SOLVING PROBLEMS, SERVING OTHERS
AN INTERVIEW WITH FORMER CHIEF JUSTICE JAMES J. EXUM, JR.
INTERVIEWER: CARRIE OSBORNE JOHNSTON
RESOLVING LEGAL ISSUES AS CHIEF JUSTICE
Carrie Osborne Johnston: What have been your most meaningful leadership roles during your legal career so far?
Justice Exum: I was a practitioner for only about six years from 1961-1967 practicing mostly litigation because that’s what got me started. I’ll mention, as I go through these, a couple of instances when I had to exercise leadership or had some leadership responsibilities. The thing I remember about those days was getting involved with United Nations Day here in Greensboro. I was an associate with the law firm Smith, Moore, Smith, Shell, and Potter. One of the senior partners in the firm was McNeal Smith who was a world federalist. He was very keen on somehow bringing the nations of the world together and having a world organization. Maybe today people would refer to it as a “New World Order” (or something of that sort). One of the big things we spearheaded in Greensboro was celebrating United Nations Day. In those days, the United Nations was somewhat new, and everybody had high hopes for it. It was celebrated all over the country; there was a day set aside for celebrating it. McNeal asked me if I would chair this effort here in Greensboro. I agreed to, and it was one of the most rewarding early experiences I had as a lawyer. We had a great celebration. We brought down some of the leaders of the United Nations. The leaders came and spoke to us, and we had seminars all over town. It was just a wonderful thing. That was sort of my first taste of taking hold of a project and enlisting others to join and getting them excited and getting them involved. I remember that as one of my first leadership opportunities as a young lawyer.
Then, I was appointed to the Bench. I was a Supreme Court judge. In 1967, the state legislature created a new judgeship here in Guilford County. Governor Moore appointed me to do that, and I served there for eight years. Then, I was elected to the Supreme Court and became Chief Justice of that Court in 1986. Of course, as Chief Justice, I was the head of the North Carolina Judicial System, which in itself, presented a lot of challenges, but I have to say that I enjoyed the challenges. I enjoyed the opportunities that I had to try to make a difference in the way our court systems operated, and to try to improve them, among other things. You know, the job of Chief Justice is really basically two jobs. You’ve got the job of running the Court itself and the job of participating as a Justice on the Court. The Chief Justice participates in all of the work of the Court – the arguments and the decisions and all of that. The Chief presides over the Court’s discussions when we talk about the cases and presides over the oral arguments. But, the Chief Justice is also sort of the CEO of the Judicial System, as it were. And so, he exercises this authority over the system through the administrative office of the courts, which is a very large administrative organization, headed up by a director who serves at the Chief’s pleasure. The Chief appoints the director and works with the director in administering the system.
CJ: If you can think of specific experiences that stick out to you, that would be great. For example, can you tell us about a tough call or a close case on which you had to make a decision?
JE: When I think about the cases I participated in – the close cases and some of the tough cases – a series of cases comes to mind. There are cases that we were dealing with back in the 1980’s that had to do with an area of worker’s compensation law. As you know, under worker’s compensation law, workers give up their right to sue their employers when they are injured on the job. However, in return for that, they get compensated for their injuries without having to prove anyone is at fault. If they are hurt on the job, they get compensated under the worker’s compensation laws and statutes. So, one of the areas that was very troubling to the Court back in these days was: how do you compensate people who work in our textile factories? In those days, North Carolina was a huge manufacturer and seller of textile goods – yarn, cotton, finished products, yarn spinning, manufacturing of textile finished products. So, there were lots and lots of textile mills. It was the second or third largest industry in the state. We had the three T’s – tobacco, textiles, and tourism – and textiles were big. One of the questions that was perplexing the Court was: how do you compensate a worker who works for long years in these textile factories where they were breathing this cotton dust? Inevitably, the factories would produce this cotton dust, and the workers were breathing it. They were coming down with lung problems, breathing problems. These came to be known as chronic obstructive lung disease or “COLD.” These conditions would become so severe that the workers were no longer able to work, and they would become disabled. In these cases, we would discover that the workers may also be smokers. We also discovered that they may have had bronchitis, emphysema or other lung problems that were not related to the cotton dust.
