Photo by Richard Tsong-Taatari for the Star Tribune
This week, the Star Tribune reported a “rare contest” in the election of the next Chief Judge of the Hennepin County District Court. For a long time, it seemed that Judge Ivy Bernhardson, Assistant Chief Judge, would slide into the Chief Judge job unopposed, succeeding Judge Peter Cahill (whom I previously interviewed here). But Judge Tanya Bransford recently announsed her interest in the job, telling the Star Tribune that “she wants a chance to make an even greater impact on justice equity in the criminal system.” The Star Tribune also noted that, if elected, Judge Bransford would be the first chief district judge of color in Hennepin County.
I am not voting in this election and I am neither picking sides nor endorsing anyone. I think we can all be comfortable and confident that our next Hennepin County Chief Judge will be eminently qualified one way or the other.
In the mean time, we can try to get to know Judge Bernhardson a little better and I hope to be able to interview Judge Bransford in days to come, as well.
ML: What did you do as a lawyer before you were on the bench?
Ivy Bernhardson: I graduated from the University of Minnesota law school in 1978, when Carl Auerbach was still the dean. I just read that he passed away at 100 years old, by the way.
I had clerked at General Mills during law school and they offered me a job back in the 70s. It was more common for major corporations to hire people right out of law school. They stopped doing that in the 1980s, I think. I joined the law department, working for the corporate secretary, doing SEC work. The corporate treasurer’s department was a client, so we did all the financing transactions in addition to the SEC filings, and worked with the pension investment area, so I did all the reviewing of the venture capital and limited partnership agreements, stuff like that, plus any tax driven transaction as big companies engage in transactions to minimize their taxes. I did a lot of mergers and acquisitions work over the 22, 23 years I was at General Mills. I ran the corporate secretary’s department, so I did all the governance work with the board and senior management at General Mills. I was an officer of the corporation and also served in leadership roles in the corporation.
ML: And you went from General Mills to the bench?
Ivy Bernhardson: No. That was from 1978 until the year 2000. I had pretty much done everything at General Mills that I wanted to accomplish, and really loved the clients. That was engaging work with really highly skilled, intellectual people, challenging clients. You find ways to do things when you’re with corporate clients like that, and it was wonderful work, but it was clear to me that I wasn’t going to become the general counsel and rather than just spend the rest of my legal career in that environment, I decided I needed to find new challenges. So I talked to some law firms in town, ultimately going to Leonard Street and Deinard where I found the culture to be inviting and I liked the people. I went to their corporate department hoping to build a book of business on the basis of my extensive corporate experience. But it turned out to be virtually impossible for me to make that work. And I realized I wasn’t going to be happy just getting work from other people in the firm. That wasn’t me, so I had a brief foray out of Leonard Street to another corporate job for about 4 months. That did not work out, so I went back to Leonard street temporarily. Then actually the Hazelden Foundation a client of Leonard Street, invited me to be the first general counsel. They had never had an in house lawyer. I thought that was an interesting challenge. I had been on the Fairview Health System board, and I’m interested in healthcare. As it turns out, now my son is an orthopedic surgeon, so it kind of is in our DNA. It’s a very complex, interesting world, and addiction touches everyone. Everybody’s family has that somewhere and I thought it would be an interesting experience to come inside a company and look at their legal issues and try to create whatever order out of chaos is necessary, and addiction is chaotic…
At Hazelden I worked with the CEO and their board and put together policies that were needed and procedures to deal with situations, and learned a lot about addiction in the process, which of course is a perfect entrée to the trial court bench because addiction and abuse of alcohol and drugs drives a lot of behavior, not just in the criminal world, but you see it when you’re a family court judge like I was for 3 years. Anyway, I spent 3 years, a little over 3 years driving from Bloomington to Center City, which is a 60 mile drive each way, and it was an engaging and interesting job, but I needed to find a new challenge.
People kept saying to me from early on at General Mills, “You would be a wonderful judge. You should think about being a judge.”
The more I thought about it, the more I decided that I really wanted to end my career in public service. I’d served on non-profit boards, and I feel we are so blessed in Minnesota to have the wonderful community strength that we do through our non-profits and through people that give back to the community, so I thought that was the way I could do it, so I started the process and Governor Pawlenty appointed me about 9 years ago now.
