Transcript: 

Adam: Welcome back to Disputes and Perspectives. I'm Adam Massaro. I'm a partner in the Denver office of Reed Smith. Today I'm joined with a special guest, Honorable Judge Mark Bennett, who is a former federal judge, now a mediator, who has had years of experience, both in practice on the bench and now on the other side is trying to resolve disputes. We've got a lot talked about today. Judge, welcome to the podcast.

Mark: Thank you so much for having me, Adam. I'm very glad to be here today.

Adam: For the audience benefit, let's just reset a little bit. We've also mentioned you were on the bench for a period of time. How long were you on the bench for, sir?

Mark: I was a United States magistrate judge for two and a half years, and the United States District Court judge for 24 years.

Adam: What district?

Mark: The Northern District of Iowa.

Adam: When did you come off the bench?

Mark: Six years ago.

Adam: Since then, what have you been doing?

Mark: I've taught full-time at Drake University Law School, and started a mediation, arbitration, and legal consulting practice. I recently completed my 623rd mediation, and I do about 12 arbitrations a year.

Adam: Do you prefer arbitrations over mediations?

Mark: No, I prefer mediation.

Adam: Let's go back to your time on the bench, because we're always interested in hearing from the mind of the decider, and it's a challenge because judges in particular sometimes talk about how they think about cases, but not as much as we would like. I'd like to understand a little bit about how you think about making a decision as a judge, and what are some of the principles you pulled on as a judge when you're making critical decisions, whether it be sentencing, or critical motion, or some issue at trial?

Mark: Well, I always have fairly extensive briefing, and so I work backwards. I don't know how many other judges would do it, but I started with the reply brief, and then I worked backwards because I think the reply brief helps focus on what the key issues are, so I started with backwards. Once I read all the briefs, whatever law clerk was assigned to that case with me, I would have them come in, and I would talk to that law clerk about where I thought I wanted to go, but I gave my law clerks a lot of independent reign, and so I'd have them draft a draft opinion, and then we'd go back and forth on the drafts, come back in, and then if we had oral arguments, would tweak the draft. Occasionally, I would flip it. Lawyers would be surprised. I wrote very extensive opinions, so my average opinion, in a summary judgment ruling, was probably 40-plus pages, so I tried to be very thorough. It's very important to me to write for the losing party so that the losing party knew that I had considered all of the arguments, and I think you can search my more than 100,000 pages of judicial opinions, and I don't think you'd find the word frivolous in there because if a party raised the issue, I addressed it. I might have said it lacked merit, but I wouldn't say it was frivolous, and so I'd work through the issues, but the lawyers would be surprised. Once you have a solid draft done, it doesn't take that much work to flip the result because you have the legal analysis done, so you have to make a few tweaks. I didn't flip the result very often for what I thought going in, but I might change the reasoning based upon what happened in oral argument, so that was kind of how I approached it. I actually enjoyed cases where I didn't have much of a background as a practitioner. I enjoyed that more because I didn't bring any of my preconceived notions, so I did a lot of civil rights and employment discrimination as a lawyer, and so I did both sides. I spent the first seven years on the plaintiff's side, then by the time I went on the federal bench, I was 50-50, half on the plaintiff's side, half on the defense side, obviously not in the same case, and I think that was a big help to help me figure out how to analyze cases because I had that really balanced plaintiff and defense background.

Adam: When you approach tough decisions in cases, especially when the decision wasn't immediately clear on the briefing, how do you go about that process of struggling with and coming up with the right outcome when you need to do a deeper search, whether it's internally or externally?

