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Bar News - May 14, 2010

Retired Judges Popular as Private Arbitrators


If youíre a lawyer who has stood before an arbitration panel in New Hampshire, chances are good that you stood before a familiar face. Thatís because many former NH judges these days are hiring themselves out as private arbitrators when they retire from the bench.

"Virtually every case Iíve arbitrated in New Hampshire has had lawyers that have stood before me in the court," said retired Superior Court Judge Bruce Mohl. "As a judge in this state you get to know most of the people in practice."

Budget cuts have made bringing a civil case to court more difficult and expensive, advocates of arbitration say, plus thereís the advantage of privacy in a private forum. While the American Arbitration Association (triple-A) is a well-known national player in arbitration services, retired judges offering services on their own, or together through Resolution Now, a private arbitration firm established by NH attorney Thomas Richards several months ago, are making inroads in NH.

Resolution Now lists seven retired NH judges, six from the superior court, on its panel of arbitrators. Many also serve on the AAA panel, along with a number of NH trial attorneys. Several retired judges also offer their services on their own, including Robert Morrill and retired Supreme Court Justice Richard Galway.

Judge Robert Morrill, who retired from the Superior Court bench three years ago, says that working in private arbitration is a natural step for a former judge, and his experience offers certain advantages.

As a former judge, he says, he knows the law and also how to act on it. "Many lawyers are as bright as Ė or brighter than Ė judges, but in my experience, lawyers have a harder time making a decision," said Morrill. "I think judges are better at pushing cases along. Thatís our job."

Many of the NH judges who retired before the mandatory age of 70 continue to assist the court system serving as senior justices in the courts, and even those retired judges over 70 are frequently tapped by the court system to serve as chairs of medical malpractice screening panels.

From Courtrooms to Conference Rooms

But many of these judges are becoming more comfortable with rendering decisions in conference rooms rather than courtrooms.

Mohl, who has 20 years of Superior Court judicial experience, says that the experience brought to the table by himself and other colleagues involved in private arbitration is a great asset.

"Obviously we bring a lot to the mix. I think, most importantly," he said, "we give parties a confidence in the decision."

Richards says he created Resolution Now to offer a local, quicker and less expensive option to litigants than national ADR programs such as the American Arbitration Association (AAA). Richards, and some of the arbitrators privately acknowledge that while AAA is faster and cheaper in many cases than going to court, it can be undercut by a local provider.

A 2007 article by Inside Counsel, a magazine for in-house corporate attorneys, said it takes nearly 300 days from arbitration filing to judgment and award for the typical case handled by the AAA. While the AAAís median completion time was less than half the average for similar cases filed in federal court, thatís quite a long time for a process intended to provide an efficient alternative to a crowded court docket.

"The AAA rules have become very cumbersome and time consuming," says Richards. "They are not dissimilar from the federal courtís rules. Theyíre of course less stringent than the federal court, but theyíre still cumbersome," said Richards. "Iím attempting to step back and restructure the process, to simplify it and to expedite it."

Another Advantage: Scheduling Easier

Richards says that another advantage of using retired judges is that they are easier to schedule.

"I can, in almost any case, within 24-hours, schedule and hear the arbitration. I have far more flexibility and more freedom," says Richards, who was NHBA president from 1989 to 1990. "People can get all of the advantages of arbitration without the bureaucracy."

Arbitration: An Overview

A form of binding alternative dispute resolution, arbitration is a popular form of ADR in the business community. In many business contracts, especially consumer contracts for credit cards, car loans, employment agreements, etc., a clause calls for arbitration as the means of dispute resolution. Normally, the clause is a boilerplate paragraph that says disputes will be resolved by and according to the rules of the American Arbitration Association.

Arbitration is especially suited to cases where time is of the essence, special expertise is necessary, or where privacy is important for at least one of the parties.

Morrill says a key advantage of arbitration is the ability for parties to choose not only the arbitrator, but also the trial date.

"If you have a significant civil case with witnesses and experts, itís not uncommon within the court system to have the date changed three days before the trial. Thatís very expensive," he said. "With arbitration, you pick the date and the case will go when scheduled. Itís much more efficient."

Judge Mohl echoes that point, saying that arbitration can certainly offer more flexibility and control.

"On a court docket, we focus a lot on keeping the docket clear, so we have to keep things moving. There are also a lot of things that break up your day." said Mohl. "With arbitration, we can give 100 percent attention [to that matter]. If the parties want a quick hearing, we can give them a quick hearing. If they want to have a long trial, we let them do more extensive discovery and give them a lot of freedom."

If trends continue, the arbitrators of Resolution Now will likely see their business continue to increase, especially as the Legislature considers further cuts to the Judicial Branch budget. Further budget cuts, said Morrill, will only make getting a trial harder for those in need of dispute resolution.

"Justice Broderick wants the courts to be open to all new types of cases, but as we decrease judge availability, more and more people are going to turn to private arbitration," Morrill said. "I like to think weíre helping the courts because weíre taking some of these cases off the dockets."

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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