Respected judge Allan van Gestel prepares to retire

Issue September 2005 By Andrea R. Barter, Esq.

Judge Allan van Gestel, one of the commonwealth's most respected jurists, was sworn in as a Superior Court judge in 1996. Since Oct. 2, 2000, van Gestel has been the presiding judge in the Suffolk Business Litigation Session. However, according to the Massachusetts constitution, "upon achieving 70 years of age, a judge shall be retired." Unfortunately for business litigators, van Gestel turns 70 this December.
"I don't want to be retired, but that's what the constitution says, so I don't have any choice on that," said van Gestel. "This is the best job I've ever had. The intellectual challenge is very large."
Although people think it's all just business, van Gestel points out that his court has addressed issues raised by the Gillette/P&G merger, a case of art fraud and even the negotiating power of the Atlanta Hawks. "The variety is wonderful -- you're the only one there to sort it out and make the decisions. For me, it's a wonderful, wonderful thing to do and I get paid for it! Not a lot, but I get paid," said van Gestel.
Prior to his appointment to the bench, van Gestel practiced law at Goodwin, Procter & Hoar in Boston for 35 years, specializing in civil business and environmental litigation. A graduate of Boston University School of Law and Colby College, in 1979 he was admitted as a fellow in the American College of Trial Lawyers.
Business Litigation Session
In 2000, in an effort to establish an efficient, innovative forum for the resolution of business disputes for both corporations and individuals, the Business Litigation Session in Suffolk County Superior Court was created. The goal at the time was to develop a predictable body of law governing business disputes and to provide a steady, efficient forum for the resolution of business litigation.
During van Gestel's tenure as presiding justice of the Business Litigation Session, his decisions have helped shape the law in Massachusetts concerning business disputes. Practitioners uniformly appreciate his tireless efforts to develop a considered, predicable body of law governing business litigation.
According to Rory FitzPatrick, Kirkpatrick & Lockhart Nicholson Graham, Boston, "The Business Litigation Session is one of the best innovations that we've had in the court system here in Massachusetts. It was a great idea when it was announced and has worked better than anticipated. Judge van Gestel is a major reason for its success. He's a very careful, judicious judge. He himself was a very successful practitioner in complex commercial litigation before going on the bench, so he understands it very well. He brought terrific case management skills to that session."
Van Gestel admitted that the session "has been wildly successfulÉEverybody has said they like the session, the way it's being run, the quality of the judges, the quality of the decisions coming out, predictability from consistency in the decisions and the fact the judges seem to know the law in the area."
"I don't want to sound like I'm bragging," added van Gestel. "This is not rocket science, but it does require experience in the area and requires focus and hard work. I had 35 years at Goodwin Procter. If I didn't learn something from that, I would be an utter failure."
Van Gestel "has always had the rare gift among big firm lawyers of humility. He was never impressed with himself, nor with the trappings of a large Boston firm. That has always given him an unfailing appreciation for people and their problems," said Paul F. Ware Jr., Goodwin Procter & Hoar, Boston, who worked with van Gestel at the firm for more than 20 years.
"As a judge, he has brought his legal acumen and personal discipline to bear on very complex and often nearly intractable business problems. He has no fear of taking on either difficult issues or big companies. The result has been a highly effective and very fair judge," added Ware.
But it's not just his reported decisions that make him a great judge, according to Michael Bonner, Yurko & Salvesen PC. "It's the way he handles cases in general. He thinks about the facts of the case, the parties involved, the impact that his decision will have on the parties, and he develops creative solutions to resolve the disputes."
Possible recall?
Massachusetts law allows judges who are forced into retirement by the age 70 provision to be recalled for special assignments. Although the provision is rarely used, there has been some suggestion that van Gestel may be recalled to continue his work in the Business Litigation Session, and the judge seems cautiously delighted at the prospect. "In a session like this, experience is probably as important as anythingÉThe business people are not unhappy that the judge has been around awhile and seems to know what's going on. At the same time, there hasn't been a great rush of judges saying they want to do this particular work all the time, thus the possibility of recalling me, at least for a short while," said van Gestel.
"Members of the bar have greeted that suggestion with enthusiasm and ongoing praise for the job Allan has done," said Ware.
Business Litigation Session Committee Co-chair Beth Boland, Bingham McCutchen, is more direct: "We want him there until he's 100!"
"The consensus is that we have been blessed that Judge van Gestel was sitting on the bench, was qualified, interested and that he has done the outstanding job he has. His leadership and extraordinary capabilities on the bench -- he is the glue that has made the Business Litigation Session work," said Boland. "Hopefully we will be able to utilize his services after 70. We strongly support his recall and his help in transitioning to new judges. I very much hope he is called upon to do that."
Rest and relaxation
It is clear in talking to the judge that he can't picture himself enjoying a "traditional" retirement with his wife in Rockport. He doesn't plan to sit on the porch and read. He doesn't play golf, have many hobbies or travel much. He simply cannot extricate himself from the law, and will likely remain active in private arbitration, mediation, teaching or writing.
"I don't consider this work. I'm as happy Sunday afternoon poring over briefs in anticipation of argument on Monday morning as I would be out on a sailboat. That may make me weird, I don't know, but at least I'm happy doing it," said van Gestel.

The MBA is sponsoring the Business Litigation Session Conference to review the body of case law that has come down from the Business Litigation Session in the past five years and Judge van Gestel's impact on business disputes. The conference will take place on Sept. 29 at the Radisson in Boston.