Mark: Well, it was both internally and externally because I found that I like to do a lot of my own legal research. I was very proficient in some of the various legal research services, which I had used in the late 70s. My small law firm bought two desktop computers off an IBM promo tape that hadn't been built yet. We spent $50,000 on our two, and we immediately got legal research online. And so I've been doing legal research for close to 50 years. I think I'm really good at it. And so I could do a deeper dive sometimes in what the lawyers did. So I rarely relied on only the research that the lawyers did. Either my law clerks or I or both did our own independent research. And depending upon the firm, but even with big law, I found that my research was often added to my analysis from what the lawyers provided. And so I just worked as hard as I could to try and come up with the right decision based on the case law and based on how I thought the case ought to come out. I think I was known for, well, for example, I would have law clerks come in and say, well, this case is dispositive, this is the result you have to reach. I would read the case and say, yeah, I don't think it's dispositive. And they strongly suggest how it ought to come out. But if I think it ought to come out differently, then my job, meaning your job too, is to find a way to adequately distinguish the case if we can. If we can't, and it's binding precedent, I would follow it. But if I didn't agree with the precedent, even though it was binding, I would follow it anyway. In my opinion, I would always indicate why I disagreed with it, but I would follow it anyway because I took an oath to uphold the law, whether I agreed with it or not, and I took that oath very seriously. Yes, I think every federal judge I knew did the same thing. They took the oath very seriously.

Adam: On the spectrum for decision-making, you've got one end where you get the briefs, you have a gut reaction, and everything tells you it should come out this way. To the exact opposite level where you don't know what should be the outcome. And so when you're in those spaces where you don't know what the outcome is, I'm curious if you can look back and determine how did you know when you were at the point to make a decision?

Mark: I'll give an example. Three weeks after I started, I took over a very complex patent case for the senior judge that I replaced. And I told the patent lawyers that you could take what I know about patent law, put it in a thimble, and you'd have room left over. So in the middle of the jury trial, a federal circuit decision came down, and both sides briefed it. Here I was, I knew nothing about patent law, but I disagreed with both sides' analysis based on my reading of the case and the cases cited. And I applied analytics that were different than both sides suggested. Ultimately, it turned out when the case got appealed to the federal circuit, I was correct, but I didn't know that at the time. I just gave it the best shot, given my legal reasoning ability to read the cases and decide what the appropriate rule of law that I should apply ultimately to the jury instructions would be in the case, which is the same whether it's a patent case or a commercial case, civil rights case, really doesn't make any difference. You just read everything you can and make the best judgment you can, and you take into consideration the briefing of the lawyers. Usually the higher quality lawyers, the briefing was better, but I didn't always necessarily agree with that, but I gave it respectful consideration. But here's the way I looked at it. When I was sworn in as a United States District Court judge, I was the only one that raised my hand. Nobody else raised my hand. And so it was my obligation to do the very best that I could, to work as hard as I possibly could, to try and get the right answer. Usually the parties were very helpful in guiding me in that direction, but ultimately it was my responsibility. Does that make sense?

Adam: It does. I'm gonna push this slightly harder on this last point because I'll put it in my shoes as the partner. I wanna pursue an area for the case, but I also wanna be convinced it is logically sound and is going to deliver the appropriate result, factoring in all things. To me, it feels like you iterate for a while and then the best arguments are the ones that almost when you're skeptical at first, and then you convince yourself through the process that this is the outcome, there is no better outcome for this. And so I'm just curious, at some point is it a feeling, or what is it that gets you to that point where you feel confident that this is the best outcome based on the circumstances? And if it's a feeling, or if you feel like it's literally and figuratively a tipping of the scales, I'm just curious for the viewership to know what is the feel that gets you to the end result? Because we are humans through this whole decision-making process.

Mark: Yeah, we are humans, but I don't think I ever decided cases based on feelings. I decided cases based on the best judgment that I could bring to bear on an issue. And so I would read all the cases and decide what I thought was the best argument and then go with that. So I wouldn't describe it as a feeling, I would describe it as a judgment. Sometimes those judgments came easily to me and sometimes it was a big struggle and I would go back and forth. I was a big believer — well, I once argued a case in the US Supreme Court where the lead opinion said there were 42 reporting decisions on the question, and the lead opinion said this is a case where it's more important to decide it than to decide it correctly because everybody needed a resolution. Well, I never decided something because I didn't think it was important to decide it correctly. I did my best, but a lot of times you just need to decide it because justice delayed is justice denied. And I took great pride in the fact that I got 90% of my rulings out within 10 days of a hearing with on average 40 plus pages of opinions because we had worked on the opinions before the hearing.

