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Bar News - July 19, 2017

Leaving the Bench, Leaving Her Mark: A Conversation with Justice Carol Ann Conboy


Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.Ē

Ė John Adams
Second President of the United States

The quote (at right) by John Adams, Americaís second president, is Justice Carol Ann Conboyís favorite.

ďI think it demonstrates the tension between a lawyerís obligation to his or her client and the obligation to the court,Ē she explained during a recent interview at the NH Supreme Court. ďPart of the oath lawyers take is fidelity to the court, and what that means is a recognition of the lawyerís obligation broadly to the profession, to the court, and to abide by the ethical rules.Ē

That fidelity, and the importance of reserving judgement during fact-gathering, became a theme of the conversation with Conboy, who recently reached the mandatory retirement age for New Hampshire judges, requiring her to step down from the bench.

The far-reaching conversation, which ranged from the justiceís perspectives on the future of the legal profession to her love for Baroque composers, has been edited for length and readability.

NH Supreme Court Justice Carol Ann Conboy, who retired this month talks about life and the law during a recent interview at the Court.
Photo by Kristen Senz

NH Supreme Court Chief Justice Linda Steward Dalianis places the black robe on Justice Carol Ann Conboy at Conboyís swearing in to the Court. (File photo)

Bar News: Why is this your favorite quote?

Justice Carol Ann Conboy: When I talk to new lawyers, they often say, Iím devastated when I lose a trial. Itís so difficult to take the loss. I tell them they didnít create the facts. Just because you win a case doesnít mean you were brilliant, and just because you lost a case does not mean you were incompetent, because there is this thing called the facts.

Very talented lawyers can take the facts, apply the law to the facts in a persuasive way Ė thatís what lawyers train to do. It doesnít mean we can change the facts. As a lawyer and as a judge, the more you search for the facts before you apply the law, it seems to me, the closer you get to justice. For lawyers, that may actually mean a loss.

I love this comment by President Adams, that our passions canít alter the state of the facts and the evidence. As committed as you may be to your clientís cause, and no matter how zealous you may be, the facts are the facts, and in fact, bumping up against your zealous advocacy are ethical constraints. Thatís why I love this quote, because when I talk about this concept, I hope that it conveys, especially to young lawyers, that they canít lose confidence in themselves or their advocacy. Just keep plugging away and represent your clients with the greatest skill you have.

BN: The legal profession and the legal market are changing. It seems to be putting a lot of pressure on attorneys, as more ethical complaints are filed and new rules are added. What do you think is happening?

CC: Iím looking at it from a distance, but it seems to me that unhappy clients are now more willing to make a complaint about lawyers, and that may reflect whatís going on in our society at large. If thereís a loss, the client is unhappy and reaching to point blame, and sometimes the complaints are against the trial judge or the court.

What Iíve observed is that citizens may be more willing to say, if I lost, itís got to be somebody elseís fault. Itís hard to know, but I wonder about that. I wonder about the ability of people to acknowledge that maybe they had a role in the conflict. Thatís why I get back to, the facts are stubborn things. As an appellate judge, I think about that all the time.

The challenge for me, both as a trial judge but certainly as an appellate judge, is this: I need to suspend my judgement on any case until Iím comfortable that I have the facts in mind Ė all the facts that are available from the trial record Ė and that I have an understanding of the applicable law, before I apply the law to the facts and make my judgement.

Thatís easier said than done, because as may be evident in todayís world, oftentimes people are willing to make judgements on very few facts. They hear fact A, B, and C, and too often, it seems to me, people are willing to draw the ultimate conclusion about the issue. So, trial judges and appellate judges are challenged to withhold judgement until that fact-gathering and law-gathering is complete, and then you do the hard work of the analysis before coming up with the ultimate conclusion, and the five of us on the Supreme Court, do that every day.

BN: What do you make of all the talk about ďfake newsĒ and the distortion of facts? Are true facts becoming endangered?

CC: Thatís a complicated question. I wish I had all the answers, but I think at the heart of it is the need for educating our young people. I recall when I was in junior high school reading about propaganda. I learned about what we now call fake news. I recall very distinctly learning that everything you read in the paper isnít necessarily true, and there are people who will take some facts and spin them to distort the true picture. I donít know whether schools today have the time to do that kind of work with studentsÖ I worry sometimes that weíre depriving our students of a bigger view of the world.

Any humanities course is going to expose students to different points of view and teach them about critical thinking. To read something, look at it, and say does that make sense to me? Do I have enough facts to make a judgement about what this particular writer is trying to persuade me to believe? I think thatís part of the solution to the problem.

Reasonable people can disagree, and you can disagree with great respect for the other side, and thatís what weíve got to teach our young people. Itís okay to disagree. Itís okay to be passionate about your position, but it must be done with rationality and respect for the other side.

