Bar News - December 17, 2010
John Broderick Exits Court, Ready to Lead at UNH Law
By: Dan Wise
John Broderick sees our time as an "an impatient century." That adjective might be used to describe him, too, but he would probably disagree. Itís not about him, he would say, itís about the circumstances we are in.
Interviewed a few days before his last day as Chief Justice of the NH Supreme Court (Nov. 30, 2010) and a month after the announcement of his appointment as President and Dean of the University of New Hampshire School of Law, Broderick reflected on his legacy as the leader of the judicial branch for the past six years. He also discussed his continuing interest in urging NHís legal institutions to embrace change, and his advice on effective trial advocacy (see sidebar).
At age 63, Broderickís departure from the court was voluntary, and he has resisted calling it "retirement." He leaves without regret. While he will miss the small group of fellow justices and Court staff with whom he has worked daily, and the judicial branch workforce he led, he appears more than ready to be freed from the confining role of a judge. He wonít sit as a substitute justice in the future, so the last time he presided over the court was the last time he would wear judicial robes. Hanging up the robe for good wonít be that hard. "I spent lots of time without one," he says.
He joins the UNH School of Law (formerly Franklin Pierce Law Center) on Jan. 3, 2011, and will officially succeed Dean John Hutson at the end of that month.
Challenge of Taking Over as Dean
"There are lots of moving parts that werenít there before," he said of the schoolís recent affiliation with the state university after 37 years as a freestanding law school. "I am looking forward to the opportunity to work with the UNH president and the deans, as well as our law school faculty, staff and students. Itís a phenomenal opportunity." He is asked how long he might stay. "I signed a contract for six years. They said they wanted a minimum commitment of five years and I wanted them to appreciate that I wasnít going there for the minimum commitment. So we decided on six years Ė that seems to be an amount of time
in which you can actually make something happen."
Broderickís Advice for Advocates
Known as an enthusiastic questioner during oral argument, former Chief Justice John T. Broderick, Jr., a noted trial lawyer who was appointed directly to the appellate bench in 1995, offered his perspective on effective oral advocacy. (The following are paraphrased with some direct quotes as indicated.)
The basic advice is: "Less is more and candor is key."
"The lawyers who do the best are those who can put on a 3x5 card what their case is about," Broderick advises.
Be clear on the remedy. What are you asking for, what is essential in what you seek from the court? Are you seeking to change the law or asking the Court to apply the law?
Limit the issues in your brief. Take more risk in selecting your issues. Donít argue every issue you have; that approach makes each issue less important, and weakens your overall position.
View oral argument as a mutual search. To the judges, the appellate process isnít adversarial, so view it as they do: as a search for the best answer. The justicesí questions are part of a conversation in which they are engaging you, as the lawyer and expert in the case, in a collaborative search for answers.
"I used to think oral argument was a closing argument to five people in robes," Broderick recalls of his years as a trial lawyer. "When [the justices] interrupted me, I saw it as an intrusion. Now I would welcome the questions. I know that it is the essence of what you are there for." Justicesí questions offer an opportunity for attorneys to correct wrong impressions and to bolster or counter positions on issues the judges are considering.
"The role of a dean in these new times is evolving rapidly. While a dean has to view scholarship as job one, which I will, much of what a dean is called upon to do day-to-day is not narrowly related to scholarship. I am confident I can work closely with the faculty while also fulfilling the broader mission the deanship requires."
As with the court system, he feels that there is an imperative for the law school to adapt to changing realities. "There are 197 accredited law schools in the Unites States Ė in a few years, some of them will be gone and it will be those that donít adapt," he warns. "As strong as UNH Law School is in the intellectual property area, I believe it can enhance its footprint. The school has to have a broader reach and more resources."
The UNH affiliation will help, spurring the development of joint degrees and more interdisciplinary studies. The affiliation also will assist in making law school more affordable, including the possible creation of a three-and-three option for UNH students who then matriculate at UNH Law after the third year. (The school also recently announced it will offer a tuition discount for UNH students and NH residents.)
Broderick talks about having experience in crafting a vision, which the law school will need in these "impatient" times. He adds: "Impatience is transferable."
Moving to the law school is a chance for him to take his concerns about equal access to justice and bringing the legal profession up to the warp speed of the 21st century to a new setting. "A lot of the issues that really excited me are transferable. The law school will be a new world, but not a foreign one."
Facets of the Webster Scholar program, a collaboration between the Court, the law school and the Board of Bar Examiners, with the help of the NHBA, are exportable to the law school curriculum. The trail-blazing program has attracted national attention, but it is expensive and heavily dependent on volunteer resources. He senses that for many students, the third year of law school is unfocused and represents a missed opportunity. "Most lawyers are in practices of 10 lawyers or fewer, and there is a need for new lawyers to be more practice-ready than ever before," Broderick says. Perhaps students could assemble packages of courses in specific practice areas, and even include some business courses to help them better prepare for the realities of operating a law firm.
How Court Service Changed Him
"I know less than I thought I knew coming in. I believe I am less judgmental and more open to other peopleís ideas, and I realize how fragile are the institutions of the profession that I thought were so immutable. "The things that seemed so permanent and immutable to me are the most in need of change," he says.
He believes that he has made headway in creating a unified identity for the court system so that it acts "like a single organization instead of 40 different sites."
Other milestones that he takes pride in:
- Helping to foster creation and expansion of the Family Division;
- Creation of the Office of Mediation & Arbitration;
- Successful passage of legislation to create a business docket for the superior court;
- Establishment and funding for the NH Lawyers Assistance Program;
- Creation of the NH Supreme Court Society, with particular attention on its efforts to improve civic education.
Broderick believes he has made progress in persuading his judicial branch colleagues to recognize the inevitability of change.
The Judicial Branch Innovation Commission, due to make its report to the Court this month, is proposing a number of restructuring ideas to make its operations more efficient, save money and improve services. Broderick knows that legislators, struggling with a mountainous deficit, are eager to see immediate savings, but investments will be required. He also hopes that the efficiencies can be implemented without "creating artificial pain for those who work here."
But he notes that the stark reality of the court system is that "75 percent of our costs are in salaries and benefits Ė that is not a 21st century model." He is banking on another reality, a demographic one, to avoid undue pain to the people who have worked for the court system. He says that 30 percent of non-judicial staff will be eligible to retire in the next five years.
The work of the Judicial Branchís Innovation Commission puts the courts in the forefront of change compared to the rest of state government and other court systems, Broderick says. The embrace of organizational change will allow the court to take a much different stance with the legislature in the upcoming session.
"I didnít want us to come to the legislature with no new ideas," he says. "We are doing things that others in state government havenít done Ė but that being said, I donít want to see our branch of government Ďpenalizedí by having to absorb the brunt of spending cuts through drastic workforce cuts made Ďpossibleí by its efficiency recommendations."
"When I first took this job, it was very easy to believe itís about you," he muses. "I have come to see that it is what your job allows you to do. I am not indispensable. Iím part of a continuum and that realization makes it easier to leave this place. When I hang up my robe, the system will continue without interruption."
"The only mistake is to think that a job canít happen without you. I will walk out of this courthouse and the next day it will continue to operate."