Adam: I like it, I think it's helpful. I mean, I think it's hard for judges to have the resources or the time to write, but I do agree that the outcomes I've received in cases, even ones I didn't like, if it's written to my point as well, I think that allows for the logic to flow. And if you can't write it, it's probably an indication it may not be the right way to rule. Very similar to if you can't write the argument, it's probably not a good argument. So I hear your point. I think perhaps part of the value of the written opinion is if it makes sense from your head to the paper, that's probably a good indication you're heading in the right direction.

Mark: I think so. And the advantage of a written opinion — I know some judges would rule from the bench. I did not. I'm not sure I ever did that. I might've given a kind of indication of how I would rule. Also, I never wanted proposed findings of fact and conclusions of law, and if lawyers offered to submit them, I would say, no, thank you, that's my job, I'm not delegating that to the parties. And so, you know, I worked 80 hours a week, seven days a week. The day I started my job, I had 156 motions pending that I inherited, many of which were quite old, and we just worked really hard to get through them. But my goal was to deliver the best quality written opinions I could on virtually everything that was before me as quickly as I could do it.

Adam: Thank you. You mentioned appeals, and this is something I've never had a chance to talk to a judge about. From the lawyer, we all know what it feels like to win, lose, or draw. I'm curious from the judge's perspective, what is it like when you get a ruling from a higher court where they disagree with what you ruled below?

Mark: It didn't bother me at all. That's why they were on the higher court, so you never take that personally. And sometimes when I would hand a final draft of an opinion to my legal assistant — a fancy name for a legal secretary who happened to have a law degree — I would say to her, this is probably gonna get reversed on appeal because I know the appellate court well, and I think they're unlikely to agree with me, but this is my best judgment. And then if I did get reversed, I was fine with that. I think only a couple of times would I ever be kind of mildly irritated, because when I read the opinion I would say to myself, well, yeah, I would have reached that result had that been the case I tried, but that wasn't the case I tried. So I understood why they reached the result that they did. But I never took it personally. They had a job to do, I had a job to do. On tough issues, close issues, you're gonna have disagreement, so that's just part of the job. You do the best you can and you let the appellate court do what they do.

Adam: A couple of things I wanna touch on. First, we'll talk about the trial phase of your career. You've had some interesting comments about how you decided to handle trial days, the length of it, the logic, things like that. Share sort of how you evolved on that theory and where you ultimately landed on how you do a trial day when you're on the bench.

