aware of that. I don’t probably always call (parties) out as much as I should. Nonetheless, I think that I am very aware and I think that most of us that do writing are very aware of treating the people, the litigants and the attorneys that come before us with great civility.
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IL STAFF: As you know, in the “Indiana Lawyer Daily” we write about all of the opinions issued by the appellate courts, so we are reading quite a few of those. Every so often, when a decision is overturned or a dissent written, the judge can be rather harsh in the assessment of the trial court or another appellate judge’s decision making. As a judge is that something you have to be thick-skinned about and learn to take, and is that something that you all are aware of when writing?

CHIEF JUDGE VAIDIK: There’s no question about it, we know it. I’ve been a trial court judge, I’ve been reversed by the Supreme Court and I will be reversed again by the Supreme Court. We don’t make our decision based on, “I don’t want to reverse somebody,” but we do it in a respectful way and in a way that it’s a teaching point so people don’t do this again, so that it’s not only for that particular trial court judge but other people as well to say, “This is the new norm, this is what we’ll be doing in the future.” It’s important to be respectful to trial court judges when you’re reversing them and also to appellate court judges. And on the other hand, too, you know, this is tough work. Trial court work is very, very tough work. These trial court judges are making decisions in a nanosecond sometimes and when they have good, thoughtful opinions and when they go that extra mile, I always try to let people know in my opinion that this court did an excellent job.

CHIEF JUSTICE RUSH: We have five sets of eyes on everything, so there are times after I circulate (an opinion) to the four chambers and I’ll get a note from, maybe, Justice (Robert) Rucker that “You may want to change a couple of those words in this paragraph,” and I thought, “He’s just a consummate gentleman that I work with.” So we pull each other in. Sometimes, when you write, the words take on new meaning or people pick up on a certain thing, so it’s nice, different from being a trial court judge, that I’ve got four people and we work on each other’s opinions.

JUDGE WENTWORTH: There is a time when we have to be honest, though, and if somebody really crosses a line somewhere, I would hope that we would be honest about that and speak out. That’s so rare.
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IL STAFF: You’ve talked about maybe editing yourself a little bit professionally in your opinions. When you’re out in the public, do you find you’re having to censor what you say because you’re a judge?

CHIEF JUSTICE RUSH: Anything you say, people hear it times 10. I have a dry sense of humor. You just have to watch it because you say, “I saw somebody … ,” and you’ll tease them and they’re like, “Oh, can you believe that?” So, yes, I think you do censor. I think it’s expected. You have to be an example on that, and you have to realize that even from the bench. My kids have come in and watched hearings and they go, “Oh, Mom, you’re so mean,” and I go, “I’m just asking a tough question. This is a question I’ve looked at.” So you need to be cognizant of the fact that people are listening.

JUDGE WENTWORTH: Maybe that’s why so many of us teach, because teaching is a different venue. You don’t really tell your opinions but you get to verbalize more on each side of a question and talk more freely because it’s an educational setting. But anything else we are in a microscope.

CHIEF JUSTICE RUSH: But I do think we need to be approachable. I do think we need to be candid. I think we need to be open and transparent, so that’s the flipside of that.

CHIEF JUDGE MOBERLY: My husband and I, because he’s a lawyer also, we don’t have a lot of friendships with people who aren’t lawyers because we just don’t meet people who aren’t lawyers. We have a core group of four other lawyer couples and we are probably unvarnished, or I am unvarnished about my work environment before and now with this core group. It doesn’t go anywhere. It’s nice to talk to somebody other than your husband sometimes about things, but outside of that, I wouldn’t criticize a judge. There are a lot of things like that that I wouldn’t consider doing, but I can’t say those words have never passed my lips. I would be disingenuous if I said that.
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IL STAFF: Judge Moberly, I’d like to pick up on what you said about career paths not being linear. At what point did you each decide you wanted to be a judge?

