Retired judge reflects on 30-year career and challenges ahead for legal profession
Judge Jennifer Bailey
The “graying” of the profession is robbing young lawyers of courtroom experience, and “process exploitation” continues to threaten access to justice, warns recently retired 11th Circuit Administrative Judge Jennifer Bailey.
In a May 24 edition of ABOTA Ft. Lauderdale podcast, Bailey traces a 30-year career that included chairing the Supreme Court’s Residential Foreclosure Task Force in 2009, and managing her circuit’s first hybrid trial, complete with a team of University of Miami infectious disease experts, at the height of the COVID-19 pandemic.
One constant, Bailey tells ABOTA Florida President Jeff Adelman, is that too many citizens view the civil justice system as too expensive and too slow to solve their problems.
“The bottom line, we all know it, is it costs too much, it takes too long,” Bailey said. “And frequently, the value of a case is distorted by process exploitation along the way, which needs to get shut down.”
ABOTA Florida’s Jurist of the Year in 2015, Bailey helped transition the 11th Circuit to remote proceedings, including setting up courtrooms and teaching fellow judges to use Zoom.
One of her highest honors, she said, was serving on the Supreme Court’s Workgroup for the Improved Resolution of Civil Cases.
Then Chief Justice Charles Canady caused much “gnashing of teeth” when he developed a rigorous case management order, Bailey notes, but she says it was key to navigating the pandemic.
“If we hadn’t had the CMO requirement, what would have happened is, everybody would have started getting their cases ready for trial once we came out, which means we would have had a lag time,” she said. “We tried more cases the first year after COVID than any year that I was on the civil bench.”
Since her retirement in November, the 1982 University of Georgia Law School graduate has been working as a private judge, arbitrator, and mediator and participates with the American Arbitration Association as a panelist. Bailey has served on boards for the National Center for State Courts and the Institute for the Advancement of the American Legal System. These days she travels the country implementing judicial management strategies for civil justice improvement.
Bailey says civil courts put too much emphasis on establishing a trial date at the beginning of a case and “working backwards.” She notes that less than 3% of cases go to trial.
“Trial dates remain the loadstar of how civil cases move,” she said. “It doesn’t work as an organizing principle, because you are organizing around an event that truly rarely occurs.”
She says it makes more sense to “consistently work through the life of the case, to get to the point where it’s ready for either a full and fair mutual evaluation about whether it’s ready to settle or not, or to go to trial. Because that way, you know what’s going to go to trial, as opposed to being on a trial calendar with 50 other cases.”
One trend that has her most concerned is what she calls the “graying” of the profession. Managing partners and senior lawyers dominate most courtroom appearances, she said.
“When I talk to my colleagues, it’s fairly apparent, there aren’t as many lawyers with trial experience as there used to be,” she said. “It’s much more difficult for young lawyers to get trial experience.”
Bailey recalls trying 10 or 15 insurance defense cases by herself as a beginning lawyer for a large Miami firm, after being supervised for the first two or three.
There is no substitute for the real thing, she said.
“It’s one thing to read the rules of evidence, it’s another thing to apply them,” she said. “You can plan all the battle strategy you want, but being in a war is a much different experience.”
She suggests beginning lawyers log in to Zoom hearings to watch their more experienced colleagues perform.
Law firms should be more willing to let young associates try cases, even if it means helping a legal aid association, or taking a risk on a case that doesn’t promise a large financial return, Bailey says.
“You have to invest your own time and effort into training people, and you have to convince the client,” she said.