Mark: Yes, well, it was really more than just the trial day. I developed early on what I call the jury-centered approach to judging. So my guiding principle in terms of the mechanics of how to do a trial was the following: what would a juror want? Not what the lawyers wanted, not what I wanted, what would jurors want? Because I did so many — I had over 400 jury trials, and not many people have tried 400 jury trials in their career. I had great respect for the Seventh Amendment on the civil side and for jury trials on the criminal side, and my goal was to make the jurors an ambassador for our court when they were done with the process. So everything I did was centered around what would jurors want. I'd like to give an example. I was trying a very complex Title VII discrimination case. A hot shot, self-proclaimed lawyer from Chicago was defending, and on the very first witness, like three times he asked to approach, he wanted a sidebar. I had all the fancy white noise to do the sidebars so the jurors couldn't hear it, and every time he approached, it was a nothing burger — there wasn't anything we needed to do at sidebar. So the next time he said, may I approach? I looked at him and said, no, you may not. He said, excuse me, I'm not sure you heard me, I would like to approach. I said, no, I heard you, and the answer is no. And half of the jurors started clapping. That's when I decided I'm not having sidebars unless I see a reason for it. So I put in my trial management order, I don't do sidebars. I'll give you an example: I tried a case that had ended in a hung jury in the middle district of Florida. I helped out a lot of other districts — I had over 500 cases in Arizona, and I've tried cases all over the country, including the farthest reaches in the federal court in the district of the Northern Mariana Islands in Saipan, where I was a visiting judge for two and a half years, flying over there to do all their criminal trials. So when I got the transcript of this trial that had ended in a hung jury, I noticed there were, I had never seen so many sidebars in my life, and this was after I developed my philosophy of no sidebars. So I sent an email to all counsel in the case saying, you had — I counted it up, it was like 87 sidebars — on the retrial of this case, there will not be a single sidebar unless I request one. They were kind of shocked. Guess what? We didn't have a single sidebar unless I requested it, because it offended my Midwestern sensibilities of courtesy to have this private conversation while the jury's in the box. Now, very rarely, if I thought there was something we needed to discuss outside the presence of the jury, I might send the jury out on a short break, but very rarely, because 99% of what lawyers wanted to raise at sidebar, if you told them there would be no sidebars, they just didn't raise it because it wasn't important. And what impressed me was that after my no-sidebar rule, on the next break or after we sent the jury home or the next morning, they never raised what was so important that they thought we needed a sidebar. So it really wasn't very important, and it just made the trials go faster and a more pleasant experience for the jurors. Because if you're on a jury, do you think you enjoy five or six sidebars a day? I don't think so.

Adam: Yeah, I think I would feel like a child, where why are the adults speaking outside of my presence? We don't think of it that way, but I hear your point on that front and it makes perfect sense. How about for trial length, as far as the amount of hours in a day — what was your thought process or evolution on how long the trial day should be?

Mark: Well, I had this notion that rather than going from nine to five — because our jurors came predominantly from rural areas, they would have to drive a hundred miles, some each way. They had the option of staying overnight, but a lot of them wanted to get home to be with their family. So I thought, what would be a more jury friendly trial day that would be as close to being as efficient as a nine to five? So I started with an 8:30 to 2:30 schedule. Because I had real time court reporting, I could keep track of the number of transcripts, the number of pages of transcript, and I found out that by taking two 20 minute breaks, one mid morning and one mid afternoon, not having a lunch break, but providing food for the jurors — a choice between donuts and fruit and healthy snacks, plus beverages — it was just as efficient as a nine to five, but the jurors could leave at 2:30. They could be home sometimes in time to pick up their kids from school, and if it was a stay at home mom or dad, they could cook dinner for their family, and they were just fresher. People in the Midwest are used to getting up early, so they didn't mind starting at 8:30 in the morning. What they didn't wanna do, particularly in the winter, was leave the courthouse when it was dark out and drive a hundred miles when it was dark. So I adopted that schedule. It's hard to believe, but in the Northern District of Iowa we had the fifth heaviest criminal case load in the nation for most of my tenure. So, for example, I would sentence more defendants than a federal district court judge for the District of Columbia, the Southern District of New York, the Northern District of Illinois, the District of Minnesota, and the Northern District of California combined. And by going 8:30 to 2:30, it allowed me to give my court reporter a 30 minute break and then start sentencing every afternoon during a civil or criminal trial. It allowed me to keep my docket moving, which was important to me.

Adam: On trial advocacy, one of the best parts about being a trial lawyer is you have the ability to present your case basically any way you see fit within the bounds of the law, which is exceptional. Because of the sheer number of cases you saw, I'm always interested in creative ways that people don't think about presenting trials. For example, you don't necessarily have to as a defense lawyer present an opening argument at the end of the plaintiff's opening — theoretically, you can wait until far into the case and then present. It's an option that's so obvious but so unclear because people don't know about it, don't see it. I'm curious as far as things you've seen that were outside the norm that worked, and then we can figure out what didn't work — things that were outside the norm that worked would be of particular interest to our viewers since we don't have the ability to be at trial as much as you were.

