Dear Fellow Bar Members,
In this Fireside Chat, I have the privilege of interviewing Chief Justice Michael Bender, who recently retired after 16 years on the Colorado Supreme Court. We are going to talk about his illustrious career, and discuss some of the lessons that he has learned over time, as well as the wisdom he has gained through his experiences. I think we can all learn something from his long and accomplished career.
Welcome, Chief Justice Bender. One of the things that has always struck me is how involved you have been in supporting and improving the legal profession and what a leader you have been for the profession, even while you were sitting on the Supreme Court. Is your drive to contribute to the legal profession simply a result of your personality and who you are, or is there something more there?
Well, it’s my personality—I enjoy dealing with other people —but it’s also a product of a strong desire I have; a deep respect for the way in which law operates in our society. I try to nourish and nurture the profession to really serve the various aspects of the broader community. As a young attorney, I realized the significance of our legal system, not just the trial and the trial process, but the ability to help and serve people in so many different ways. I felt very honored to be part of that aspect of the profession and I wanted to share that view with as many as possible.
You have had a very accomplished and amazing career. Can you summarize what it has entailed?
I was the utility infielder for about 10 years. I had two stints with the Public Defender’s Office, a short stint as a solo practitioner in private practice, and then I worked for a while for the EEOC Litigation Center, which is now defunct.
Then I went to Los Angeles for a year. I worked in the Labor Department at a large, multi-national firm—Gibson, Dunn & Crutcher. I came back to Colorado and worked in private practice for about 20 years before being appointed to the bench. Part of that time, I was partner in a small firm with one of my classmates, Larry Treece.
At the recent swearing-in of new lawyers, Judge Terry Ruckriegle told a good story for young lawyers about the importance of getting along with and respecting your adversary, and how doing so may serve you—and the profession—well down the road.
Right—after a few mistakes as a young lawyer, where I might have said something I shouldn’t have to my adversary or my opponent or even to the Court, I realized that there’s a time and a place to be aggressive, and that’s when the trial starts. And then you play by the rules and you do it as fairly as possible. But I think what’s most important is to maintain a relationship with your opponents, even if the opponent is sometimes difficult to deal with, so that in the long run, your client is better served and the system is better served.
You have to respect others’ views. You may not agree with them. You may be hired to disagree with them, but you still have to respect their rights. I’ve always tried to be as professional and as courteous as possible. In that way, the whole system gains respect.
I have noticed that often when attorneys are appointed to the bench, they withdraw from their involvement in the profession, perhaps out of fear of being seen as biased. What advice could you provide to new judges about that?
Judges are the leaders of the legal profession. They have a responsibility to continue to be active in bar associations and community activities, provided, of course, that there’s no specific conflict. Many judges are wary—and to some to extent they should be—of being socially friendly with some of their former colleagues. However, I think that the formal associations and contributions to the community are not dependent on just the social relationship, but are an indication that judges, as lawyers, have a dedication to serve their various communities. It is quite important that judges take a leadership role. They should be leaders in their courtroom, with their employees, and in their community.
What is the biggest challenge facing judges today?
The biggest challenge facing judges today is really in fundamental resources. There are many more cases. The cases are more complex. There are many, many people who are accessing justice, who don’t have a lawyer. There are many, many more people accessing justice who do not speak English. The biggest difficulty that the judiciary faces is fundamentally inadequate resources. It takes more time to do a case, and more staff to help sort out a case and manage a case.
In my view, at least, there is no substitute for giving litigants, whether they are represented by lawyers or not, an opportunity to really have their say, to feel respected. Only one side can win. People need to have an opportunity to be treated fairly so that they leave the system feeling that they were heard.
In other words, the busier judges get and the more demands on them, the less time they have to fill the role as a leader—being involved in the community and the profession.
That is true and that is unfortunate. Today, judges are very much aware of the number of cases before them, the efficiency within which they have to operate, and the long hours that they have to work.
I read a recent article by Judge Elizabeth Starrs in the January issue of “The Colorado Lawyer,” where Judge Starrs said that she could not go to the dentist anymore during regular working hours because she always had to be in court from 8 a.m. to 5 p.m. So, she had to find a new dentist who she could see on the weekend.
And that, unfortunately, is an example of the plight of trial judges. It reduces the amount of time, energy, and desire that a judge has to contribute to the larger community.
What do you see is the biggest challenge facing lawyers today?
Lawyers have kind of a dual challenge. It is much more difficult to make a living today. And we have a very cumbersome civil litigation system that is extremely expensive and inhibits the hiring of attorneys. I think the expense of having a law office is quite high in terms of the overhead to function as a lawyer. And that causes a severe negative effect on a private attorney’s ability to function in society. That is a shame. Some lawyers have the same attitude that some judges have, in terms of not serving the community and not being part of the profession, which I think is very critical.
Lawyers have, historically, in America, been the guardians of our democracy. They protect rights. They resolve controversies. They permit transactions to go through and adhere to the law. Fundamentally, we’re the glue that holds together a very pluralistic society.
You recently retired from the Supreme Court because of mandatory retirement based on age. Was it hard for you to step down from that position?
Yes, it was. It was bittersweet. I really loved being a justice. I loved being Chief Justice. I enjoyed the intellectual and the administrative challenges, and the dealings I had with many different people with different views.
On the other hand, I think that all good things have an ending. And this chapter has ended. I look forward to returning to the practice of law, which I have always enjoyed and found satisfying.
What do you consider some of the most meaningful aspects of your distinguished career?
As an attorney, my ability to actually help clients resolve problems in various aspects of the law. Even on a small scale, such as handling a traffic ticket for somebody or taking care of a juvenile who had a problem, I feel the ability to really service someone in a professional, intellectually challenging, and satisfying way.
As a Justice, the ability to contribute to the legal policy of the state, to be able to write opinions about important matters that the state is concerned about, has been extremely meaningful.
And, as the Chief, it has been the fact that I have been able to institute, among other things, a Leadership Training Program for the judges, which has been extensive and focused around trying to help and nurture the Chief Judges to become leaders in their community and to take responsibility for many of the difficulties they face.
Do you have any parting advice for young lawyers or new judges?
This is true about any profession, whether you are a lawyer, or a judge, or something else: it is important that you have a passion for what you do, and that you live out your dreams. If you are passionate, you will perform very well. I think that the service you provide will help many people and, to me, that is the most important thing.
It occurred to me as I was interviewing Chief Justice Bender, some of the similarities between his attributes and President Abraham Lincoln’s. He has an engaging personality and a folksy demeanor that is both friendly and disarming. He also has a keen intellect, a passion for his work and profession, and he is a visionary. I have not always agreed with his positions, but I have always respected and admired the man. I wish him success in his new endeavors. It is my hope that somewhere in our law schools today or among our young lawyers there is a budding Michael Bender. If that person is you, I hope you reach your full potential.
By Daniel R. McCune, Denver Bar Association President