ML: Last time I heard you speak, you expressed an interest in becoming the Chief Judge, is that right?
Ivy Bernhardson: Oh, right. Right, I’m the Assistant Chief Judge right now. I have been for 4 years.
The election will take place on May 2nd. There is another judge challenging me for the chief judge position, Judge Tanya Bransford who’s been on the bench quite a long time. She just announced a couple of weeks ago that she’s running against me. It’s an interesting time. I don’t know what the result will be. I’m committed to seeking the job, and I’m talking to my colleagues about what they want to know about what I think about things. That’s where we are right now.
ML: I’m curious, why would anyone want to be Chief Judge?
Ivy Bernhardson: I hadn’t given it much thought, but 4 years ago when Pete Cahill was running for Chief Judge, because he had been the assistant to Jim Swenson, the Chief before. His background was heavily criminal, and because I have a civil background, I think he sought me out. You’d have to ask him what other reasons he sought me out, but I think partly because of my extensive leadership and management experience at General Mills, and in the chairing of non-profit boards.
Governance is in my DNA. I’m comfortable with it. I’ve done a lot of work in that area. I’m a strong communicator. I’m a strong person, making sure that we get all the people to collaborate. At General Mills, it’s in the DNA there. It’s all teamwork. It’s collaboration. There’s no such thing as over-communication. I think that skillset is probably what attracted him. When he asked me to run with him, I hadn’t really thought about it because being a judge, it’s an engaging, demanding, really interesting experience, but I decided that my skillset could be best used in that job, and I could end my career on the bench this way, because I’ll be 65 shortly, and, because of our state’s mandatory retirement rules for judges, I have to retire at 70.
It seemed like the perfect way for me to add value to, not just to the Hennepin County District Court, but the state judicial branch, because we are the most innovative, we are the leader among the trial courts, and so the leader of the 4th District is a leader in the state judicial branch and it’s important to have strong leadership, I think.
ML: Are there particular things that you say as chief judge, here’s what I would want to do?
Ivy Bernhardson: You’re dealing with 62 judges. We are lucky. We’ve been very collegial in the way we operate, and we have regular bench and committee meetings, and we have structure, where we’re getting as much input as we can into how the court runs and how we move forward. We have the biggest case load that is about 40% of the cases, all the cases that are filed in the state of Minnesota. Every day, keeping the wheels on the bus, or whatever term you want to use, it’s really important that we’re all pulling together, working with court administration, because they have important work to do too. At present, it’s being out there looking for new and better ways to do things. Pete has done a great job with pushing the all- electronic world in our court system.. I’m not a techie, so I’m happy that that’s in place. I’m just committed to looking for ways to keep us moving forward. There’s not one thing per se that I can say I’m going to be driving, other than we do have a very young bench. What I’ve worked on as Assistant Chief Judge is judicial education. We need to make sure we put the new judges through a really good, thorough grounding before we unleash them on the public, followed by continuing judicial education so that we’re always renewing ourselves and making sure that we’re doing the best job that we can.
As Chief, your job is also to put in place the presiding judges of the various areas and so leadership development is going to be key for the next Chief Judge. We have all these relatively new judges. Many of them have maybe never been in a leadership role, so that’s part of what we’ll need to do, if I’m elected the new chief, which I won’t know for several weeks.
ML: Does anybody talk in Minnesota about televisions in court rooms, or broadcasting of courtroom proceedings, or is that simply not on anybody’s interest list?
Ivy Bernhardson: There’s the pilot which allows the cameras in sentencing. As far as I’m aware, that’s where things currently stand and we’re doing baby steps. I think it’s fair to say that a lot of judges have serious concerns about cameras in the courtroom in the State and what it does to the public perceptions of what happens, because in some cases, the news stations are likely to be interested in the more sensational proceedings. That’s not really what we’re about. We’re about providing access to justice to everybody and there’s a lot of things that happen and anybody can walk in a courtroom anytime and sit and watch what happens. That’s not what would be reflected on television. . There are strong views on this of course, but that’s the direction we’re headed. We will find ways to deal with it. They’ve done it in other states. I think these things take time. We’re trying to be careful about how we do things to protect the rights of people in that setting.