Mark: I think generally it was a mistake to reserve an opening statement for the defense in both a civil case and a criminal case. I can think of maybe one or two times where in a criminal case the defense lawyer wanted to see how the evidence would come in, because in federal criminal law you don't get to take depositions — you don't know how the case is gonna come in, unlike a civil case where everybody is way over deposed in my judgment. So sometimes it might be best to reserve it, but because of primacy, I thought it was almost always better to give an opening statement immediately following the government, even in a criminal case, unless there was something you really needed to see happen first and you were a little unclear which alternative defenses you might use. But generally, I thought reserving it was a mistake because jurors — well, they don't make up their mind, but they have a leaning, and if they can lean to the one side that gives an opening statement while having to wait for the other, it's gonna be a long trial. I think that's a high risk act.

Adam: How about — have you seen any high risk acts that did pay off, even if perhaps you didn't think they were going to at the time?

Mark: Yes. It was a product liability case where the defense lawyer gave an eight minute closing argument. The jury was out a little bit longer than that, but there was a defense verdict, and it was a really good eight minutes. He did not go through all the evidence the way lawyers often say they won't and then proceed to do anyway. This lawyer said, I'm not gonna go through all the evidence, here are my three themes, went through his three themes, and sat down. One of his themes was a consortium claim, and this is all he said about it: I put into evidence the diary of the spouse, and I'd like you to turn to page 16 of that diary and read it — that's all I'm saying about the consortium claim. That's all he had to say. The plaintiffs didn't win on any claim, let alone the consortium claim. You don't think of an eight minute closing argument after a week long trial as something most lawyers would dare to do, but it worked great.

Adam: That's helpful, I like it.

Mark: And I think the jurors were so impressed that this lawyer didn't waste their time, because I did something, Adam, that I think every judge should do: I prepared a juror evaluation form. I would tell the jurors during jury selection that at the end of the trial they were going to get to evaluate pretty much everything about the trial — the lawyers, me, the jury instructions, the food we give them, the cookies I would bake for them on their last day, whether they liked them or not. That helped empower the jurors to know that I was concerned about what they thought. And the number one critique of lawyers on the jury evaluation forms was always some variation of: they were too repetitive, we got it the first time.

Adam: I think that's a fair point. You're right, you always see overemphasis on issues at trial, and I think we somewhat doubt the collective knowledge of the jury, but it's amazing — every time, what they come back with, the collective knowledge seems to capture almost all the information, even though they're bombarded with two different competing theories and all this information at once.

Mark: The collective knowledge of jurors is unbelievable, it is so wise. And at least in the Midwest, jurors take their responsibility seriously, particularly in federal court. I operate in this beautiful federal courtroom, an old Art Deco courthouse with 28-foot high ceilings — a beautiful courtroom. When they walked in, they were impressed by the majesty of the courtroom and the importance of the proceedings, and they took it very, very seriously.

Adam: I do wanna switch — we teased at the very beginning that you've switched to mediations and arbitrations and done a sizable amount, so I wanna get into that chapter of your career. I'm gonna jump right into the AI piece because it's interesting and I wanna make sure we have enough time for it. On the AI piece, I saw recently you used it in an effective manner. I'm curious from your perspective when you started playing in that pool and how you've seen certain effective ways to use AI so far in your alternative disputes practice.