BN: You took an unusual path to the law that included some time as a teacher and in the US Air Force. Can you talk about your background and how it has influenced you as a lawyer and judge?

CC: So much of what has happened to me was based on opportunity and finding a way to eventually get to where I wanted to be, given the circumstances of my life. I remember that I signed my picture to my sixth-grade teacher, and I said, ďI will be a lawyer someday.Ē I actually wrote that on my little sixth-grade picture that we gave to our favorite teachers. But I came from a circumstance where none of my family had ever been to college. There was no money, and so I had to find a way to finance my own education, and I did.

I had always wanted to go to law school. I finished college at the University of Connecticut and decided to go into the Air Force and was in the Air Force for a couple of years. Thatís where I met my husband. Eventually he and I landed in New Hampshire, and we have three sons. I remember talking to my husband one night, I said I keep thinking about law school, but this is going to be impossible. We lived in Webster, and I didnít think I could manage taking a bus to Boston, so I had to put it off. I was a teacher for a few years, I worked for the State of New Hampshire program on alcohol and drug abuse for a few years, and then what happened was the law school opened, Franklin Pierce Law Center, now the University of New Hampshire School of Law, and I could not have been more excited. I couldnít go right away, because we had to save money. I was in the third class up on Mountain Road, and I just felt so grateful finally to have the chance to go to law school.

How did that affect how I practiced law? I can only say that it seems to me that if you are exposed to many circumstances in life, that canít help but influence how you interact with your clients, perhaps gives you in some ways a better understanding of your clientís position and maybe affects how you go about problem-solving. Iíve been in many employment situations and have seen workplace conflict, and maybe that influenced ultimately my interest in employment law, in which I developed a kind of specialty at the McLane firm over time. I think it helped me as a lawyer to be able to give advice either to employers on workplace conflict or to individuals who felt mistreated in the workplace, either through discrimination or some other problem.

BN: As a judge and a former English teacher, you know the value of clear and compelling writing. What do you think about the state of legal writing today?

CC: (Laughs) My colleagues tease me because I am a stickler about grammar, but itís not simply about grammar. Writing is a form of communication, and of course, my expectation as a former English teacher, is that weíre going to have the semicolons properly placed, that weíre not going to have dangling participles, but those are just the details. Good writing is good communication, and the challenge always is to say what you mean clearly. Legal writing has a bad rap because itís complicated, and lawyers sometimes feel the necessity to sprinkle through the writing Latin phrases, and it makes it difficult for the average person to read and understand.

Our challenge is to use vocabulary which sometimes we have to use, because certain phrases in the law have a broad meaning and thereís no other way to say it. Res judicata and stare decisis have full meanings, and sometimes we just have to use that. But that doesnít mean we have to use sentences that are too long, too confusing.

I donít hold myself out as the perfect writer. I find myself sometimes reading decisions that I wrote three or four years ago and saying, ďOh no, what a terrible sentence that was,Ē and Iím embarrassed and my face is turning red in the quiet of my office, because Iím saying to myself, ďWhy did you write that?Ē but sometimes the press of business results in that.

Writing is very hard work. You cannot simply pick up a Dictaphone or your cell phone and dictate a finished product. If you do that, either you are extraordinarily talented, or youíre just not going to end up with a work product that really conveys what youíre trying to say. Writing is continual editing.

I must say that I do get frustrated by the writing samples that I receive from law students who want to be law clerks. Theyíre entering a profession where theyíre going to be the wordsmiths of our society. Theyíre going to be the experts on how to convey principles with words. And I get letters or writing samples that unfortunately miss that goal by quite a bit.

BN: Do you think good writing can be taught? Or is it something inherent?

CC: I think in some ways it is inherent, because there are just some students who have a facility with words, but there are tools that can be taught to people who donít come by it naturally. One of the tools is reading. You need to read a lot to be a good writer, and then pay attention to good writing. Look at it and try to understand why you loved that novel. Think about it. You can use the tools of good writers in your own writing. It can be taught from the standpoint that good teachers can identify that, reveal it to students, and get them to practice.

Legal writing is not creative writing. There should not be any surprise endings. Youíve got to be upfront. Youíve got to say what you need to say right at the beginning, and often that is the most persuasive legal writing. It takes a shift in thinking about conveying ideas.

BN: Do you think good, persuasive writing can impact the outcome of a case?

CC: I donít think I can generalize and say that effective writing can affect the outcome. But what it can affect is the analysis of the trial judge or the appellate judge, and it certainly can affect the understanding of the facts. It seems to me that good writing, as any good advocacy, presents the facts in the way that leads the recipient to the conclusion that you want the recipient to reach. Instead of screaming at the reader with bolding and underlining and saying this is the most outrageous situation anyone has ever seen. Rather than that, you start with the facts and you say, hereís what happened. If you are good at marshalling the facts, as the reader is reading, the reader may say, this is the most outrageous thing I ever heard. See the difference?