CHIEF JUDGE MOBERLY: I’ll tell you kind of a funny story. When I was practicing law, I’d sent a friend to a lawyer because she needed a divorce and she erroneously later reported to me that this lawyer was going to run for judge, a female lawyer, and I thought “Uhm, well, if she can do it, I can do it, she’s no better known.” So I set about very intentionally getting involved in politics and going through a program called “The Lugar Series” which mentors women to be on appointed or elected positions. So I kind of tell people in a way this is all built on a lie because this woman wasn’t ever running for judge, but it launched my judicial career and I feel so lucky because of it. It was hard for me, and I don’t know if as young women it was for you all or not, to express ambition publicly, to have the boldness to say, “I want to be a judge.” I thought people would look at me and go, “Are ya kidding me?” It took a while for me to develop that, I think. You all probably knew from when you were born.

CHIEF JUDGE VAIDIK: Oh, no, no. I started out as a litigator and I was in a courtroom every day. I really respected the judges that were before me. I thought I could never do this, and then the longer that I was in the courtroom and the more that I did this, I thought, “You know, I can do this.” I decided one day when I was in front of a judge that I didn’t think had a great demeanor that I would run against him, and the rest is history. Then, when I was on the trial court bench I had no idea that I’d ever think about being an appellate court judge. There was a fellow trial court judge, Sandy Brook, who (also became) a Court of Appeals judge. We were prosecutors in different counties but prosecutors at the same time, city attorneys at the same time, and trial court judges at the same time. He was from South Bend, I was from Valparaiso, we’d meet in LaPorte County. We’d talk about what we wanted to do in the future and we decided that we wanted to both be on the Court of Appeals. We then investigated how it is that we could do this and we’d meet together every three months to talk about what steps were we taking to get on to this bench.

CHIEF JUSTICE RUSH: I hadn’t thought about it. I was a litigator like Nancy and spent most of my days in courtrooms. I did a lot of pro bono with children. I worked with women at the women’s shelter with regard to domestic violence issues, and it was actually the pro bono work that got a group to come to me and say, “We have some challenges in our juvenile court right now.” I remember thinking, “Well, I don’t know that area, I’ve just done it some, I’ve taken some court-appointed assignments,” but I took it. Robyn and I have talked about this. That’s the beauty of our profession: You can take your skill-set and apply it in different areas of the law. I didn’t say, “I want to be a judge” or I didn’t think about it, and then it was the same thing with regard to the appellate bench. I mean it was just sort of a couple of events happened in 2012, there had been three openings in my court (Indiana Supreme Court), this was the third opening. I hadn’t applied for the other ones and I thought I should apply.

I think some of it is timing, you know, if you’re the right person at that time. We all know that there are very qualified people. We know that we were at the right place probably at the right time.

JUDGE WENTWORTH: And then there’s me that spent 13 years not practicing law and I got to be a judge. It’s amazing that I’m a judge, but it’s even more amazing that I am an attorney because at 15, I told my parents I wanted to be a lawyer and they patted me on the head and said, “You’ll be a teacher or a nurse.” I went and got a teaching degree, started my own business, got married and had two children, and never lost the bug to want to be a lawyer. Then I became enamored of tax planning in my business, so I went back intentionally to law school to become a federal tax attorney. My first job was clerking for my predecessor (Judge Thomas Fisher).

He called me and said, “I need one of my former clerks to write something in the newspaper, I’m going to retire.” We wrote something up from his former clerks, and then they would say, “Are you going to put your hat in the ring?” and I thought, “Gosh, could I?” I had just lost my best friend to a brain disease. I had no intention of doing anything to disrupt my life, but when one of my friends called and said, “Well, so-and-so is going to try to get at that,” and I didn’t think that that person would make a very good judge, I thought “Well, I will never forgive myself if I don’t just put my hat in the ring.”
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IL STAFF: Since you’ve been in your leadership role on the court, is there a particular task or duty that, good or bad, you were surprised fell to you?

