Editor: I gather that being selected as a judge is regarded as a great honor.
Steele : Yes indeed. There is an intense effort by the private bar to encourage the most talented lawyers to apply for all three of our major courts. There is obvious sensitivity and concern as to who is on the Supreme Court and the Court of Chancery. But there also is interest in our court of general jurisdiction, the Superior Court. It is considered a privilege here to be on the bench. Getting a court appointment gives people an aura, much like the English system, of having risen to the top of the profession.
Editor: Are Delaware judges sufficiently compensated to attract top talent?
Steele : Our trial judges are the highest paid in the country. They are paid more than federal district court judges. Lawyers become judges knowing what the salary is. There is a reasonable pension system. There is a spousal pension after death and there is a two-thirds disability pension if you are disabled while on the bench. These and other benefits provide a safety net for the judiciary that is not necessarily available in private practice.
Judges' salaries are re-examined once every four years. We may get an interim boost as we have done over the past three years of two or three percent. This year is a Compensation Commission year where our salaries will be reconsidered by an independent commission. That report will be submitted to the legislature.
Some states are suffering a loss of experienced judges who, attracted by the higher pay, leave to become arbitrators. Only two Delaware judges have left the bench to become arbitrators. They did so after 24 years of service and had maxed out their pensions.
Editor: Is the selection process designed to assure that only the most qualified candidates will be selected?
Steele : Our system is merit-based with one caveat. We have a governor-appointed commission called the Judicial Nominating Commission. When a vacancy occurs in one of our courts, anyone who is a member of the Delaware Bar can apply for that vacancy, even if the vacancy occurs when a sitting judge's term expires. The Judicial Nominating Commission takes those applications, screens them and determines how many of those applicants they will interview for that vacancy.
At the end of that process, the Commission is charged with sending to the governor a list of no fewer than three and no more than five names of candidates to fill the vacancy. Those names are first vetted by the 25 members of the Judicial Appointments Committee of the Delaware State Bar Association who comment on those names as highly qualified, qualified or unqualified. The governor gets all that information.
Since 1978, the governor has nominated an individual to fill the vacancy from that list, and only from that list. The Senate then has a public hearing on the Governor's nominee at which they ask the nominee questions and take comments from whomever they wish. And then if they confirm, that person serves for a 12-year term.
The caveat that I mentioned is that our constitution requires that our major courts must be politically balanced, with no more than a majority of one from any political party. Our major courts are the Supreme Court, the Court of Chancery and the Superior Court. The Supreme Court currently has five members consisting of three Democrats and two Republicans. The Superior Court has 19 members consisting of 10 Republicans and nine Democrats. The Court of Chancery is 3-2 Democrat. The constitution also provides that the total membership of all three courts can't exceed a majority of one from the same party.
There is no denying that if a Democrat governor has a choice between a well-qualified Republican and a well-qualified Democrat, and it's possible to appoint either, it's more likely than not that the governor will appoint someone from her own political party. There is no requirement that she do so, and there have been instances in the past where a Democrat governor has appointed a Republican. For example, Chancellor William Chandler is a Republican but he was appointed by a Democrat governor. We think we've taken 90 percent of the politics out of the process. If there is a better merit selection system, I don't know where it is or how it works.
Editor: PD Villerreal in his interview mentions a judge in Chicago who was known to work so hard that he took his cases to the opera, reviewing the briefs. In Delaware, is there that kind of interest that indicates satisfaction with being a judge?
Steele : I don't know of anyone who has taken his case to the opera or to a Phillies game or anything comparable in Delaware. But our judges work very hard. They are very conscious of their reputations.
One big advantage in Delaware is everybody knows everybody. You are not a member of a 500-person bench. You are a member of a 54-person bench. And everybody knows the quality of your work. We have a 90-day rule which says once a matter is ripe for decision, you have to issue a written opinion within 90 days. So, if a case is assigned to a judge, as opposed to being decided by a jury, that judge knows his decision must be written and circulated among his peers within 90 days. It is very much in everybody's mind to keep their work load up to date.
As I mentioned, this is a major year for us because an independent commission will be providing its judicial compensation recommendations to the legislature. Because they know that these reviews take place every four years, our judges are always focused on the fact that job performance standards are important and have to be met.
Editor: One of the problems cited in the DRI report was that courtroom facilities are limited and judges are forced to carry too large a case load. Is this a problem in Delaware?