It is important to have the skills to be able to pull the relevant facts together. And whatís really challenging is to be able to throw out the irrelevant facts. Itís just as important as a writer to be able to discard facts that are not necessary.

BN: How do you arrange your work environment to maximize focus and productivity?

CC: I love classical music. Either in my office here at the court or in my home office, which I have arranged so that itís very comfortable Ė I have a recliner and a desk Ė I have classical music playing in the background all the time. I find that it allows me to block out the extraneous noise, and I can develop intense focus when I put myself in those situations.

Here at the court, I do a lot of my reading standing up. If I didnít, I would turn into a total pretzel. I have a lectern. Itís not an official standing desk. At first, it was odd to be doing intense reading standing up, but after a few weeks, that resolved itself entirely. I have a piano lamp on the lectern focusing light right on the briefs, and Iíve got room for the briefs and a legal pad Ė I take copious notes when Iím reading briefs Ė and standing allows me to keep relatively healthy, and I also work out twice a week. I think itís critical to my wellbeing, because you canít slouch when youíre standing, or if you do it really hurts, so it forces me to have good posture.

BN: What are some of the cases that stand out to you from your time on the Court?

CC: I hesitate to identify particular decisions. We get ďbigĒ cases that get a lot of publicity. People might think those are the memorable cases, but we get cases that affect peopleís lives just as dramatically as those big cases. We may have to decide relocation for children. Those are very difficult cases. They may not have a lot of paper or get a lot of publicity, but working on those cases is very challenging.

BN: What have you learned about yourself through doing this work?

CC: First of all, I learned that Iím not a machine. Iím a human being, and I can make mistakes. Iíve learned that I need to be willing to accept criticism of analysis that Iíve used in cases or conclusions that Iíve drawn. I have to acknowledge that my colleagues or lawyers who are arguing before us can be smarter than me on a particular issue.

Just because Iíve found myself at the Supreme Court doesnít mean I changed, that I became smarter, that I have all this law in my head. So, I think Iíve learned to be more flexible. I was a trial judge for 17 years, where Iím the one on the bench making the decisions, and youíve got to be confident in your ability to make quick decisions. You canít take three weeks to make an evidentiary ruling during trial.

Here, we have a different job. We have the luxury of more time, but Iím always conscious that people are out there waiting for our decisionsÖ What Iíve learned was that my colleagues can have a different view of things than I do, and in the end, their view may be better than mine.

BN: What do you think the future holds for the legal profession and issues surrounding access to justice?

CC: Iím very proud of the work that New Hampshire lawyers do for low-income people who really require pro bono assistance. But we have to make sure (and I use middle class for wont of a better term) that middle class people have access to justice. Weíre seeing more and more people appearing in court unrepresented. My hope is that the bar will continue to work on that issue and on allowing people who can pay something for legal services, but not the full market rate, to get representation at an affordable rate.

I wonder whether we ought to seriously look at limited license legal technicians. We may need to look at coming up with a class of legal professionals who can provide service in limited areas. I am watching what is going on with that in Washington State, and I would like to see a conversation develop in that area.

BN: Favorite writer and favorite composer?

CC: My favorite composer is Bach. Thatís who I listen to, and it may seem counterintuitive, because Bach is a Baroque composer, so thereís a lot going on, but I find it very soothing when Iím working to listen to Baroque composers.

I have many favorite writers. When I was an English major, I had so many. I loved American poets and American writers, especially. I just canítÖ If you press me for one, Edith Wharton wrote the novel Ethan Frome. I was very affected by that when I was in college, and I often think about the protagonistsí challenges. Itís a short book and I think in part it stands for principles like acceptance of accountability for oneís mistakes. That would be a quick read some day on the beach, or on a Sunday afternoon. Itís not a long book, but itís one that I have thought about a lot over the years. Itís a book that has affected me, but thatís not to say that I donít have interest in lots of other writers.

BN: How are you feeling about winding down your time as a judge? What are your plans?

CC: If the constitution didnít require me to leave once I reach a certain age, I think thereís a good chance I wouldíve stayed on for at least another couple of years. I really enjoy doing the work and I feel so privileged to be doing it, and Iím in very good health fortunately, but that decision has been made for me.

Iím withholding judgement as to what I want to do. Iím going to take the summer and spend time with friends and family and think about what I really want to do and how I want to spend my energies. Iím consciously resisting making those decisions right now.

You know that phrase, spending oneís time. Iím becoming increasingly aware that thereís a finite amount of time that I have to spend, and I want to spend it wisely.

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