Mark: I have not used it extensively. I have sometimes fed in information from both sides' mediation statements and asked for questions I shouldn't be asking. I didn't find that all that helpful — some of the questions weren't so good, and I would have asked some better questions anyway, but it was interesting and I'll probably continue to play with it. Part of it is I probably need to do better prompts, I get that. But I had a mediation very recently where I had a very unsettled issue of state law, and each side could not find any information or authority to support their position because there wasn't any in the particular state where the case was being mediated. So I thought I would like to know the answer to that question, particularly because I thought that if it came out the way I thought it likely would, given how smart the plaintiff's lawyer was but how unrealistic he was about the likelihood that he was right on his interpretation, convincing him otherwise would have a dramatic impact on his high demand. So I used AI. I could have done it myself on Westlaw, but it would have taken a long time, and I don't bill for my research on cases — I just do it because I'm naturally curious, and sometimes it helps the lawyers when I can weigh in on a legal issue. So I used AI and it came up with a nationwide split, the majority view and the minority view. I checked the leading cases because I was skeptical — I think being skeptical is the best trait I ever brought to the bench, I'm skeptical of everything. Once I had a good grasp on it, I was able to use that at the appropriate time. In the mediation, I shared the information I printed out with the plaintiff's counsel, and he realized that his likelihood of prevailing on this issue was more remote than he had originally thought, which is understandable, and it dramatically affected his demand. We were able to get the case resolved for a boatload of money — he and his client came out very well — but it would have been difficult without that information to get a result. So I'm gonna explore ways to use AI. I'm 70, I'll be 76 years old in June, and I'm at the end of kind of my legal career, so I've been hesitant about leaping into AI. I'm curious about it, I don't really have the time, but I'm gonna make the time, and I think I'll find ways to use it. I'm not exactly sure how that's gonna play out, but I'm not gonna give up my 50 plus years of experience and my independent judgment because AI says something. I'll take help from anywhere I can get it.

Adam: I think it's all about the framing of how you use it, because I'm very into it, but it's an augmenter, not a substitute by a hundred percent. If you don't think of it as just a Google search but as, for example, how you use clerks — I'm guessing you probably use them to sometimes just socialize your ideas to see if they landed, if the logic was there — I think you'd find that piece good. I'll give you one thought process you might wanna try: most AI tools are really good at talk-to-type, which is funny because it's taking it full circle to dictation, which regardless of how antiquated that appeared at one time, I think it's back in business. Dictation also helps you see whether you're explaining yourself clearly, because if it comes out of your head and it writes the way you think it, you're probably thinking literally. But try talk-to-type with it and then do back and forth — there are also mechanisms where you can have it speak back to you in a voice. At your level, where you already know where you want to go on issues but want a thought provoking piece, the best part is there is no reverence, no deferral as far as you being the best, which is interesting. This is my last soapbox moment on this: as you get more senior in practice, it's harder and harder to get critical feedback because the institution we're in doesn't really align that way. I think it'd be curious from a judicial perspective, as a former judicial officer, that you will get pushed back in ways you haven't gotten perhaps in a long time, but it may also open up some thinking as well.

Mark: Thank you for that, I really appreciate that. I think critical feedback is super important, super important. One of the things I did with the jury evaluation forms was, after the jury came back with their verdict, I would go down and meet with them in the jury room, debrief them, and answer any questions they had. I would then ask if they'd be willing to have the lawyers come in to talk to them separately, and I would hand them the jury evaluation forms, telling them we've made all kinds of changes in how our court does business based on the feedback we get, and that I would appreciate their feedback. They had a chance to evaluate all of the lawyers, both on objective questions and open-ended questions. We got a 90% return rate — I gave them the forms in a stamped self-addressed envelope, and told them the lawyers were very interested in improving their craft and this was the best thing they could do to help. When they came in, my legal assistant would take that portion for each lawyer and send it to them; they wouldn't get to see what the jurors said about opposing counsel, because I thought in today's advertising age they would use that in their marketing, and I didn't want them to do that. But each lawyer would get their own feedback, and they really appreciated it because they got great feedback from the jurors.