In most cases, when a worker’s injury totally disables them from work, they are compensated under the worker’s compensation laws for total disability. There’s no apportionment in the worker’s compensation statutes. But, when these cases involving lung disease were coming up to the Court, there were many who said that it’s not fair to charge the textile mills – the employers – with the full extent of the total disability when maybe the cotton dust was not the sole cause of their disability. Maybe there were other causes. And so, maybe we ought to apportion. Maybe we ought to say, “Well, if the cotton dust is a 30% factor, we’ll just give you 30% of what you would have gotten, although you are totally disabled.” There were no apportionment authorizations in the statute. So, this was a challenge for the Court – what to do? These cases all had doctors who would testify regarding lung disease, the extent of the disability, and the various things that may have contributed to it like the cotton dust, bronchitis or smoking. When we read the record in these cases, the doctors were saying almost inevitably that, “We know that cotton dust is a big problem. We can’t isolate – our tools are not fine enough for us to say how much it’s a problem. All we can say is, fundamentally, whether cotton dust was a substantial contributing factor or not.” So, it seemed to me that the way to approach these cases was to say if, looking at all the testimony, the Industrial Commission can find as a fact that the cotton dust was a substantial contributing factor, then we ought to award total disability. But, there was a lot of disagreement on the Court about that. There were some within the Court who said no, that’s not right, we still ought to try to figure out how to apportion it. So, we had these cases – we had several cases that would come along – the Morrison case was one of them, the Rutledge case was another, where the Court sort of worked its way through this problem. At first, the cases were four-and-three to try to work out some apportionments. But, I would continue to argue – and I was in the minority – that we really ought to adopt this substantial contribution standard. And finally, I was able – with some help from others who agreed with me on the Court – that this was finally the right standard. So, we wrote an opinion that said that and finally got a four-three majority for that position. So, that was one instance of some leadership on my part. I don’t want to take full credit. And, I guess this is true with everything you do, you don’t do anything much by yourself. That’s part of what being a leader is. You get other people to help you. You enlist other people, and I did enlist other people, and they helped me to put this over. You have to have help along the way. So, that’s just one example.
As far as my work with the Administrative Office of the Courts, there were things that I was able to accomplish that I was proud of. One was inaugurating alternative dispute resolution in North Carolina. I had been vice-chair of the Bar Association’s committee that studied this, and it was a great committee. I was just one of many in the Bar Association who became very interested in developing and putting into place an alternative dispute resolution and a mediation and arbitration system for our courts. The Bar Association committee, of which I was a member, worked very hard on this and came up with some good plans. Then, when I was Chief Justice, I got behind the idea and promoted it and talked to people, persuaded people – key lawyers and key legislators – that this was a good idea. And again, I was just one among a number of people who had been working on this, but I think in my capacity as Chief Justice, I was able to give it a boost, a shot in the arm, and I think that helped.
In addition, I helped to start the North Carolina Judicial Conference. We had, in North Carolina then, the trial courts, the district courts and the superior courts. The superior courts had long had a conference of superior court judges, and the district courts had the Association of District Court judges. I thought it would be a great idea if we had one group where all the judges could meet – the district court, the superior court and the appellate judges. So, with the help of some of the trial judges and some of my colleagues, we got the North Carolina Judicial Conference off the ground and had a couple of meetings.
One of the last things I did as Chief Justice before I left office was to get some outside thinking on what we needed to do to make the court system better overall. We needed to bring some minds of people who were not currently in the system – business people, retired judges, teachers, people from other walks of life – to meet and really do an in-depth study of where we are and where we should go. This was an idea that was suggested to me by others, mainly folks from Charlotte like Clodfelter, who’s now in the State Senate. He was, and is, a prominent attorney from Charlotte. The Charlotte people were particularly distressed by what they saw as inefficiencies in the system there. Mecklenburg was our fastest growing county, and they had problems that were magnified in terms of trying to administer a court system for this fast-growing population. They said, we really have to steady the whole thing. One thing I did was appoint what we first started calling the Futures Commission. It was chaired by John Medlin, who was a CEO of Wachovia Bank – not a lawyer, but a very fine businessman and administrator. He agreed to chair this commission and after that, I suggested we call it the Medlin Commission. That caught on, and people began to call it the Medlin Commission. I charged them to think outside the box, think big, look into the future, and design a court system for the future. Tell us where we ought to be in ten, twenty years from now. And, they did that. They came in with a great report – the study all happened after I left office as Chief Justice. The report came out a couple of years later with some great ideas. Not as many of them have been adopted as I’d like to see, but a number of them have. These are some of the things I think back on as Chief Justice that I had some influence on.
INTERACTING WITH THE LEGAL COMMUNITY
CJ: Can you speak about your position as Co-Chair of the Judicial Independence Committee?
