June 2017
The Elon Business Law Journal is proud to continue its interview series with the current presiding Business Court Judges in North Carolina. We had the privilege of sitting down with Judge Michael Robinson on February 8, 2017 to get his thoughts on several aspects of being a judge and the North Carolina Business Court in general.
Background
Judge Robinson obtained his undergraduate degree from Davidson College, and his J.D. from University of North Carolina School of Law. Judge Robinson has focused his practice on corporate and business litigation. He also serves as a certified mediator, an elected State Bar Councilor, and as a member of the N.C. Business Court Rules Committee.
Interviewee: Judge Michael Robinson, Special Superior Court Judge for Complex Business Cases
Interviewer: Nicole Opata, Staff Editor for the Elon Business Law Journal, Elon University School of Law L’17
NO: What do you most enjoy about being a judge?
MR: I think I most enjoy the collegiality of the court and being able to work with the other business court judges and the superior court judges. I also enjoy sitting on the bench, deciding complex issues, and being able to work for the greater good of North Carolina.
NO: What do you consider to be the most difficult part of being a judge?
MR: Finding justice. In 35 years of practicing law being a lawyer seems so hard. Advocating for your client is a difficult task. Being a lawyer is just hard work. Being a judge is equally hard, because on both sides are attorneys making cogent, passionate arguments for the rights of their clients and someone has to decide. It looks a lot easier from the other side of the bench, but when you are the one wearing the robe it’s really difficult. That would probably be the hardest part about being a judge; deciding who’s right and who’s wrong.
NO: You mentioned being in private practice for 35 years. What did you enjoy most about private practice?
MR: I think I liked learning about very discrete areas of the law. One of the interesting things about being involved in business litigation is you have to become knowledgeable about your client’s business. If you’re going to represent somebody in litigation you need to be knowledgeable about not only the issues at hand in litigation, but the context in which these issues arise. You need to learn about the industries in which they compete, how they make a living, and what their pressures are.
A lot of what I did was represent furniture companies who had a whole host of issues and disputes, whether it was with governmental agencies, their competitors, or consumers who had purchased their products. I spent a lot of time getting to know furniture manufacturers, distributors, sales people, and retailers. Being involved in the practice of law allows and forces you to become a subject matter expert in the area in which you are litigating.
NO: What prepared you most for being a judge?
MR: If I had to pick one thing it would be experience. Having litigated cases that involved complex business issues and seeing the stresses of being a litigator and advocate prior to becoming a judge helps a lot. I would also think a little wisdom that you can gain from that experience helps in being a judge.
NO: How do you typically utilize the law clerks that work with you?
MR: I am unabashed at telling people that one of the best parts of the job, in my opinion, is getting to work with the law clerks. They are bright, energetic people who can write and research well. It is not an understatement to say that I rely heavily on my law clerks to make sure I know what the law is and understand the arguments of the parties. We have robust and energized debates in our chambers about what the right decision is and so I think hands down getting to work with the law clerks is one of the best parts of the job.
NO: How do you select your law clerks?
MR: We go through a fairly standard vetting process. Having only been on the court for now seven months I’m still trying to figure out what the best process is. We utilize “Symplicity” which is a platform where individuals who are interested in becoming a law clerk can post their resumes and then we whittle those down to a few and interview. If I had any advice for anyone interested in being a law clerk, one of the most important qualities I look for are (sad to say, but if you want the honest gospel) is class rank. I believe that class rank matters. Being on a law review whether it’s “the” Law Review or a Business Law Review, or a similar type of publication, is also important, because ultimately we express most of our decisions through written rulings and opinions. The written work product of an applicant for a law clerk position is important. People can certainly criticize me for my logic or reasoning, but I surely don’t want them to be able to criticize me, justifiably, for things like grammar, syntax, cite form and things of that nature. I’m a real stickler that we need to follow Blue Book form and we need to write and express ourselves well. Being able to demonstrate to the court as an applicant for a law clerk position that you have those skills; to be able to research and write well is really, really important. The other piece of advice I have is that if an applicant does not have a very sterling law school record, but has qualities they think the court ought to look at, don’t hide the bad stuff. Own it. If you are at the bottom half of the class don’t avoid that issue on your resume, because not posting your class rank shows me you are defensive about it. I tell people own it and say this does not represent or explain who I am.