Adam: I also want to pull on your mediation practice. One of the things I struggle with is the quality of both the mediator and the participants in the mediation. On one extreme, you have both sides advocating for their positions and the mediator serving as a conduit to pass information, which isn't really effective for either the lawyers, the mediator, or the client. On the other end of the spectrum, you have mediators that are very heavy handed and just hammer both sides, which can have an equally problematic effect. And then you couple that with a very classical negotiation style — start low, anchor high, work to the middle — and when you mix all those things together, what should be an effective process becomes hopelessly ineffective. So I'm curious, as someone who has clearly taken a fresh take on things, how do you address those various concepts and make a successful mediation when we're walking in with this construct that just really invites the process to fall apart?

Mark: That is really a terrific question. When people contact me about hiring me, I tell them that if they want a facilitative mediator, I have a pet parrot, Lucy, who's very good at facilitative mediation and charges about 25% of what I charge — they laugh because it's kind of funny. I tell them I don't like facilitative mediation, I'm not very good at it, and if they want a true facilitative mediator, I'll give them the names of some mediators who do a really good job at it, but I don't like doing it myself. On the other hand, I do evaluative mediation, and people hire me because they generally trust and want my evaluation, but you can't be heavy handed in an evaluation. I think I have the temperament of a facilitative mediator but the judgment and experience of an evaluative mediator. I ask at the beginning of each mediation, even though I made it clear when they hired me, that if they don't want my evaluation they need to tell me that when we get into our breakout or caucus room, because I've been evaluating cases for 50 plus years, and as soon as I get information, I start evaluating. I want to evaluate the case, but I wanna discuss it with them — it doesn't mean my evaluation is better than theirs, but it's a different set of eyes looking at it. I probably had more trials than most of the lawyers I work with, than most of their law firms combined. So people want my evaluation, but you cannot be heavy handed about it, because it doesn't go down well — you have to blend the approaches. I had a very recent mediation on a Saturday with very good lawyers on both sides; I had mediated with the plaintiff's lawyer before, never with the defense lawyers, who were excellent big law trial lawyers. They said afterwards they were surprised for a retired federal judge how affable I was, but I tried to be affable because I like to connect with their clients, which is important. You can't be heavy handed — nobody wants to be told what to do. Think about it in your own personal life: if you have a spouse or a friend, nobody likes to be told what to do, they like to be guided — here are the pros, here are the cons, it's kind of where I'm leaning, but I'm interested in what you think, not only about what you've told me, but what you think about what I've just said. I think the problem with a lot of retired judges is they're used to telling people what the result ought to be, and they want to do that in mediation, but it's a completely different skillset. The really good retired judges understand that the skillset for mediation is completely different than being a judge, and if you can't make that transition, some people will still hire you, but you won't be as effective a mediator as you could be if you don't see the differences. Does that make sense?

Adam: It does. And I would even take it a step further to say, if you think about the best closing arguments, you are empowering the jury or the fact-finder to want to rule in your favor rather than overpowering them to that outcome. The way you're describing it is somewhat similar, because you're fighting two combative forces who have spent a lot of time and money, and putting more fuel on the fire generally isn't gonna work unless one side is likely broken and just looking to end things. But if you have a true set of adversaries that can go the distance, short of logic and idea adoption, those other tools are gonna be ineffective in my view.

Mark: Yes, and in a recent mediation I had, I was so impressed by these very sophisticated trial lawyers, who kept saying to me, what can we do to make your job easier today? Not many lawyers ever ask that question. It was really interesting, and I had a bunch of different suggestions, and they were very, very receptive to it.

Adam: I'd like to finish on something I'm very focused on. I always describe the practice of law, especially in private practice, as living on Mars, meaning you're really not built to survive here, but we do it. After I hit the 15 year mark, I focus a lot more on thriving in the environment, but that's not the legal aspect — that's the other parts of it that make you a fully well-rounded, healthy human, and I think that gets lost. You've also had a longevity to your career, and I'm curious about some of the physical things you've done over the years, or how you keep coming back to it in a way that lets you thrive rather than it being a hindrance on your health or mental wellbeing.

