Bar News - March 16, 2016
Putting Good Humor to Good Use
By: Anne Saunders
Judge David Garfunkel, with his sense of humor intact, recently retired from the NH Superior Court after six years on the bench and a decades-long legal career in New Hampshire.
Judge David Garfunkel takes his work deeply seriously, but his quick wit and sense of humor have always added enjoyment to his deliberation, both for him and those around him.
It’s one of the things NH Superior Court Judge Gillian Abramson loved about having an office next door to Garfunkel’s at the Hillsborough County North Superior Court in Manchester, where Garfunkel spent his first four years on the bench. Abramson said she knew she could vent her frustrations, at times using colorful language, without worrying he’d flinch.
But as quick as he was with a joke, Abramson observed how seriously Garfunkel took the task of making and writing decisions. “He really gave his cases a lot of analysis, a lot of thought,” she said of her former colleague, who reached the mandatory retirement age of 70 earlier this year.
Through his role as the first director of the NH Public Defender, his time in private practice and his six years on the NH Superior Court bench, Garfunkel has earned both respect and a reputation for being able to tell funny stories and recognize the irony in the everyday.
“He’s just really fun to be with,” says Cathy Green, of Utter and Green, who first met Garfunkel when he took over the fledgling NH Public Defender program in 1979.
For Garfunkel, sharing laughs with colleagues has always been a way to get past the aggravations of a difficult case or challenging parties, and return to the issue at hand. Those opportunities to vent help lawyers and judges “focus on what is true and important, get rid of the white noise and look at what the case is really about, and what’s the right thing to do for the parties,” he explains.
It’s a characteristic that has served him well throughout his career, keeping him energized about his work and endearing him to his many colleagues over the years.
Garfunkel came to New Hampshire from Philadelphia where he had worked as a public defender. While vacationing in New England, he learned from a friend that the new Public Defender program in New Hampshire was looking for a director. He was introduced to Jim Duggan and was hired for the job.
Green was one of only five lawyers on board at that time. Over the next 10 years, Garfunkel would grow the program from two offices (Manchester and Concord) to a system that provided for the criminal defense of the indigent all over the state.
“What I remember is the excitement of expanding the program,” he said. In his role, he served as litigation director, lobbyist, administrator and primary recruiter – and he surrounded himself with many talented young lawyers.
“He was a wonderful guy to work for,” says Mark Sisti. “He was very, very patient with young lawyers – I know because I was one of them.”
Green agreed. “He not only selected great lawyers, but also mentored people and really created an atmosphere for people to enjoy their jobs and feel they were contributing to the program,” she said.
Initially the Public Defender did not take homicide cases, but when Garfunkel launched a homicide defense program, he gave Sisti and Paul Twomey the reins. “He allowed us a lot of room to grow,” Sisti said. In retrospect, Sisti is amazed how much trust Garfunkel placed in him.
Those early days were exhausting and exhilarating, Garfunkel says. His young lawyers called him Chicken Little — “because everything was an emergency,” Sisti recalls. “It was hard partying and hard working, having fun and practicing law.”
But Garfunkel was determined to raise the bar for the practice of criminal defense and had little tolerance for anything that might jeopardize the program’s reputation. When a ping-pong table appeared in a back room of one of the offices – a method to cope with some late-night work sessions – Garfunkel would have none of it.
“He banished it extremely quickly,” Green recalls. “David was definitely the adult in the room.”
He also required participation in ongoing training before continuing legal education became mandatory. “He was ahead of the curve in that way,” Sisti said.
Reminded of the Chicken Little moniker, Garfunkel laughs, remembering. But he wasn’t much older than the lawyers he supervised, he said. He was, at most, 10 years their senior, often less. Still, they came to him with both litigation challenges and personal doubts, and he made a point of listening.
“The camaraderie was marvelous,” he said. The work was intense and stressful, but he encouraged the lawyers to believe in the importance of their work. “You’re ensuring the fairness of the criminal justice system,” he said, a conviction that remains with him today.
Garfunkel was also able to convince the New Hampshire Legislature of the program’s importance and, even as it grew exponentially, to demonstrate its cost-effectiveness – a reputation the program still carries.
“David was able to make them believe that what he and the Public Defender’s office did was valuable to the state,” said Mike Callahan, of Gallagher, Callahan & Gartrell, who hired Garfunkel away from the program after 10 years.
Garfunkel took the skills he’d honed as a litigator, mentor, administrator and lobbyist into private practice and became president of the firm during his 20-year tenure. In private practice, he enjoyed the diversity of cases, working with corporate clients and handling complex litigation.
And just as before, his door remained open to his colleagues when they needed someone to talk to about a difficult case.
Garfunkel was both encouraged by others and intrigued by the idea of viewing the law from a new perspective when he put his name forward to be considered for the bench.
“Some lawyers are only interested in the cases they work on; David was interested in the law,” Callahan said of what made Garfunkel a successful judge.
The dynamics of the courtroom and the different ways lawyers build a case or conduct cross-examinations continue to fascinate Garfunkel. As a judge, he loves the constant challenges. Lawyers can specialize, he said, but a judge remains a generalist. “You’re constantly switching gears.”
NH Superior Court Chief Justice Tina Nadeau says the judiciary is losing a valuable member in Garfunkel, whom she described as smart, thorough, humble, and fair. “He’s not afraid to make really tough decisions,” she said.
Nadeau and others pointed out that Garfunkel still has a lot of energy and enthusiasm for the job, despite having reached age 70, which constitutionally requires him to retire from the bench. Garfunkel says he would continue if it were permitted, but it’s not, and he knew that all along. “I’ve had a wonderful career. I’ve loved every aspect of it. I have no regrets,” he said.
For the immediate future, Garfunkel will serve as a judicial referee. Beyond that he’s considering his options, spending time at the gym and with family and, when the snow melts, looking forward to playing golf. Life without constant deadlines is a new experience, he says. But his colleagues don’t expect him to stay on the sidelines for long.
“I predict that David will not retire,” Green said. “He’ll find other ways to contribute… He’ll continue to be a force in this state.”
Anne Saunders is a freelance writer based in Concord, NH.