Washington Lawyer - November/December 2021 - 35

ON FURTHER REVIEW
Coming Down
From the Bench
By Lloyd Liu
J
udge Gerald Bruce Lee retired
from the U.S. District Court for
the Eastern District of Virginia,
better known as the Rocket
Docket, in 2017. He has presided
over some of the most significant
cases litigated in federal courts,
including cases involving espionage,
terrorism, and conspiracy to
assassinate the president.1
Judge Lee is also known for coining the phrase
" adrenaline of excellence, " which is, as he put
it, " that feeling you have when you walk into a
courtroom, before they announce your name
and your body sort of tenses and your heart
starts to race - that's not fear; that's your mind
and body letting you know you're ready. " 2
Now Judge Lee resolves problems in a different
way - as a mediator for the McCammon
Group. " I enjoy the transition from being a
judge, where I was the person making the
decision, to being a mediator because I can
come off the bench and get side by side with
the litigants and their lawyers and talk to them
and help them find a pathway to the resolution.
I call myself a pathfinder, " says Lee.
For those who have followed Judge Lee's
career even loosely, his transition from the
bench to mediation is unsurprising. Judge
Reggie Walton of the U.S. District Court for the
District of Columbia described him as a " fair,
compassionate, well-prepared, and knowledgeable
jurist. " 3
Federal public defender Geremy
Kamens recalled Lee's " ability to identify the
humanity in individual criminal defendants. " 4
This observation transcends criminal cases
and now suits Judge Lee particularly well as
a mediator.
" I loved the fact that I could do justice for a
large number of people. As a lawyer, you could
only represent one client at a time, " Judge Lee
said when he first ascended to the bench in
1992.5
But now he understands his impact in
a different and pragmatic way, realizing that
most justice in civil cases is not dispensed
through trial but through settlement. At least
with civil cases, if a case is going to trial, something
likely has gone wrong.
Mediation " allows the parties to design their
own resolution and to avoid the unpredictable
nature of litigation and all its risks, " Lee says.
Mediation is about having a conversation
instead of an argument; it's the difference
between being a courtroom lawyer and being
a counselor. In litigation, the parties are focused
on shoring up existing beliefs and otherwise
devoted to shooting down opposing arguments
and poking holes. This adversarial
orientation is driven by ways to defeat the
opponent.
" In the counselor's point of view, you're looking
at the rights and liabilities, but you're also
looking at likely outcomes, risk-benefit analysis,
and in the end, [if] there is a way this matter
can be resolved and end protracted litigation, "
says Lee.
Resolving disputes short of full-blown litigation
often requires elements of what has been
described as a " scout mindset, " in which a
person is trying to be " intellectually honest,
objective, or fair minded, and curious about
what's actually true. " 6
Mediation is about bringing the parties
together physically in the same space and
hashing out the issues for as long as it takes.
The pandemic tested that belief, but Lee views
remote mediation positively. " I know a lot of
lawyers had reservations about virtual
mediation because the gold standard is being
in a room with the parties for them to feel
they're being heard and that you're engaged
with them. Well, the question is whether we
could do this on a screen. We've learned over
the course of the pandemic [that] the answer is
yes, " he says.
He believes virtual mediation will become a
more permanent fixture in the legal space for
all the same reasons supporting remote work
- the savings on travel and other costs. " The
success rate for remote and in-person mediations
is comparable: most cases settle, " Lee
notes. To illustrate that point, he recounts a
10-hour virtual mediation across several countries
and time zones that resolved successfully.
It may very well be that pressure from Zoom
fatigue is an able substitute for being sealed in
a conference room.
Lloyd Liu is a partner at Bennett LoCicero & Liu LLP,
where he focuses on white-collar defense, govern -
ment investigations, and civil litigation.
NOTES
1 Walton, Hon. Reggie B., " Tribute to Judge Gerald
Bruce Lee, " 67 Am. U. Law Rev., 1505-06 (2018).
2 Mathewson, Samantha, " Fordham Law Hosts Just
the Beginning Trailblazer Event, " September 20,
2016, news.law.fordham.edu/blog/2016/09/20/
fordham-law-hosts-just-the-beginning-trailblazerevent.
3
Supra, note 1.
4 Kamens, Geremy C., " Recognizing Humanity, " 67
Am. U. Law Rev., 1471 (2018).
5 Milstein, Elliott S., " A Tribute to Judge Gerald Bruce
Lee: A Man Who Was Given Much and Who Gave
Back Even More, " 67 Am. U. Law Rev., 1481 (2018).
6 Matthews, Dylan, " The Book That Changed
How I Think About Thinking, " Vox (March 3, 2021),
vox.com/future-perfect/22410374/julia-galef-bookscout-mindset-interview-think.
NOVEMBER/DECEMBER
2021
* WASHINGTON LAWYER 35

http://news.law.fordham.edu/blog/2016/09/20/fordham-law-hosts-just-the-beginning-trailblazerevent http://news.law.fordham.edu/blog/2016/09/20/fordham-law-hosts-just-the-beginning-trailblazerevent http://news.law.fordham.edu/blog/2016/09/20/fordham-law-hosts-just-the-beginning-trailblazerevent http://www.vox.com/future-perfect/22410374/julia-galef-book-scout-mindset-interview-think http://www.vox.com/future-perfect/22410374/julia-galef-book-scout-mindset-interview-think

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