JUDGE WENTWORTH: Budget. Every two years you’ve got to trek over and ask for money from the Legislature, which means you have to hobnob with these people who are elected, and I didn’t realize that I had to do that, and it was very frightening. I try to do my homework first and then I go and I’m friendly and try to be informative through that, but it was frightening and I didn’t realize I was going to have to be political at all.

CHIEF JUDGE VAIDIK: I’m used to building consensus with groups of three on our decisions. So two of us would meet and we’d work together to try to have one opinion, and now all of a sudden it’s 15 and we’re administering the court collegially, sharing power, and we need consensus. So I didn’t realize the amount of time that it would take to go to my colleagues to build consensus.
 

Indiana Tax Judge Martha Wentworth (left) and Indiana Chief Justice Loretta Rush share a laugh during a roundtable discussion on their career paths, the courts and the legal community. (IL Photo/Eric Learned)

CHIEF JUDGE MOBERLY: I can’t say that there’s anything that surprised me about being chief judge because I knew I would be for quite a while. So I was sort of in training for a long time, but the one thing that’s kind of been a challenge, and I know you (Rush) in particular do this even more than I do, is giving speeches.

When I was president of the Indiana Judges Association, you speak at every robing and every retirement and lots of other occasions. If it’s on the topic it’s one thing, but when it is an occasion that is important to somebody, I just feel huge pressure to say something meaningful or memorable.

CHIEF JUSTICE RUSH: Of course, she had me speak at hers, yes, so you dumped that on me, right?

CHIEF JUDGE MOBERLY: And that was the wisest decision I’ve made on the bench!

CHIEF JUSTICE RUSH: We have 400 trial courts. You’ve got 500 judicial officers. The Supreme Court agencies have almost 200 employees. We do attorney discipline, judicial discipline. So we really have a big part in the administration of justice and it’s so important that that part be there for the opinions and the case writing and the rest to go out, but it’s a big enterprise. The administrative responsibilities for a justice are a lot. I remember Justice Rucker saying probably he spent 40 percent of his time on administrative, and that’s not uncommon.
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IL STAFF: How much of your time as chief?

CHIEF JUSTICE RUSH: Oh, right now it’s about 80 percent administrative and 80 percent legal writing [laughter]. I’ve got budget hearings. Our budget’s about $145 million. We are looking at implementing some new technologies. When I came to the bench, I went to vote on my first case in 2012 and I hadn’t seen the AS/400, the DOS-based green screen. That’s our technology. And just taking cases home, the only way you can carry cases out of the Statehouse are in the cloth grocery bags. That north door, there’s a wind issue and I’ve been stuck, literally stuck, with two grocery bags of transfer briefs going out the door. And I remember the head of the budget committee came by and goes, “What are you doing?” I said, “We need technology.”

CHIEF JUDGE MOBERLY: We can work from home as if we are at the office. The interface in the federal government is so great. I can sit at home on my computer and it is just as fast as if I’m at the office. And it is my desktop at the office. It is amazing and it’s fully electronic.

CHIEF JUSTICE RUSH: Oh, Robyn, bragging again about the federal system.
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IL STAFF: Let’s talk a little bit about caseloads. There’s a push this year in the Legislature with some counties seeking magistrates to help handle the caseloads. Is your opinion the caseloads are increasing in state courts or is this still an effort to relieve overworked courts?

CHIEF JUSTICE RUSH: It’s an ongoing issue because it may not be just the volume, but it’s the type of issues that come before the court. When you see more and more specialty courts coming up and the time it takes, you look at implementing evidence-based decision-making, criminal code reform, the cases are much more intense than before and they are requiring more work by the judicial officers. Some of these judges, even if they’ve got a judicial officer, there’s nowhere to put the judicial officer, and it’s not just about caseloads. I got a call from a trial court judge last month saying, “We’re out of paper, my county (has no money),” or “I’ve got a drug court program and I have no funding for drug screens.” We don’t want to get to where Kentucky was, where it closed their court system down one day a month for a while, but it’s tight. It’s very tight with regard to counties paying utilities, footing the bill for probation, footing the bill for indigent counsel, which are all important.

