TSD Q&A: Chancellor Bouchard and the Transition from Litigator to Decision-Maker

AndyBouchardAndre G. Bouchard was sworn in as Chancellor of the Court of Chancery on May 5, 2014. At his investiture ceremony, a colleague called Bouchard “the best Delaware lawyer of my generation.” Before his appointment, Bouchard had spent nearly three decades in private practice, often litigating corporate and commercial cases before the prestigious court.

In a TSD exclusive, Bouchard speaks for the first time about his early experience on the bench, his views on the future of the world-renowned court and what he is reading when he isn’t drowning in briefs.

Town Square Delaware: How is the transition going from being a practicing courtroom attorney to a judge trying cases?

Andre Bouchard: The transition has gone really well. Fortunately, I practiced in the Court of Chancery for 28 years as a corporate litigator before joining the bench, so I was very familiar with the subject matter the Court deals with on a daily basis. The biggest conceptual transition has been changing roles from being an advocate for a position to deciding the outcome.

Although the issues can be complicated and often require reflection, I have enjoyed that transition and have become increasingly comfortable making the calls that need to be made.

TSD: Anything surprise you about the perspective you have once you put on the black robes?

AG: One thing that has surprised me is that some lawyers, even ones with really good reputations, frequently do not give direct answers to the Court’s questions. There seems to be a paralyzing fear, at times, of making some huge concession. It has surprised me because my view in private practice was that the key to being an effective advocate was to take on the hard issues head-on. After all, the advocate’s job is to persuade the Court, not to duck the issues.

TSD: The Delaware Chancery Court and our state’s corporate bar are internationally recognized and a critical and outsized revenue driver for the state. Do you have every expectation that this franchise is secure for the coming generation? What might jeopardize that special standing?

AG: I feel confident that the Delaware franchise is secure. The Court of Chancery is exceptionally adept at resolving complex business disputes promptly through well-reasoned decisions. It’s our brand. We do it better than anyone else — in my obviously biased opinion. We also have an enormous advantage because we have a depth of precedent that dates back over one hundred years, which judicial officers in this Court who are highly experienced in business matters apply on a routine and predictable basis.

The biggest thing that could jeopardize our franchise, in my view, is not having talented members of the Bar pursue positions on the Court. That has not been a problem historically, and I hope it never will be, but there are some very real sacrifices in making the transition from private practice to the Bench that I know dissuade some of our best colleagues who could be great judges.

TSD: Can you recall any specific cases that helped prepare you for your new position?

AG: The thing that helped prepare me more than a particular case or two that I worked on, was the mix of cases I had when I was in private practice. In particular, I was very fortunate to have the opportunity to represent both stockholder plaintiffs and the traditional cast of corporate defendants in class actions and derivative lawsuits, which are a key part of the Court’s docket.

By litigating on both sides of the aisle, so to speak, I gained a lot of unique insights to the dynamics that drive litigation strategy and tactics in these cases. I think that’s held me in good stead to grasp what’s going on in a case and cut through some of the issues.

TSD: Is there a judge or two that you have admired, that you have really viewed as a model of what an excellent judge should be?

AG: I admire our former Chancellor and current Chief Justice Leo Strine for his ceaseless work ethic and commitment to the public good for Delaware; our former Chancellor Bill Chandler for his calm demeanor and temperament; our former Chancellor Bill Allen for his deep understanding of the modern corporation and principles of equity; and former Chancellor Collins Seitz, the greatest member of the Court of Chancery by reputation, for all of the above and his moral courage to do what’s right within the constraints of the law, as exemplified by his desegregation rulings.

TSD: What books are on your nightstand these days?

AG: When not reading briefs and cases, which occupies almost all my reading time these days, I tend to read history-related books or books on finance. Right now I’m reading Reflections on Judging by Richard A. Posner (a federal circuit judge) and The Indomitable Investor by Steven Sears.

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