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I’m curious to know how common it is for state or federal judges to have no litigation experience and only transactional experience. To the extent it is possible, would the most likely route be to get elected or are appointments also possible?

This is just anecdotal, I don't claim any special expertise, but: barring perhaps some recent very political appointees, I have not really seen non-litigators become trial judges. I also honestly can't understand why someone who's not a litigator would want to become a trial judge - that is going to be a HUGE learning curve. The learning curve is bad enough for most first-time judges who *are* litigators, because usually they have to get up to speed on civil or criminal (whichever area they didn't do) really quickly, and it is a LOT of work. I went to an info session on "how to become a judge" once and I know in that state (where judges were appointed), being a civil or a criminal litigator made a big difference for a given appointment in that the appointers paid attention to breakdown on the bench (i.e. if there were a lot more originally criminal litigators on the bench they'd try to get some civil litigators and vice versa).

It's possible that an appellate judgeship would be a little different, but that is going to be hard core research/writing all about litigation. If you have a widespread reputation for sheer brilliance, maybe you can garner some interest, but again, I think there will be a huge preference for litigators.

To be clear, my experience is primarily in states where judges are appointed, so I have no idea really how an election would work (but I also think electing judges is a terrible idea because sure, maybe you can convince the electorate to elect a transactional lawyer to a judgeship, but that seems only to highlight why the electorate picking judges is a bad idea). It seems to me that if being a judge is a goal, why not just try to actually get some litigation experience first? I have a hard time thinking that getting litigation experience will actually be harder than getting appointed/elected a judge without litigation experience.

There's no path to becoming a federal judge with that background. 99% of federal judges were litigators before becoming federal judges, and the others were law professors. You could run for an elected state or local judgeship, but it'd be extremely difficult to get political buy-in as a non-litigator, so it seems unlikely you'd win a primary, etc. If you somehow did win, you'd be totally incompetent.

Why would anyone appoint a judge with no litigation experience? And for elected positions, I have a hard time believing any state bar association would rate a candidate as "qualified" if they had no litigation experience.

But the bigger question for me is why anyone who's been doing solely transactional work would want to be a judge in the first place.

I believe Milan Smith did mostly transactional and regulatory work in real estate and land use, as well as corporate transactional work, before he was appointed to the bench. So I guess one answer is to be the brother of a Senator?

Clytemnestra3 wrote: ↑

Sat May 30, 2020 10:28 am

I’m curious to know how common it is for state or federal judges to have no litigation experience and only transactional experience. To the extent it is possible, would the most likely route be to get elected or are appointments also possible?

Unless you are highly politically connected and get your Senator to appoint you for an opening in your state and the President agrees and nominates you, it isn’t.

How can someone who has never drafted an Answer be a judge? Or why would they want to...

You simply win the Heisman Trophy, play in the NFL, win the Rhodes Scholarship, graduate first in your class at Yale, clerk on the Supreme Court, practice M&A in Colorado, become friends with JFK and RFK, get appointed deputy AG, and get appointed to the Supreme Court. Just ask Byron White.

I believe that Justice Blackmun was also primarily a transactional attorney before his appointment to the Eighth Circuit.

I believe Robert Katzmann of the 2nd Circuit is the only one off the top of my head who became a federal judge and did not have a career in litigation. His career was characterized as being an academic, and he had at least one clerkship under his belt before going into academia.

Susan Carney on the Second Circuit, an Obama appointee, was primarily a transactional lawyer before joining the bench.

galba wrote: ↑

Sat May 30, 2020 11:07 pm

Susan Carney on the Second Circuit, an Obama appointee, was primarily a transactional lawyer before joining the bench.

From Wikipedia:

“ From 1979 until 1986, Carney was an attorney at Rogovin, Huge & Lenzner in Washington, D.C., first as an associate and later as a partner.[2] working on litigation in federal courts and providing business counsel, primarily for large nonprofit organizations. In 1986, Ms. Carney joined two other Rogovin partners to form the Washington, D.C. office of the Los Angeles-based firm of Tuttle & Taylor. She was subsequently Of Counsel to the D.C. labor law firm of Bredhoff & Kaiser, where she engaged in an appellate practice. From 1996 to 1998, Ms. Carney served as Associate General Counsel of the Peace Corps”

...?

