Discussion with Hon. Gretchen Walsh of the Commercial Division and Matrimonial Part of the New York State Supreme Court, Westchester County

By Evan O’Connor | Staff Writer 

Introduction

On Friday November 9, 2018, I had the pleasure of interviewing Justice Gretchen Walsh regarding her legal career and path to becoming a Judge for the Commercial Division of the New York State Supreme Court in Westchester County. Justice Walsh  earned her undergraduate degree from SUNY Stony Brook, and received her J.D. from Fordham University Law School. After graduating, Justice Walsh was a commercial litigator at Kelly Drye & Warren LLP in New York City for about fifteen years.

Justice Walsh entered the court system as the Principal Court Attorney to the Hon. Mary Smith, and then became the Principal Court Attorney/Special Counsel to the Hon. Jonathan Lippman, the Chief Administrative Judge at the time. Under Judge Lippman, Justice Walsh was the attorney for the Commercial Division focus groups, which generated a report regarding the use of Commercial Division innovations and rules in other courts. Justice Walsh then became the Principal Court Attorney to the Hon. Alan D. Sheinkman, J.S.C. and Administrative Judge of the Ninth Judicial District, where she assisted Justice Sheinkman in resolving cases assigned to the Commercial Division, Westchester County. In 2015, Justice Walsh was elected and assigned to preside over the Environmental Claims Part of the Ninth Judicial District and a Civil Trial Part in the Supreme Court of Orange County. In 2017, Justice Walsh was transferred to the Matrimonial Part in Westchester County. In January 2018, Justice Walsh was also assigned to the Commercial Division.

How does your experience as a commercial litigator impact your position as a judge in the Commercial Division today?

Answer:I understand the practicalities of the situation for attorneys, and how they are trying to juggle a lot of different cases. So, you try to be mindful of that fact while still trying to preserve the goals of the Commercial Division, which is to try to get cases to resolution in a reasonable time frame. So, it is a balancing act, but, having been a commercial litigator, I certainly understand if something comes up and an adjournment request comes in, they get it. The biggest problem in this day and age is that nobody talks to one another either in person or on the phone anymore. Everything is by email with each side trying to create a record, which does not always engender a collegial atmosphere. Our Commercial Division rules require that the attorneys have to meet and confer before they seek various forms of relief from the court.

Would you say that with technology this is the general trend that you are seeing?

Answer:I see it with my own children. Nobody talks to one another anymore, they just text each other. I do think that there is a huge loss in translation when you are texting or emailing as opposed to conversing, either on the phone or preferably in a face-to-face conversation.

What advice would you give to a law student who is interested in commercial litigation, or even just law students in general?

Answer: For law students in general you have to go into an area that you feel passionate about, and that you feel comfortable with. Commercial litigation is probably one of the most difficult areas in which to practice because you have to be a generalist. While there are subject areas that you do see over and over again, you still have to know so many things. You have to know all of the rules of civil procedure. I would encourage law students to take CPLR classes. I think that the fact that CPLR classes are not really required does a disservice to law students. So much of a commercial litigator’s practice necessitates an understanding of the rules. I would encourage students to do internships, whenever the opportunity presents itself. Practical experience is so much better than what you can learn in law school. In law school you learn how to think and how to find the answer, but you do not really get a feel of what it means to be in a court room, or what it means to have to get a brief out in a couple days, or prepare for a deposition. Some people are just not cut out for it. To be an advocate in commercial litigation you have to be able to think on your feet and be able to deal with so many different issues that you could be confronted with. I think that people should figure it out before they say this is what I want to do. There are also opportunities to do internships in the court system where law students can go and watch a trial in a personal injury case, or a matrimonial case, or a criminal case and try to figure out what areas of the law interest them for their future area of practice.

How do you, personally, stay current on what is going on in the field?

 Answer:I read the law journal every day. We have blogs that come out on the commercial division that I read. I go to bar association meetings. I take CLEs. I teach CLEs. All of these things allow us to stay abreast of what is going on. We get emails internally in the court system in terms of Commercial Division rule changes. We have meetings with Commercial Division judges where we exchange best practices and talk about technological innovations. I am constantly trying to stay current with what is going on. I even read the decisions that come down from the Appellate Division every week. I come from a different perspective than some of the other judges based on my years as a court attorney.

Is there something that you maybe miss from when you were a commercial litigator? Or is there something as a judge you are happy you do not have to do again? 

Answer:I think being the judge is the optimal situation in the sense that you get to see both sides of the story, you get to look at what the law has to say, and you try to bring about a fair and just resolution that is legally sound as opposed to advocating for a client that is either difficult or has a difficult set of facts. My experience bears out that it is not all black and white and for the most part, both sides have winning and losing points which is why the dispute is in litigation, because if it were that clear cut, the action would not have been filed. In my summary judgment decisions, it is often that some of the claims are dismissed and others survive based on questions of fact, but after the decision is issued, the attorneys see the writing on the wall and they realize that it might be better to resolve the case before trial. In fact, very few cases go to trial. Being a judge is the best and I don’t miss being a commercial litigator.

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