Mark: Yes. It's kind of strange, I'm just wired to work hard, I always have been. Last June 4th, I turned 75, and my 35 year old daughter called me that evening and asked, dad, what'd you do for fun today? I said, Sarah, I did a 12 hour arbitration, and it was one of the most interesting things I've ever worked out. She said, dad, you're hopeless. I said, Sarah, you're right, I am, but I had a great day — couldn't think of a better way to spend my 75th birthday. That evening, my spouse of 48 years and I went out for dinner. I used to work out a lot, particularly when I was a judge — I would go to the courthouse usually between three and 3:30, then go to a gym and work out from five to six, then go home and take my daughter to dance practice, then go back to the courthouse. It's very important to meet your family obligations. My daughter turned out to be a pretty good collegiate tennis player, and I wanted to make all her high school matches, getting the schedule ahead of time so I could attend as many as I could. I still work about 70 hours a week, usually up between three and 3:30 — I don't set an alarm, I just wake up and start working. I've got a great home office with multiple screens and two high speed printers. I also enjoy a few hobbies, though not as many as some of my friends, but I love to work, I find it very fulfilling. Whether you have a hobby or work, if it isn't fulfilling you gotta find something else to do, and I just love helping people. For example, I got a call recently from a lawyer I didn't know, asking if I'd be willing to be a referee in a state court partition action over real estate. This lawyer and her estranged niece owned a home and couldn't agree on which realtor to use to sell it, so the niece hired a lawyer and filed a partition action. She wanted to know if I would decide it for them. I said it's a little bit of overkill and they couldn't really afford to pay me, so I offered to do it pro bono since it would only take about 30 to 40 minutes, telling her to have the other lawyer let the state court judge appoint me as a referee and I'd decide it. Because I'm gonna help somebody solve a problem and I can do it very quickly — that's my passion in life, I find that really fulfilling. I'll have more fun deciding that quickly than if I went to a comedy club for an hour.

Adam: It certainly fits that belief that if you do what you love, you'll never work a day in your life, and I think that's true for lawyers, notwithstanding some of the stereotypes. It's funny, it reminds me — I'm getting ready to start a significant case, and at this point in my career, my mindset is, what's gonna happen during this case? I've had cases where I've gotten married and had a kid because the case lasted two or three years, and life events where I've moved twice during a long haul case. I think that's the sweet spot: when you get to the point where you can be selective in what you do, this is a journey, and each case is a new adventure — a gift where you're gonna learn a lot about yourself during the process. That enthusiasm helps make the new case exciting, and it's a way to measure life in different ways. But if you can get to that point, there's not a better profession in the world, I don't think.

Mark: I agree. I haven't preached much to my daughter, but I told her the key to a happy professional life is not ever having a job. I was a trial lawyer, I was a judge, and now I'm a mediator, arbitrator, and legal consultant — I've never had a job, I've had a calling. I've loved everything I've ever done, and when I've given up one thing, I've never looked back. I've never once regretted giving up my practice to be a judge, and I've never once regretted retiring from being a judge, because I love what I do. As long as I have a full plate, I'm happy.

Adam: Well, Judge, thank you for coming on to Disputes and Perspectives today. You've certainly filled my cup, and it's a real testament to see how longevity in the game can lead to bigger and better things. I appreciate you so much for coming on, and certainly our viewers will appreciate what you said, and they can track you down online for your mediation services. Thank you, Judge Bennett.

Mark: Well, Adam, thank you so much for having me. The time went by like that. Thank you.

Adam: I promised you it would.

Mark: Yeah, and you're right, you fulfilled your promise. Thank you so much.

Adam: Thank you, Judge.

Outro: Disputes and Perspectives is a Reed Smith production. This podcast was produced by Shannon Ryan and edited by Julian Baughman. For more information about Reed Smith's litigation and dispute resolution practice, please email [email protected]. You can find our podcast on podcast streaming platforms, ReedSmith.com, and our social media accounts at ReedSmithLLP.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

All rights reserved.

Transcript is auto-generated.