JE: That’s something that’s going on right now, and this is an area in which I’ve long been interested as a lawyer and as a judge. That is, trying to improve the way we select judges in North Carolina. Also, after I became Chief Justice, I was invited by the legislature to come over and make State of the Judiciary messages. I was the first Chief Justice who was invited to do that. So, I took that as an opportunity to go over every other year and speak to the legislature about the needs of the court system. I always said in all of those talks that one of the things we need to do is change the way we select judges. In those days, they were partisan, political elections, requiring our judges to go out and raise money and cultivate friends among the Bar. I just didn’t think that was the right way to have judges selected. This is something I’ve been thinking about almost my entire professional career. The North Carolina Bar Association has also worked very hard in this particular arena over the years. I have been a member of the Judicial Independence Committee for almost a decade. This past year, the president of the Bar asked me if I would co-chair the committee with John Wester, who is a fine trial lawyer and a past president of the Bar Association, to try again to persuade our legislature to change the way we select judges to make it better.
We have had improvements over the years, since I left office as Chief Justice. We now have non-partisan elections, which is better. We have public financing for our appellate judges, which is an improvement. But, the thing that really continues to be wrong with our system is that whenever an incumbent judge comes up for re-election, no matter how well-regarded the judge might be in the profession, any attorney can challenge that judge in an election and say, “I want to be a judge,” and run against the sitting judge. I do not think that is a good system. I do not think that sitting judges should be required every election cycle, every time they are up for election, to have to face some opponent, causing the sitting judge to have to go out, raise money, curry favor with the bench, curry favor with the Bar and with the public. This is happening now, all too frequently. The Bar Association agrees with this and has for years. So, as co-chairs of this committee this year, we’ve made a proposal. We have introduced it in the North Carolina Senate. It is Senate Bill 458. What that bill will do, if it’s passed, is give the Governor a judicial nominating committee, composed of equal numbers of lawyers and lay people. The various segments of the Bar will be represented, and various political leaders will have their nominees on this committee. This committee will screen people who want to be judges, review them and review their records and nominate two candidates to the Governor. The Governor will select one of those two. The one who is not selected can run against the one that is selected in the first general election after the nomination. Whoever wins that will then be in office for a full eight-year term. At the end of that eight years, that judge will stand for a retention election, in which there won’t be any opponent. The question will be, “Should judge so-and-so be retained in office?” That seems to me to do two things. First of all, it continues to give the people a say in who their judges will be. And, at the same time, it eliminates this kind of free-for-all election process whereby any lawyer – qualified or not, experienced or not – can challenge a sitting judge, willy-nilly. It eliminates that, which I think is the worst feature. That’s our proposal, and the committee agreed on it. John Wester, the incoming president of the Bar Association, the current president of the Bar Association and I have all spent time in Raleigh talking to our legislators, trying to interest them in moving this legislation forward.
CJ: Has that proposed plan been adopted by other states?
JE: Versions of it have, but this plan is actually unique. No state has this precise plan. There are states that use nominating committees and retention elections, but no state, so far as I know, has this idea of the nominee not chosen by the government can run against the one chosen. That is unique in our system that we proposed. There’s another bill in the House that we are also interested in. We don’t like it as well as we do ours, but it has been introduced by Representative Stam. It allows the Governor to appoint whoever the Governor wants to appoint. That appointment would have to be confirmed by the members of the General Assembly. Then, that person serves an eight-year term, at the end of which they would face a retention election. That has the advantage of simplicity, and that has the advantage of being more like systems that are in place in other states. We think that is a lot better than what we have now because it eliminates this free-for-all type election that I think is the main problem.
ADVISING LAW STUDENTS AND LAWYERS
CJ: What is one lesson you have learned during your legal career that you wish to share with other lawyers or law students?
JE: You are never able to do anything by yourself. You have to enlist and persuade and get other people to help you. You can’t just go off on your own with some idea, as good as the idea might be. You’ve got to bring people along. I’ve found this true in just about every endeavor that I’ve ever engaged in, in which I might have had a “leadership role.” I’ve found that in a leadership role, your primary method, what you really have to do, is get other people on board with you and get help from them. The more help you have for whatever project or whatever idea you are working on, the more likely you are to succeed. You don’t do things by yourself. Leadership involves, first of all, conviction. You need to be convicted in yourself and believe in what you are thinking or doing. You’ve got to have some energy. You need to be willing to work and sacrifice some other things for what you are trying to accomplish. You can’t do everything. You have to get some focus. You have to set some priorities. What’s more important, this or that? Then, ultimately, you have to say, “Who can I get to help with this? How can I get this going?” Usually, it takes a number of people to get something worthwhile done.