The ABA last year declared that it’s their No. 1 priority, and for me as chief making sure that we have a well-funded, efficient judiciary so that we can have fair and open courts and accessible justice is huge.

JUDGE WENTWORTH: And I can only speak to a teeny piece of that with my hat on as Pro Bono Commission chair, and that is there’s a crisis in pro se litigation and it’s clogging the trial courts. The Supreme Court has several committees and organizations that are trying to directly affect it. We get all the IOLTA funds that go toward volunteer attorneys, but we’re continually trying to improve volunteerism to help pro se so that people have representation, but it is slower and harder for trial court judges when it’s a pro se litigant.

CHIEF JUSTICE RUSH: We travel the state and we have district meetings where we meet with all the trial court judges, the five of us. I had my first go-round last year and we’re doing it again in a couple of months, and we hear from all of the trial court judges.

They talk about the (budget) crunch. They’ll talk about what methamphetamines are doing in some of the rural communities. “It’s taking our resources, 70 percent of the people that appear before me are without an attorney.” The amount of time it takes for a judge when you’ve got a pro se litigant trying to navigate the waters is hard, so keeping our ear to the ground and listening, and the relationship and trust that we build with the trial court is huge.
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IL STAFF: Wow, the number that you mentioned, 70 percent, the judges said 70 percent of the people are pro se?

CHIEF JUSTICE RUSH: If you throw out small claims, if you take out the small claims and have just the civil cases, I think the snapshot that we showed was close to 40 percent of every case.
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IL STAFF: That’s still surprisingly high.

CHIEF JUDGE MOBERLY: Not all of it is indigent. A lot of people choose to be pro se who could otherwise choose to hire an attorney for their own personal reasons, and they’re free to do that, choose to represent themselves.

CHIEF JUSTICE RUSH: You’re seeing more and more of that.

CHIEF JUDGE MOBERLY: So taking a snapshot of pro se is real informative, but it’s not equivalent to indigent pro se.

JUDGE WENTWORTH: Some people want to do it themselves, and they don’t think that they should have to pay someone else to do it.

CHIEF JUDGE VAIDIK: And it’s not only on the trial court level. We just did our statistics for last year, 24 percent of our cases have a pro se litigant.

CHIEF JUSTICE RUSH: We have a lot in our court as well.

JUDGE WENTWORTH: We have many pro se even in the Tax Court. I would say that few of them are indigent.
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IL STAFF: Last question. There’s been an ongoing debate regarding not-for-publication (NFP)versus for publication opinions. NFP you can’t cite, for publication you can. There was recently a push by the IndyBar to have NFPs be citable and that was rejected. If NFPs can’t be cited, why spend so much time on them?

CHIEF JUDGE VAIDIK: There’re two reasons that you write an opinion at the appellate level. One is to resolve the dispute between the parties; the other is for future direction as to the law. The second part of the job takes a lot of work. And so if you think about 24 percent of our cases are brought by pro se litigants … In many, many cases we can’t rely on the research, and we’re not to do the research for people. So you have all of these cases here, and we have to triage. What’s going to be for pub and what’s going to be not-for-pub, and the ones that are for pub we do that extra bit of work to make sure that it speaks to future cases. But that doesn’t mean that we shouldn’t be working on those cases that are telling people why it is they won or lost. We hope we never get to that point, and I think that’s part of the reason that my court has been so united against not making every decision for publication, because if we do, then what we’re going to have to do on some of those cases are just say “Affirmed,” just like they do in other states.
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IL STAFF: So why do you think that a lot of attorneys want to be able to cite NFP opinions?

CHIEF JUDGE VAIDIK: Frustration, because they’re doing all of their research and they find what they think is the perfect case, which is a noncitable case, and say, “Oh, my goodness, we want to be able to use this and we’re not allowed to do that.” And it’s not that they can’t cite the reasoning, they just can’t say, “This is how you ruled in ‘State vs. Jones.’”•