ML: Are there any legal reforms that you advocate? Do you have your proposals for improvements, changes, modifications of any aspect of our civil justice system?
Ivy Bernhardson: Wow, I don’t really. To be honest with you, that is not something of late that I have had the luxury of spending time thinking about.
ML: I can totally understand that. You’re in the trenches doing your job.
Ivy Bernhardson: I’m in the trenches doing my job, and I’m trying to have been studying a lot of time trying to think about this leadership transition, so I have not spent a lot of time thinking about that.
ML: I’ve spent a lot of time thinking about it, I still don’t have any ideas. I certainly have things that I think are terrible problems with our system, I just don’t know how to fix them. I recently had a case which involved less than $100,000 at stake and it took my client, who was the defendant. There was no viable claim brought against him. It ultimately cost him about $30,000 to dispose of the claim and that was after his enormously generous lawyer cut his rate out of sympathy for his circumstances. That is, I think, by far the most pressing and serious problem in our system is the cost and the fact that what for most Americans are extraordinarily large amounts of money, our system simply can’t handle.
Ivy Bernhardson: In fact, when you said that, I was starting to think about, not that particular problem, but where we have people who don’t have lawyers and who are in the system on the civil side. There’s the “gap” people in the criminal justice world that can’t qualify for the public defender, but they don’t make really enough money to get a private lawyer. There’s other people, on the civil side, where there are people who just can’t afford a lawyer period, but find themselves in court for whatever reason. It makes it very hard on the judge, especially if there’s a lawyer on one side, but not on the other. We’re always trying to encourage as many private bar lawyers to do pro bono work through the Volunteer Lawyers Network or through other means. It is not a perfect system and we see that every day too. That’s frustrating.
ML: I ask my interviewees if they have any kind of message, to get on a soapbox to Minnesota civil litigators.
Ivy Bernhardson: That’s the message. My message is to be a pro bono lawyer, volunteer, volunteer. Give your time. Tell your young lawyers that that’s a good way to get experience. There’s not that many jury trials these days, and you see that in the skill level. I think the more lawyers who can assist the justice system, everybody is better served by that.
ML: People are going to be reading this and they’re going to say, where? What do I do? Where do I go? How do I do that?
Ivy Bernhardson: Contact the Volunteer Lawyers Network.
ML: That’s the one place to go?
Ivy Bernhardson: Well of course, also through the Hennepin County Bar Association. I think they have some opportunities there. VLN has done a good job with us. They come and do clinics at the self-help center in the Hennepin County courthouse regularly. I know they’re always looking for more people. A number of our judges went to various law firms encouraging people to enroll in their programs. They do trainings too. There’s other opportunities, but that’s the easiest one that comes to mind. They’re kind of an established organization too, so that makes it a little easier for us.
ML: My son is in his first year of college and he is considering the possibility of a career in the law. If you were in my shoes, what would you counsel him?
Ivy Bernhardson: My two children did not even ask me those questions, but what I have said to many college-aged people who have sought me out that if they could intern somewhere. They need to start observing. Go check it out. There’s no substitute for understanding what you might be getting yourself into. Then, if you really have a burning passion to be a lawyer, you should get into the best law school you can, and study like crazy because the way the world is, we went through that period where there was a glut of lawyers. I think that’s probably changing, but if you really want to be satisfied as a lawyer, I think you have to do well, because it gives you more opportunities.
It is not an easy path.
ML: In terms of opportunity areas in law, do you think someone who is in law school now, or thinking about law school should think about healthcare or some other particular growth areas?
Ivy Bernhardson: That’s harder to say. Obviously, I think somebody who’s got a healthcare background, or an engineering background, if you’re interested in intellectual property, that’s likely to be a pretty strong area of growth, but if you really are a really good lawyer, that talent shows through, whether it’s in the courtroom, or it’s in a corporate setting. The people who have the strong analytical skills, who have the client service skills sort of are the package. They’re going to be able to succeed. It does take a unique set of skills, however. Not everybody has that.
ML: If someone were at the very start of their career and they’re thinking, “I don’t know whether I’m more interested in transactional or litigation.” What kind of advice would you give them on thinking that through?
