So you want to be a judge

So you want to be a judge
[From left] Justice Kathryn Feldman, Justice Susan Lang (retired), Justice Sandra Bacchus, Justice Kimberley Ann Crosbie spoke on a panel about transitioning to the bench.
What’s the right age to consider applying to the bench and how do you get your application noticed? According to Justice Susan Lang, now retired from the Court of Appeal for Ontario, it has less to do with a specific age and more to do with where you are in your career and what you’ve accomplished.

Lang spoke as part of the “In August Company: Advancing Women’s Leadership on the Bench” panel, part of the 2017 Women’s Transformative Leadership Forum held in Toronto recently. The panel also included three other women judges all with a range of experience on the bench who spoke about their own experiences.

Lang, originally from Sault Ste. Marie, Ont., was on the Court of Appeal from 2004 to 2013, a judge of Superior Court from 1989 to 2004 and Toronto Regional senior judge from 1996 to 1999.

“We used to be appointed pretty young, as women,” said Lang. “I think because they were looking to appoint women, but it was said age 50 was the time to go to the bench, with the idea you’d be there 15 years. Now, we all live forever, so you can be there for about 25 years. I think some people are 41 when they apply and don’t have the accomplishments they need yet.”

Lang said one should be “well into” their 40s before applying, but she and justice Sandra Bacchus of the Ontario Court of Justice agreed that lawyers should have had a “very full, satisfying legal career” before applying to the bench.

“This isn’t a job you decide ‘I don’t want to do it’ and leave,” said Bacchus. “If you get there and don’t like it, it’s a problem — you have to be very satisfied and love the law and achieve what you want to achieve first. Our role is a passive one — you’re not an advocate anymore, so you have to apply all of that before you get to the bench.”

In applying to be a judge, what should an application include? Don’t hold back, says Justice Kathryn Feldman of the Court of Appeal for Ontario.

“Women tend to be modest — you should put everything out there and articulate why you think you have the ability to be a good listener and to adjudicate fairly and justly. Also, be personal  — let your personality show through in the application,” she said.

And when it comes to references, Feldman said the committees that vet the applications do “an incredible job” of looking broadly.

“They don’t just speak to those written on the application as submitted but consult widely in the profession and in the judiciary. So although references are important, your reputation in the community is going to be sought out in the committees. So references are not as important as they used to be because of the way the committees operate,” said Feldman.  

The panel also spoke about the importance of mentoring women who are coming up through the ranks.

“I know I benefited from Justice Feldman’s mentorship and I worry we’re not doing enough of it now because it seems everyone is so pressed for time,” said Justice Kimberley Ann Crosbie of the Ontario Court of Justice, who was appointed in March 2016. “I think we need to do a lot more of it.”

Crosbie has served as a mentor to students and has taught courses at Osgoode Hall Law School since 2009.

Having mentors is “hugely important,” said Lang. “When I was a young lawyer there weren’t that many women lawyers around, but they were always there for me. I must say when you find a mentor, often the mentor is pretty busy so the mentee has to be the one that stays in touch. There are also good mentors outside of law.”

Lang also pointed out that women don’t nominate each other for awards as much as they should. “We need to start nominating each other for awards,” she said.

As Bacchus said, making sure people know who you are is also critical.

 “Access to leadership positions is still a club and somebody has to be able to vouch for your credibility. Make yourself open and available to those around you and that includes male senior leaders where you are now — the people who currently hold the key to these positions need to know who you are,” she said.

One member of the audience asked if someone could still be considered for the bench if they weren’t a litigator.

“Some of our best colleagues were not litigators and they come and run a courtroom so professionally and know the rules of evidence or they pick them up and get interested in it and they become superstar judges. If that’s your passion, you’re going to be great at it,” said Feldman.

Lang echoed that saying judges come from a variety of backgrounds.

“We do need people with diverse backgrounds on the bench, so it would be helpful if people outside the normal advocacy stream applied. In the OCJ, I knew of one person who was a lawyer at Gowlings in civil and they sit criminal in Barrie [Ontario] very successfully, so there are all sorts of possibilities,” she said.

Katherine Kay, a litigator at Stikeman Elliott LLP, asked the panel, “What’s the worst part of being a judge?”

“I loved judging, but the one thing I don’t miss is the detailed writing,” said Lang.

“I was always very decisive, but there comes a point when you think you’ve done enough of it [and] you should leave, but I can’t really think of a bad part,” she added.

Bacchus said her jurisdiction is so busy that vacation time has to be submitted 18 months ahead of time — very inflexible in terms of  changing. That’s a minor adjustment, but, otherwise, she’s happy.

Crosbie said now that she is no longer the lawyer arguing the case she finds herself worrying about a decision going to appeal court.

“One thing I’ve noticed is as a lawyer when you argued a case you worried about what the judge will say, but now you worry what the Court of Appeal will do with the decision.”

For Lang, who practiced primarily in the family law bar, when she became a judge she found she couldn’t sit on family law cases very easily.

“I found I wanted to be on the other side and get down there and do it right, so I went and sat on criminal and civil and other things. I did go back to family law my last week as a judge.”

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