From left: Dean A. Elwell and Hon. William G. Young
Hon. William G. Young has been a trial judge for 46 years. Dean A. Elwell, Complex Commercial Litigation Section Council member and Judge Young’s former law clerk, sat down with him to discuss the role of judges as legal teachers, shepherds and decision-makers.
Below is a summary of the question-and-answer session with Judge Young.
Editor’s Note: This article is the first in a series of judicial interviews led by the Complex
Commercial Litigation Section Council. In this series, judges share personal thoughts, not official statements of their respective courts, on topics of interest to litigators around the commonwealth.
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ELWELL: You have criticized certain aspects of modern business litigation, such as the overuse of summary judgment, the related decline in jury trials, and the overabundance of mandatory consumer arbitration agreements. At the same time, you readily acknowledge that you are obliged to apply statutes, regulations and precedent. How do you balance these criticisms and obligations in a way that educates the public while answering only the questions put before you?
JUDGE YOUNG: I try to follow Judge Keeton’s perspective in Judging in the American Legal System. I use opinions for this purpose. If I’m asked to speak, I’ll speak. Otherwise, it’s in my opinions. There are several recent examples where I have criticized mandatory consumer arbitration agreements. But, obviously, I follow the law.
Many of my criticisms are aimed at “hacks” that lawyers use to speed things along. I’m not against summary judgment. Summary judgment has a real place. We shouldn’t be wasting time on cases that properly should be resolved by summary judgment. But summary judgment is not the only way to speed things along. Routinely, if someone files a motion for a preliminary injunction, I collapse the motion with trial on the merits, and that really works — you really get to the merits. The second thing is the case stated, brought on by cross-motions for summary judgment. In a case stated, you get a full written opinion, and then it’s over.
ELWELL: How would you respond if the bar said that it’s the plaintiff’s job — not your job — to move a case toward trial?
JUDGE YOUNG: That’s the whole history of the development of civil procedure over the time that I’ve been privileged to be a judge. When I started on the Superior Court in 1978, this is what we all believed: a case starts as the plaintiff’s case, gets developed as the plaintiff’s case, and gets tried as the plaintiff’s case. The court must be responsive to the plaintiff. But the truth is that the judge is not simply a sideline player. The parties have alternative dispute resolution mechanisms available to them, and our voluntary mediation program has been very successful. That means when a case is filed, I presume they want a trial. My job is to get them a trial. In this regard I quote Judge Owen Panner of the U.S. District Court for the District of Oregon: “There’s not too much to this judging business, Bill. You find out what cases you have. You get them to trial as soon as you reasonably can. You try cases the best you know how. You decide what you need to decide as fairly as you can — and you keep moving on.”
ELWELL: You often say you’re reaching out for justice in every case. How has the administration of justice evolved since you became a judge?
JUDGE YOUNG: It may be my own myopia, but some people will tell you that I haven’t changed that much. I’m still always trying to do it better. If I can think of a better technique, I will adopt it. In the criminal context, I’m a judge who served pre-guidelines, through 17 years of mandatory guidelines, and then back to genuinely advisory guidelines.
To the premise of your question, I came to this court so proud. My professors were judges here. The best trial lawyers I knew were judges here. Very few of those people are still here. Having said that, and this strikes me because I am the age that I am, I’m just as excited about the court today. Our newer colleagues are wonderful people. I do think about what are the best techniques for what we do, and because I’m satisfied with the way I’ve made changes incrementally, I haven’t changed that much. You get pretty much what you’ve always gotten. I am fascinated by what my colleagues are doing, and many of them do it with the same spirit of a state court judge that I try to keep with me.
ELWELL: Does the administration of justice change based on your audience, be it experienced counsel, pro se litigants or law students, or based on whether the case is civil or criminal in nature?
JUDGE YOUNG: I will give credit to our staff, who have always said that we treat all cases the same. That is, no one gets special treatment, and everyone gets the best. It’s not like here is a big case, here is a neat case, here is a notorious case. We’ll treat it just like any other case. But you’re asking a more perceptive question. With a pro se litigant, I’m at pains to explain everything and always trying to convey that I’m not your lawyer, here’s what we’re doing, and here’s why. If I don’t think the law is with them, I will say so, and I will tell them how they can challenge that. So yes, it changes when I’m dealing with counsel. I think I treat all counsel the same, though I have said how wise it is to let the person who actually worked up the motion argue it. Sometimes I can tell when the lawyer who actually wrote the motion wants to pull the other lawyer back down and say something. In those instances, I feel like saying something, but I never do. I think it’s more respectful to let them figure that out.
