Lawyers with Judges Getting Coffee: Hon. Karen F. Green

Issue May/June 2020 June 2020
Complex Commercial Litigation Section Review
Article Picture
From left: Massachusetts Superior Court Justice Karen F. Green and Jonathan D. Plaut

Massachusetts Superior Court Justice Karen F. Green sat down for coffee recently with Jonathan Plaut, a long-standing member of the Massachusetts Bar Association, to discuss her views from the bench after having spent many years at the bar. Prior to her judicial appointment, Judge Green was a senior partner at Wilmer Cutler Pickering Hale and Dorr LLP’s Boston office, where she focused her practice on complex business litigation, including the defense of white-collar criminal and False Claims Act litigation. The following are excerpts from their 90-minute conversation.

PLAUT: Thank you for sitting down with us.

JUDGE GREEN: My pleasure.

PLAUT: How is the perspective from the bench different from the perspective at the bar?

JUDGE GREEN: The perspective of the courtroom is very different from the bench than from the bar. From the bench, you can see everyone in the courtroom — lawyers, litigants, jurors, court officers and witnesses. You also can see what kinds of behavior works, and what turns jurors off. Lawyers are trained to advocate, which often involves a lot of talking. As a judge, it’s my job to observe and to listen, as opposed to speak. That’s not to say that I never speak, but that my job primarily is to listen and then to decide. I also have to be careful not to think out loud.

The best lawyers understand and solve their clients’ problems. Judges resolve disputes when the lawyers are unable to do so.

PLAUT: Do you have any tips for the practitioner as to what works and what doesn’t?

JUDGE GREEN: When advocating for a client, be as reasonable as you possibly can. Lawyers who take unreasonable positions and/or overpromise risk losing credibility. Juries and judges are hyper-aware of everything lawyers do and say in the courtroom.

I don’t have any pet peeves, but if I did, it would be lawyers who appear in court less than fully prepared, including by failing to confer in advance with counsel for the other parties.

PLAUT: What made you want to leave the bar for the bench?

JUDGE GREEN: First, I very much enjoyed practicing law. The longer I practiced, though, the more I came to appreciate that I’ve always been happiest when my work has been both challenging and socially useful. Surviving cancer and a one-year fellowship at Harvard’s Advanced Leadership Initiative only strengthened my desire to be of more use. One of the things that attracted me to the bench is its mission: to do justice with dignity and speed. There’s something pretty wonderful about having that as one’s mission.

PLAUT: Can you share with us some of the ways you approach your role on the bench?

JUDGE GREEN: I strive to perform my role on the bench with equanimity and to treat every person who appears before me with respect. My sense is that when I do so, I inevitably learn more about the parties and their dispute and am in a better position to resolve it. My approach has been influenced by the examples of Judge W. Arthur Garrity Jr., for whom I clerked after law school, and of retired Judge Paul Chernoff, who is the epitome of equanimity.

PLAUT: What are the key elements to making good judicial decisions?

JUDGE GREEN: There’s no question in my mind that the best decisions are made only after all parties have been given a full and fair opportunity to be heard. It’s the genius of due process.

PLAUT: You worked on numerous criminal cases while at the bar. Is dismissing a case on the basis of the exclusionary rule hard to do?

JUDGE GREEN: No. I believe there’s a huge public benefit to ensuring that the rule of law applies equally to everyone and that everyone plays by the same rules. And I say that as the daughter of a police officer, whom I suspect would tell you the same thing, if asked.

PLAUT: Do you believe that judges should be elected or appointed?

JUDGE GREEN: Generally, I believe that judges should be appointed and not elected to ensure judicial independence. The skills needed to be a good judge are not the same as those needed to run for public office. As an example, elected officials need to make political compromises to garner public support. Judges need to have the courage to apply the law equally regardless of the potential personal consequences.

PLAUT: In moving from the bench to the bar, did you have to let go of some professional friendships?

JUDGE GREEN: There is a bit of isolation as a judge. My close friends are still my friends, but I am very conscious of the canons of judicial ethics, including the one that requires impartiality in decision making.

PLAUT: What kinds of interactions do you have with other members of the bench?

JUDGE GREEN: The Superior Court bench is a very collegial bench and I enjoy and appreciate the friendship of my colleagues. Chief Justice Fabricant places a huge emphasis on judicial education, collaboration and peer observation, despite the fact that we work in different courtrooms. In some courthouses, judges meet over lunch — it’s not fancy, and most of us bring our own lunches. While we consult with each other, we also understand that the presiding judge is ultimately responsible for deciding the cases before him or her. My husband is chief justice of the Appeals Court, so between us we have developed friendships with many other judges over the years. My husband is recused from all of my cases.

PLAUT: Are you concerned when one of your decisions is appealed?

JUDGE GREEN: Not really. As a judge, I know it’s not about me, but about correctly deciding the parties’ case. I’m glad they have a right of appeal. If I make a mistake, I hope the Appeals Court or the SJC will correct it — that’s the reason we have appellate courts.

PLAUT: Regarding caseload, how do you feel about the federal system where one judge keeps a case from inception to judgment?

JUDGE GREEN: I think it’s beneficial for one judge to keep a case from inception to conclusion, if only to ensure familiarity with its facts and consistency in its management over time. As a general matter, I’d also prefer to be responsible for a case from the time it is filed, but that may be because I practiced primarily within the federal courts before I became a judge.

PLAUT: How do you balance your workload between hearing cases and writing opinions?

JUDGE GREEN: There’s a constant inflow of cases on a session’s docket. On weekdays, I generally preside over trials in the morning and hear motions and prepare for the next day’s hearings in the afternoon, which means I do most of my writing in the evening and on weekends. To keep up with the workload, I try to state the reasons for rulings as succinctly as I can.

PLAUT: Can we expect to see e-filing become more widely adopted in Massachusetts courts?

JUDGE GREEN: The Superior Court is certainly moving in that direction. E-filing will require more resources than the court currently has, but I am a big fan of it, based on experience in the federal system. I still remember that when the federal court switched to e-filing, some worried that it would be a disaster, but that’s not what happened — lawyers, clients, judges and clerks made the transition and are now very accustomed to e-filing. It’s faster, easier, less expensive and more efficient than paper filing. It obviously also decreases the amount of office space needed and is better for the environment.

PLAUT: Do you have tips on discovery practice?

JUDGE GREEN: First, be strategic. Think up front about what information you will actually need to prove your client’s claim or defense at trial and then ask for that information in discovery. Avoid costly disputes over discovery that are unlikely to affect the case’s outcome. Second, confer early with opposing counsel on electronic search terms. Third, if you claim a privilege for one or more documents, prepare and produce a privilege log. Lastly, confer with opposing counsel, as required by Superior Court Rule 9C, in a good-faith effort to resolve discovery disputes before filing any motion to compel.

PLAUT: What advice would you have for a young lawyer who wants to become a judge?

JUDGE GREEN: Look for opportunities to try cases and to make decisions. You will find them in a wide variety of settings.

PLAUT: Thank you for your time.

JUDGE GREEN: You’re very welcome.

Jonathan D. Plaut drinks coffee and practices law at Cohan Rasnick Plaut LLP, Contact Plaut here.