Bar News - July 15, 2015
Court News: Tech-Savvy Judge Larry Smukler Retiring
By: Dan Wise
NH Superior Court Judge Larry Smukler is retiring, but he will keep his robe and his trusty laptop handy for when he presides next spring over what could be one of the highest-profile jury trials in recent New Hampshire history.
Judge Larry Smukler is known as an independent thinker and for being one of the few NH judges to always have a laptop on the bench with him.
Smukler, 65, is taking senior status on Aug. 1, but is scheduled to hear the trial of Nathaniel Kibby, who is accused of kidnapping a North Conway teenager and holding her captive over a nine-month period. According to published reports, the Gorham man faces a 200-count indictment, including 150 charges of sexual assault.
Smukler initially came to the Superior Court with little experience as a trial lawyer in private practice. Although he held a prominent position as chair of the NH Public Utilities Commission (PUC), he was unaccustomed to the unpredictability of jury trials and unfamiliar with criminal law. Fortunately, one of his first judicial assignments was in Hillsborough County, where he had plenty of senior colleagues.
“In that courthouse were Linda Dalianis, Walter Murphy, Jim Barry, Harold Perkins and Bill Groff – you could not ask for a better set of teachers,” Smukler said during a recent interview.
Comparing his roles as presiding officer of the PUC and in the superior court, Smukler said some, but not all, of the expertise was transferable. “In both positions, you are a fact-finder – that’s not substantially different, but it is procedurally different. You are still presiding, dealing with a very specific set of facts, bringing evidence in…” But there were early bumps when he just did not know what to do. “On the trial court bench, people throw things at you that you have never encountered,” he said. “I was able to take a break and ask for advice on how to handle particular situations.”
Now, 23 years later, Smukler is comfortable and in command of his courtroom. Over the years, he developed a reputation as an independent thinker and was outspoken in opposing certain court initiatives. He parted ways with some fellow judges and many attorneys in opposing the use of attorney-conducted voir dire until its use in civil cases was authorized by statute. Smukler says he is always willing to pose questions lawyers want to ask, but thinks having attorneys ask the questions wastes time. He also believes jurors take questions more seriously when they come from the judge.
Smukler, who still speaks with the accent of a Philadelphian, came to New Hampshire in the early 1980s with expertise in energy law. After a stint as a researcher for the Energy Law Institute at the Pierce Law Center. He then joined the PUC as general counsel, and a few years later he switched over to the Attorney General’s office, where he eventually became chief of the Civil Bureau.
Smukler became involved in a very high-profile case, serving as lead negotiator for the state when Public Service of New Hampshire, burdened by the costs of the controversial Seabrook nuclear reactor, sought bankruptcy protection. Smukler’s job was to try to bring about a deal that would satisfy debtors, avoid overburdening ratepayers, and avert bankruptcy for the utility.
Smukler then was appointed chair of the PUC where he presided until his appointment in 1992 as a Superior Court judge. In addition to sitting in Nashua, he also spent time in other counties, including an assignment for many years in Belknap County, where he rejoined Judge Perkins. “Harry was so important to my judicial career. He was my friend, my colleague, my mentor,” Smukler says.
After more than 20 years on the bench, Smukler has become the one providing advice to newer judges and is known as the most tech-savvy judge in the state courts. For many years, Smukler has taken his laptop to the bench, using it for note-taking and reviewing documents he may have uploaded himself. He presided over an entirely electronic case in 2003 – a suit against tobacco companies that involved a large volume of electronic evidence. He also chaired a task force that developed guidelines for public access to electronic court records.
NH Superior Court Chief Justice Tina Nadeau praises Smukler for his candor. “What I admire most about working with Judge Smukler is his willingness to engage in the honest, robust exchange of ideas. On the court, he encouraged healthy debate on important policy matters, which helped produce sound decisions regarding many court initiatives, including the NH e-Court project.”
In his retirement, Smukler does not expect to play a significant role in the rollout of e-Court. Smukler believes that although attorneys will not have difficulty adapting to e-filing, the state courts may find it challenging to understand the nuances of evidence presented electronically. For example, he asks, “How do you maintain the sanctity of the jury’s deliberations while guiding them in accessing the evidence?”
Technology changes quickly, including in the field of evidence display and presentation. Rather than the court installing its own equipment, Smukler has advocated for flexibility in allowing attorneys to bring in the latest equipment.
As for handling high-profile trials, Smukler pauses to think about how best to sum up his approach. “All cases, whether high profile or not, should be treated the same. I always try to explain what I am doing. I want to provide an intellectually honest explanation. The press does not always get it right, but I try,” he says, shrugging.
While he will continue to hear cases as a senior judge, Smukler has lined up a very different pursuit in retirement, revealing he has been accepted into a master of fine arts program for photography at Maine Media College, starting next fall.