Yeah, "primarily transactional" isn't the same as "only transactionaI with no litigation experience." Also, I think going straight to appellate is a bit easier, too, for less experienced litigators, in that you're not going to have to run a trial. Showing up for oral argument is totally different from presiding over a trial.

Beyond running in an election or having great political connections, I don't see this happening.

Don't know why everyone is confused why a transactional attorney would want to be a judge. It's not hard for me to see why litigating could sound awful but judging could sound very interesting, especially at the appellate level. They're two entirely different jobs.

Sackboy wrote: ↑

Sun May 31, 2020 1:56 pm

Beyond running in an election or having great political connections, I don't see this happening.

Don't know why everyone is confused why a transactional attorney would want to be a judge. It's not hard for me to see why litigating could sound awful but judging could sound very interesting, especially at the appellate level. They're two entirely different jobs.

I dont understand this. Judges do litigation. I can’t imagine someone not liking litigation but wanting to be a judge

I also don’t want a judge who doesn’t know the rules of civil procedure and has never drafted a pleading, responded to discovery, or written dispositive motions. Judges still do litigation....

Appellate judge positions are even harder to get and often go to experienced trial judges so that’s not really an alternative...

I feel like being a judge almost looks better if you haven't done litigation than if you have.

(I mean, that's obviously not true, there are plenty of litigators trying to be judges. But all through law school and clerking I thought, "being a judge would be pretty damn cool," and now that I've actually litigated for a stretch, I don't want to be a judge at all.)

nixy wrote: ↑

Sun May 31, 2020 7:27 pm

. . . But all through law school and clerking I thought, "being a judge would be pretty damn cool," and now that I've actually litigated for a stretch, I don't want to be a judge at all.)

This. All those annoying motions that you don't want to deal with? The judge deals with those all day long. That one time you actually had to call the judge for a deposition dispute? That happens all the time for the judge. Judges get to do some amazing, interesting things, but a lot of the time it's drudgery due to annoying lawyers.

Let's also not forget the criminal side of things. Seeing drug addicts do horrible things for their addiction, seeing the horrendeous things people do to other people, especially kids . . . it's really not worth it. It might not come up every day, but that stuff stays with you forever.

This is definitely a "grass is greener" job for many people.

I'd still totally do it. Clerking was way more fun than practice. But something like a federal trial court or state criminal trial court would be extremely tough.

I don't think a transactional lawyer would have that much trouble judging on an appellate court. People often say it's the thing that's most like law school, and I found that pretty true. But you'd be pretty clerk-reliant on procedural issues for a while, and not having litigation instincts -- just the gut-level "that seems wrong" -- seems like a net negative aside from the obvious problem of getting appointed in the first place.

nixy wrote: ↑

Sun May 31, 2020 7:27 pm

I feel like being a judge almost looks better if you haven't done litigation than if you have.

This is exactly why I think some (maybe even many) transactional folks would be interested in becoming judges despite hating litigation.

In litigation-oriented classes you write boring/awful briefs (just my opinion) and you otherwise hear about awful doc review and the low chance of every 1st chairing any sort of trial in biglaw. Maybe you've even been introduced to writing motions, and you could not like that either.

At the same time, you read opinions from legendary justices/judges all the time that can be quite interesting. Most transactional folk just probably assume that you'll get to write cool opinions most of the time and barely have to deal with shitty motions or that it'll be much better on the judge-side of things.

beepboopbeep wrote: ↑

Sun May 31, 2020 7:42 pm

I'd still totally do it. Clerking was way more fun than practice. But something like a federal trial court or state criminal trial court would be extremely tough.

Yeah, to be fair, I was thinking (but didn't say) trial court - being an appellate judge would probably be fun, assuming your court was relatively collegial and not acrimonious. But not something I'm going to have to worry about! (I can't imagine getting through the process, whether election or appointment.)

I honestly cannot imagine there is a single sitting judge in the country with a purely transactional background.

Does anyone know of one?

burritotaco wrote: ↑

Tue Jun 02, 2020 4:37 am

I honestly cannot imagine there is a single sitting judge in the country with a purely transactional background.

Does anyone know of one?

When you add local, state, and federal judges up, there are a lot of judges. Now, consider the fact that a good number of judges are elected or appointed through some level of cronyism. There is surely at least one.