Ivy Bernhardson On the litigation side, that truly is, and that wasn’t anything that I chose, but I chose corporate because I could tell from how I was engaged in my law school classes what really made me, what excited me. I know reading M&A documents doesn’t excite every lawyer, but it was something I enjoyed. I think they have to figure out, talking to other people and thinking about themselves, what drives me? What skills? What am I really good at? I think that will lead you one way or the other. I think you have to have a higher appetite for conflict in litigation, although there’s conflict in negotiating deals like I did, it’s a different kind of conflict.
ML: You’ve been on the family bench, the civil bench and criminal. One question that occurred to me to ask was whether you think the communities of criminal defense, of government lawyers, civil defense, of plaintiff’s side, are there different cultures, different personalities? The stereotypes are, “My Cousin Vinny,” — the plaintiff’s lawyer kind of seat of the pants character and the defense lawyer is buttoned up — uptight and thorough. Do you think that someone who is looking into litigation, should consider these kind of stereotypes in thinking where he or she might fit in?
Ivy Bernhardson: I think that’s kind of a dangerous approach, although by and large, the criminal lawyers tend to be a little more, I wouldn’t say seat of the pants but a lot of what they do, it is on their feet at the moment. I think as a litigator, no matter what kind of litigation, the more you’re prepared and buttoned down, maybe not from a personality point of view, but knowing your case and knowing how to articulate your position well and clearly, that’s across the board, so I think that’s a dangerous thing to say I have this kind of personality, so therefore I should be a specific kind of lawyer.
ML: You mentioned that people should do volunteer work in part because they need trial experience which is hard to get and that you see people’s inexperience on display. Two questions about that, one is how does their inexperience manifest itself?
Ivy Bernhardson: Sometimes, you can tell that they haven’t spent time preparing because they haven’t written down their questions for their witnesses and they’re wandering all over the place asking questions that really don’t make any sense, and that’s not constructive plus, you can tell if they’ve not prepped the witness because the witness doesn’t have any idea what the lawyer’s doing. I’ve seen that. I’ve seen, some lawyers must not think, “If I were the judge, what would I want to know about this case?” Or, “If I were my opponent, what would I be ready to do?” It’s thinking, not just your side of the case, but if I were the judge, what would I want to know and articulating it in a way that the judge will understand because your job is to educate the judge on some level plus anticipating what the other side’s going to say. I think it’s that 360 degree view and spending the time that’s necessary. Of course, that’s harder if you’re not getting paid very well. There are balancing and competing features there. Maybe that accounts for some of it.
ML: Second question: do you think it’s regrettable that there are so fewer trials now than there were 10 or 20 years ago?
Ivy Bernhardson: I know that part of the reason is because it is so expensive and discovery can become overwhelmingly expensive for the parties, but maybe some of it is in that discovery process. People come to some version of the truth that results in a settlement that is probably a fair result, but I do have great respect for the jury system. There’s no substitute for it at the end of the day. The juries are practical. I think people come to their jury service, some people are probably sort of unhappy that they have to be there, but to a person, everybody that I’ve ever talked to who’s been on a jury is very engaged and thankful for the service and has learned a lot through the process. I think that results in more respect for the rule of law and how we function as a society, which is so important in what is now clearly, you know, our society’s changing. The respect for the rule of law and our way of providing justice is very important. Yes, I think that that part of it is unfortunate to not have as many jury trials.
ML: Roughly, in the past year, how many trials have you presided over?
Ivy Bernhardson: Maybe 8 or 10, 12, I don’t keep track.
ML: Roughly, what would have been the durations of the trials?
Ivy Bernhardson: I’ve had a couple of trials that were 2 weeks, a couple that ran more than a week. Most of the run of the mill civil trials are like 3 days. Most of the criminal trials are 3-5 days except for the big felony cases which can be longer.
ML: Roughly what percentage were jury trials?
Ivy Bernhardson: I only gave you jury trials. Court trials are fairly common, but those tend to be-, like I’m having one today. Some of them are conciliation court appeals, so they’re very short trials, half a day, or a day. It kind of goes all over the map.
ML: This is probably almost impossible to answer, but I can’t resist. Roughly in all of your experience with jury trials, not speaking of any specific one, what would you say the percentages the jury “Got it right”?
Ivy Bernhardson: I would say in almost all the cases. I can’t give you a percentage.