Steele : Not because of a lack of courtroom facilities. Our legislature and governor have been very good about appropriating money for courthouses. In New Castle County, for example, we have a new $160 million courthouse. All of the courts in that county, which is our most populous, and includes Wilmington, have new courtrooms and space to expand. In Dover, the capital, we have a new courthouse facility under way. It probably will be a few years before it is completed, but it will take care of courtroom expansion needs there. And seven years ago, we had a new one built in our southernmost county. So the answer is no, there are no delays encountered because of a lack of courtroom facilities.
Last year and this year, we have asked for additional judges for our court of general jurisdiction, our Superior Court. We don't have a problem with civil cases, but we are in danger of falling behind in case loads in criminal cases because of front-end loading resources to law enforcement, but we are going to ask the legislature to address that problem in February.
Editor: In many states, the judges, unlike federal judges, do not have clerks for research or good libraries or electronic facilities.
Steele : I have two law clerks, every member of the Court of Chancery has two, and every member of the Superior Court has a law clerk. Family court judges share law clerks. We do not lack law clerks, nor do we lack electronic and library facilities. We have converted completely to the e-filing of documents and we have Lexis and Westlaw access for every law clerk and every judge.
Editor: Another problem that seems to beset many state courts is that there are frequent reversible errors committed at a trial court level, or testimony is admitted that should not have been admitted under Daubert or similar rules.
Steele : If you looked at our statistics for the last eight quarters, you would find that of the cases that are appealed, and those are the only ones that I could speak to, actual empirical data shows that the affirmance rate of our trial court judges' rulings is 90 percent. Of course, the occasional case where a higher court disagrees with a trial court judge's decision is not necessarily a reflection on his or her ability.
Editor: In other jurisdictions there is a tendency for judges to be drawn from the public sector and fewer from the private bar. Is that something you are seeing in Delaware?
Steele : No. While some nominees come from the public sector, the majority of our judges come from the private bar. Judges from the public sector are in the minority. The majority come from private practice to our Supreme Court, Court of Chancery, and Superior Court. Sometimes someone has been a judge in one court and then moves to another. Four of the five Supreme Court justices were at one time trial court judges. All five members of the Supreme Court initially came to the bench from private practice.
Editor: Are Delaware court dockets so congested that litigation moves slowly?
Steele : No. We have intensively focused on case management over the last four or five years. You will find an occasional case that takes longer than another, but if you will look at the reasons why you will find most often it is the lawyers who have decided not to move that case as quickly as they ought to and have agreed to a case management plan. In Chancery, for example, we have always been liberal in letting lawyers have what is called a continuance for settlement purposes on the theory that they know best how to manage certain cases. But our docket never becomes congested. You can still get your case tried in Chancery extremely quickly, and in Superior Court with a contract case, only if you delay it, will it be on the docket for more than a year. I'm not going to tell you that there isn't an occasional case where you see three years before disposition. But if you did the average of the cases, it would be a year and a half. When you get to two years, those are outliers.
Editor: Another problem in many courts is the failure to have people who can cope with technology and the intricacy of electronic discovery. Is this an issue in Delaware?
Steele : I think it is fair to say Delaware judges, like all judges, are learning new systems. As I mentioned previously, all of our courts have e-filing, even the Supreme Court. People are getting used to the fact that case management is better when it is on a comprehensive electronically filed case management system. So e-discovery is just a logical extension of that.
The State of Delaware has spent $15 million on a comprehensive court-wide case management system. It is very innovative. It is going to allow judges to follow their cases more closely and keep on top of cases. It is going to impose a uniform system throughout all the courts where everyone will have ready desktop or laptop access to whatever is going on in any case in any court. But, it would be unfair to say that we are not still learning like everyone else is.
As to e-discovery, we have provided CLE for our judges in which we brought in experts who explained how e-discovery works. Judges have also visited corporate offices so that they can better understand the issues that e-discovery presents for corporations. In this way, we have a better understanding of how the mechanics work within the corporation, how you get information and what the complications are for getting information, the need for protection of certain documents, and the need to protect the attorney-client privilege. We, like many, are still in a learning mode.
As far as Daubert is concerned, we have spent considerable time considering scientific evidence and what it means. We have the Daubert rule. And, we have some extensive case law from our Supreme Court explaining to the trial court judges what they should be doing in their role as gatekeeper. Our judges know that they have to pay close attention to what the experts are saying and vet them for reliability and verifiability before their testimony can come into court.
Editor: Let me ask you about attacks on judges in the media.
Steele : No attorney to my knowledge has gone to the press for the purpose of attacking a sitting judge. We know each other here, which makes a huge difference. It is very difficult to stab somebody in the back in the morning when you have dined with them the evening before. If an attorney were to provoke an attack against a judge, there would be no hesitation on the part of disciplinary counsel to investigate and the Court would let the chips fall where they may.
Published February 1, 2008.