ELWELL: Before becoming a federal judge, you worked for Gov. Francis Sargent and then the Superior Court. What lessons did you learn first from working for the executive about the proper role of the judiciary and second from the state courts about the proper role of the federal courts?
JUDGE YOUNG: We’ll deal first with the topic of Gov. Sargent. I want to be very clear. I think his record is an outstanding record, and he made it, not me. I’m very, very proud of him. He had great respect for the judiciary. At the time, there was this idea that you could have part-time judges. That didn’t work for a variety of reasons. There were stories about part-time judges who had clients in private practice, and then, when they appeared in another court, there were comments from the bench to the effect of “there’s only one judge in this courtroom, and it’s me.”
The great thing that I learned from serving the executive is encapsulated in this story. I was an associate before leaving for public service. My very fine firm questioned why I would want to leave the good, challenging legal work that I had for a 9-to-5 government job. Then when I got over there, they questioned whether all that time I had spent under the books and green eyeshades meant I could handle this real action — these are real people now — this is governing!
The truth is that they were both terribly wrong. It’s intensely hard to govern. There’s that joke, not mine, “the amazing thing is not that the trains run on time but that they run at all.” You’ve got the union contracts and just the sheer complexities of a modern society, the tension between individual rights and liberties and the needs of the collective good. All those things, the aspirations of our society, get played out in government. Unfortunately, those who devote themselves and make that career choice over many years sometimes come to think that the private bar is less concerned about that. And that’s not true. I mean that’s truly not true. One of the reasons we have survived as a democracy is a private bar devoted, truly devoted, to their clients against the will of the moment, whether they’re representing polluters, or representing the other, being immigrants or people of color, or those whose rights are not being vindicated by society. It is enormously challenging.
As for what I learned from my time in the Superior Court, that’s where I learned to be a judge. I have enormous respect for the Business Litigation Session, which was long after my time. I’m just a Superior Court justice translated over here. Also, the Superior Court is such a wonderful, collegial body. It’s bigger than it was when I was there, but they have been well served by their chief justices and are now well served by their chief justices. The fact that they are able to deliver the quality of justice that they do throughout the commonwealth is remarkable. They joke about me, “well, he’s down in the Taj Mahal,” but there’s some truth to that. They don’t have two law clerks, much less five; they can’t even think in those terms. And yet, the quality of justice is very high. I loved my time as a justice of the Superior Court.
ELWELL: You often invite judges from abroad to sit with you during proceedings. What is a memorable observation they shared with you and how did it affect your view of our legal system?
JUDGE YOUNG: Well, the most fundamental is their introduction to our jury system. They would candidly share their experiences with trying to replicate it and the problems they had doing so. Others have been fascinated by our electronic filing system. It’s true that we take our legal system as it is, and we have to follow it, just as they have to follow theirs. But their problems aren’t that different from ours. Their societies are somewhat different, but we have so much to learn from them. Patent litigation in Japan, for example, is vastly cheaper than it is here.
Let me end with this. What’s the value added of the judicial person, the Article III judge, the one, the judge? I think it’s two things, and I’ve always thought it’s two things, and they’re equally important. One, I really believe I am giving the most to society when I am out there presiding over a trial. Our jury trials really are the gold standard of dispute resolution, and they are as close as humanity could come to minimizing the differences between wealth and the lack thereof, to giving everyone a fair shot. And the other thing is sentencing offenders. Our system is not perfect. Mandatory guidelines are not the way to go. And yet it is appropriate that publicly, the sanction of society ought be declared by a judicial representative, not by the executive, but one truly independent of the executive. Everything else we do as judges can be delegated. Supervised, of course, but delegated. What’s uniquely judicial is trying, especially with juries. Teaching the law to juries but also instructing them to find facts. We haven’t figured out a better way than telling someone to be neutral, be impartial, keep your mind suspended, follow the law, and do the best you can. With that, our adversary system really does work.
Dean A. Elwell is an associate at the Boston office of McCarter & English, LLP. As a member of the Business Litigation group, Elwell practices complex commercial litigation and white-collar criminal defense.