CJ: You may have alluded to this, but we’re interested in knowing what leadership means to you in the context of the legal field and what capacities lawyers may act as leaders.
JE: I can comment on that. You know, lawyers are a privileged group. I think sometimes we lose sight of it. We work real hard to get ourselves in a position to be admitted to a law school, and we work hard to get good grades. Then, we come to law school and we work even harder because the work is challenging – there’s nothing easy about it. Our noses are to the grindstone for three years; we read our eyes out. So, we sometimes come out thinking: I deserve all this. People owe me something for all I’ve been through. But, actually after going through all of this, what we really have then is not a right, but a privilege. The privilege of practicing law is something that people have decided to bestow upon us, and they can take it away, just like they give it. The general statutes of the legislature are representative of the fact that people have given us a monopoly – given lawyers a monopoly – on this great enterprise that we call practicing law, appearing in our courts, representing clients, speaking for clients, speaking for somebody else, taking the burden of somebody else and putting that burden on ourselves and helping that person with the burden. This is hard work, but it boils down, ultimately, to being a privilege. It is a real privilege that we have, and we get special consideration because of it. We are the only people who can come in court and plead a case for somebody else. Nobody else can do that. We’re the only people who can sit down with a client, and give that client legal advice in our conference rooms. Lawyers, because of the privilege we have, I’ve thought, have an obligation to give something back, in return for this privilege we have. We really have an obligation. I hate for us sometimes to think of it as an obligation because that sounds negative. I think of it as an opportunity. I think we need to think of it as an opportunity.
We’ve got this great privilege, and this great privilege, in many ways, has trained us to have the kind of state of mind, to have the kind of logical thinking to, in the words of one of the poets – I think maybe it was Kipling – to “keep our heads when all about us are losing theirs.” We are trained to be objective, to be dispassionate, to look at things on the merits. This is a great training. We not only have this wonderful privilege, but also the skills that we have been taught, that we have learned, that we’ve practiced that specially equip us to help our communities resolve their difficulties, to help society and all of its walks, resolve the challenging things that our society is facing at all levels. And, my goodness, this is a particularly difficult time we are going through in this country, nationally, at the state level and at the community level. There are so many things out there, so many issues, so many problems that need resolving. And lawyers are specially equipped to help resolve these things. That’s why, when I was in the legislature back in the 60’s, probably 65-70% of the members of the legislature were lawyers. That has dropped greatly now, and I’m sorry to see it. As I say, lawyers have this privilege and they have these skills, and the combination of both of them, to me, means let’s get out there and let’s do some things to give back. Let’s do some things to help. We’re very busy in our practice. Certainly, our clients take priority; they have first dibs on our time and our effort, but we can always set aside some time to work out in the communities, to work in our churches, to work in our civic clubs, to get initiatives going that we see a need out there for, to make the community a better place. Lawyers can do this and, in my view, better than most. We need help, but we are in a unique position to do this very well.
CJ: What advice would you give to current practitioners about how to exhibit leadership in their field?
JE: How to exhibit their leadership is just to get out and get involved. People are waiting for you, opportunities are waiting for you. There are organizations out there already in place and have been in place, that need your help. There are non-profits, there are churches, there are civic clubs, there are organizations that are trying to help the community in various ways. You have organizations like Habitat for Humanity, the Jaycees, just all kinds of groups out there just waiting for us, waiting for us to come in. All you’ve got to do is pick up the phone and say, “How can I help, what can I do?” They’ll welcome you with open arms. You have things like the North Carolina Symphony, all the cultural things, our museums, our schools. My goodness, lawyers can get very active on the local level in their schools, not only in the classroom – helping to teach, making presentations with PTAs, getting on the school board. You know, the Chairman of the Guilford County Board of Education is a lawyer who I practice with. He is an extremely able lawyer, and I think he has done a fantastic job as chairman of the Guilford County School Board. It is a thankless job, but he has tackled it with great effort, with great skills, and from my standpoint, I think he is one of the best school chairs we’ve had in many years. He felt the need there. He had children in school, and he felt like the school board needed some help, so he volunteered – Alan Duncan. Those are the kind of things – it’s not hard to get involved. All you have to do is pick up the phone, and say, “I want to do this.” Public office, run for the legislature, be a candidate, run for the Board of Commissioners, run for the City Council. Those groups need good people. Those are the kind of things I would encourage practitioners to do.