Mediators’ Experiences As Lawyers And Judges Before Becoming Neutrals:

To answer this question, the author compiled an anonymous database of retired judges who were on the neutrals panels at either JAMS® or Judicate West (JW) as of May 26, 2009. These two firms were selected because of the completeness of the biographical information publicly available on the firms’ websites. Neutrals ^[1] at JAMS® are located throughout the United States, while neutrals at JW serve only in California. For this short study, only judges and justices are included; commissioners are not part of the data set. The database contains the following information on a total of 211 private judges:

• The year the neutral graduated from law school ^[2]
• The year the neutral first became a judge
• The total years each neutral served on the bench (judicial service in many careers is interrupted by a return to private practice or other responsibilities)
• The number of years between finishing law school and becoming a judge

Chart 1 shows that the average length of time spent on the bench before retiring was 17.9 years, and that the average neutral in the study data set spent 16.0 years in other activities—usually practicing law in a private firm, or as a public lawyer employed by a city, county, state, or federal entity--before becoming a judge. While the maximum time served on the bench was 36 years, the minimum was only one year. With respect to the duration between finishing law school and becoming a judge, the time ranged from a low of four years to a high of 39 years . ^[3]

Chart 1. The average number of years a judge spent on the bench before retiring, and the average number of years a retired judge spent between finishing law school and first becoming a judge:

Chart 2 shows that 10.9 percent of the neutrals served fewer than 10 years as public judges before retiring, and 29.9 percent of the neutrals served fewer than 15 years on the bench prior to becoming ADR neutrals.

Chart 2. The proportion of neutrals now in private judge capacities who served less than 10 years and less than 15 years on the bench before retiring:

Are the numbers and proportions in these charts problematic? From the public’s perspective, they may be. In California, for example, pensions for public judges are paid at the constant rate of 3.75 percent of the judge’s final salary for each year of service, up to 20 years—in other words, a maximum of 75 percent of the compensation for a judge’s position immediately prior to her or his retirement. One current system has already relied on more than $150 million from the state’s general fund—paid in 2007—to supplement contributions in order to satisfy current pension obligations to retired judges, and the shortfall is likely to increase in future years. ^[4]

With the average judge serving less than 18 years, it may be that the lucrative potential of private judging outweighs the additional retirement benefit potential offered with the additional two years of public service, and the consequent two more years of a judge’s contributions (eight percent of pay, a figure matched or exceeded by the state, depending upon the particular retirement system ^[5]) to the pension system. Whether or not that is equitable for people who rely on the court system is an important question to research in a future study.

Certainly, there are other reasons for early retirement from public service—illness, funding college for children, care of parents, other family obligations, and relocations to name a few. And retroactively changing retirement benefits is of course neither permitted under the law nor ethical; it would amount to a grossly unfair bait-and-switch once a judge is in office.

However, the lost retirement plan contributions from less than a full 20 years of public service are contributing to yearly and substantial funding shortfalls that are already serious. Abbreviated time on the bench may be an issue that California and other states in huge fiscal crises must address by considering, for example, a tiered pension benefit to encourage new judges to remain on the bench for a full 20 years, instead of maintaining a constant annual benefit rate. A mandatory lump-sum retirement payment is another option to explore for financial viability. A simulation of the short- and long-term impacts of such changes will be the subject of a future article.

End Notes

1 “Neutrals” refers to both trial and appellate judges who served in state or federal court systems.

2 This year is not necessarily the year in which a neutral passed the bar exam, but is the best approximation with available data.

3 While California requires a minimum of five years of lawyering prior to becoming a judge, other states have different requirements.

4 Mendel, Ed. Judges retirement: A costly unfunded plan. http://calpensions.com/2009/05/31/judges-retirement-a-costly-unfunded-plan/ Last accessed June 5, 2009.

5 Ibid.

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