NO: When you say class rank, what percentage do you look for?
MR: Ideally, the higher the better, but it all depends on what other qualities and life experiences the applicant has had.
NO: So those things are important, but there is a holistic aspect to the process?
MR: Yes, absolutely.
NO: What is common among the most successful lawyers who come before you? Are there qualities or things you notice that lead to success?
MR: Well realizing I have only been on the bench for seven months, I say this with a huge caveat. I think the best attorneys know what issues deserve dispute and what issues are really a distraction. I think that comes with experience and wisdom. I think it’s important to express yourself well and know the legal standards controlling the Court’s decision as to any particular issue. Most good attorneys have done their research and know what the key legal issue is and the legal standards relevant to that issue. In order to get what you want from the court (which is a ruling in your client’s favor), you need to present things that back up your position. Good lawyers assist the court in understanding how a ruling in their client’s favor is not only in conformity with controlling law, but makes sense under the facts of the case. That involves researching and writing well and supporting the facts asserted with affidavits and other evidence that make sense.
NO: What advice would you give an attorney that wants to become a judge?
MR: I think there is no substitute for experience. If you really want to be a business court judge the best preparation is to be a business litigator. Get hired by a firm that does litigation in the business court.
NO: What is the process in determining the rulings in your court?
MR: We have the luxury of becoming immersed in the cases that come before us and so we try very hard to have oral arguments on most all the cases, especially on dispositive motions. We may do hearings by phone conference versus having the parties come to court if that makes sense in a particular case and helps the attorneys avoid unnecessary travel. In advance of hearings on motions we spend a significant amount of time reading the briefs, reading the pleadings, and becoming familiar with the issues in the case.
So we get ready for the hearings, we talk amongst ourselves about where we see key issues that need to be discussed with counsel at the hearings. As soon as possible after the hearings we will go back in chambers, the car, or wherever we are and talk about what we just heard. I will generally assign one of the law clerks who is helping me on that particular case to prepare a draft opinion. It has been pleasantly surprising that we might come out differently [than we thought we would upon initial review] once we put pen to paper and figure out how the case impacts the law.
NO: What has been the biggest change you have encountered in your transition from a private practice attorney to a Business Court judge?
MR: That’s a great question. There were so many changes. On the pleasant side you don’t have to keep time records anymore. So at the end of the day I don’t have to justify my existence. I have found that being freed up from that constraint really frees me to spend as much time as necessary to really understand an issue we are grappling with so we can get to the right decision. If I need to do research on case law, I can spend as much time as I need to so I can feel like I understand the issue. Lawyers spend a lot of time researching issues, but ultimately there’s this anchor weighing them down. They have a lot of clients and cases they are responsible for and we have the luxury of looking at a case and saying we are going to take as much time as we need to get this right.
NO: Are there any cases that stand out to you from your time in private practice?
MR: I was involved as counsel in an anti-trust case. The trial spanned over eight and a half months. It was a real interesting experience. It was a marathon not a sprint. It was a good lesson to me that you take every day a day at a time, because you never know what’s going to happen in court on a particular day. Every day is important in the outcome of the case. So as a lawyer you have an obligation, to the extent physically possible, to be on your “A” game every day you go into court. It’s an issue of stamina so you have to take care of yourself physically and mentally. It reinforced in me the idea that litigation is a very demanding pursuit. People who watch trials on television and think they are compressed into thirty minutes don’t understand real life. For those who want to be litigators, they need to make sure they understand that. It’s an exciting and fulfilling pursuit that does a lot for society, but it can be personally draining.
NO: I am going to switch gears from the legal profession and find out a little about you. What are your hobbies or what do you do to relax?
MR: I do the really boring stuff like yard work, mowing the lawn, and raking the leaves. I also feel strongly that lawyers are public servants and they have an obligation to serve a greater good outside of the legal business. I have tried to remain involved in community activities that involve service to others that may not be strictly legal. Our church is sponsoring a Congolese refugee family and my wife and I spend a fair amount of time trying to help them become acclimated to the community. We interact with social service agencies, helping with providing food and medical care. That brings me a great amount of joy; doing something outside our zone of comfort that helps other people.
I am also blessed to have two granddaughters, one six and one four. I try to spend as much time as I can with them. Being a grandparent is the best job in the world!