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Sonia on Settling: Obama's Nominee Discusses Avoiding Litigation at Confirmation Hearings (Web).

In front of the Senate Judiciary Committee at confirmation hearings this week, President Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor, has been grilled on her lengthy track record as a federal judge, and frequently pressed for her judicial philosophy.

Occasionally, the Second Circuit judge discussed the significance of resolving cases creatively, minimizing conflict, and judicial case management.  

So far—the hearings are continuing and are expected to conclude later today—Sotomayor’s resolution references include the following:

1)    In an exchange with Sen. Ted Kaufman, D., Delaware, on Wednesday afternoon about the judge’s early legal career as a prosecutor and commercial lawyer, Sotomayor said she began to recognize cost-savings for parties engaged in pre-litigation settlement and dispute resolution:  

SOTOMAYOR: I worked on real estate matters. I worked on contract matters of all kinds, licensing agreements, financing agreements, banking questions. There was such a wide berth of issues that I dealt with.

KAUFMAN: And how did that practice help you on the district court and then on the court of appeals?

SOTOMAYOR: Actually, one of the lessons I learned from my commercial practice, I learned in the context, first, of my grain commodity training. But in my work, as it related to all commercial disputes, there were one main lesson. In business, the predictability of law may be the most necessary, in the sense that people organize their business relationships by how they understand the Court's interpret [sic] their contracts.

I remember being involved in any number of litigations, where, at the end of the litigation, as part of the settlement, I would draft up a settlement agreement between the parties. And quite often it involved creating an ongoing new business relationship; or a temporary continuation of a business relationship so they could wind down.

And I would draft up the agreement like a litigator, like the judge I try to be. “Say it in simple words,” OK?

And I would give it to my corporate partners, and I shouldn't say it this way. And I would get back stuff that sometimes I would look at and say, “What does this gobbledygook mean?”
And they would laugh at me and say, “It has meaning. This is how the courts have interpreted. It's very important to the relationship of the parties that they know what the expectations are in law about their relationship.”

And then I understood why it was important to phrase things in certain ways. And it made me very respectful about the importance of predictability in terms of courts' interpretation of business terms, because that was very, very critical to organizing business relationships in our country.

KAUFMAN: One of the jobs of district court judges is kind of to avoid trial, kind of get people to settle before they get to trial. How did your commercial experience help you deal with that?

SOTOMAYOR: It's interesting because I remember one case with, and I can't give you details because it would be breaching confidentiality. But I remember a client coming in to me with a fairly substantial litigation.

And I looked at the client and I said--I evaluated the case, and I said, “There's some novel theories here. I really think you can win, but there's a serious question about the cost to get there, because these are all the things that we would have to do to get there. And it's going to cost you.  . . .”  It was millions of dollars that I estimated.

The client went to another lawyer who gave them a different evaluation, and they went with that other lawyer. My firm lost all that income, but the client came back afterwards, because the figure I put on the litigation was exactly what they spent, and more.

Settlements are, generally in the business world, economic decisions, balancing both the cost of litigation and the right of the issue, but it is, business has a different function than courts. Business function is to do business, to do their work, to sell products, to order relationships. And litigation are different [sic].

SOTOMAYOR: As a judge, when I was a district court judge, most of my focus was on (inaudible) doing what I used to do as a lawyer, to talk to parties not about the merits of their case, but about the consideration of thinking about creative and new ways to approach a legal dispute so they could avoid the cost of litigation.

As a circuit court judge, I'm--I'm very cognizant of the court--of the costs of litigation and look at what parties are doing in the courts below with that--bearing that in mind.

2)    Later in Sen. Kaufman's questioning, he asked Sotomayor about her experience in antitrust disputes.  The nominee said she didn’t have much experience because the cases settled, but noted the case management aspect of the area:

KAUFMAN: Turning to the antitrust law, what was your experience in antitrust law?


KAUFMAN: Both in practice and a judge, both of them.

SOTOMAYOR: I'm trying to think--I don't remember having direct experience in antitrust law when I was in private practice. I don't think I did. And so I had very little--I'm trying to think of any of my cases on the district court, and Major League Baseball strike was one of them, and it's the one that I am--that I can think of.

I had antitrust cases there, as well. Often, the cases settled, actually, and so managing those cases was the prime function I had as a district court judge. If you'd give me a chance to look at my district court decisions again to see if--and what other cases in the antitrust area I may have ruled upon on the district court, I can get back to you, Senator . . .


SOTOMAYOR: ... either at the next round or in a written question. I just don't--on the circuit court it's different. I have participated directly in writing opinions and joining panels on opinions, and so I've had at least two, if not three or four or five of those cases.

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For the full transcript and context, these excerpts come from the version appearing at the Los Angeles Times “Top of the Ticket” blog page, which has provided running updates this week covering the confirmation hearings.  The individual days’ testimony can be accessed by searching on the “complete transcript” postings on the page.

--Russ Bleemer, Editor, Alternatives and Andrew Gange, CPR Intern