In Business Q and A

Nancy Becker, Nevada Supreme Court chief justice

Interviewed by Alana Roberts / Staff Writer

Nancy Becker Photo by R. Marsh Starks

Nevada Supreme Court Chief Justice Nancy Becker is the only remaining female justice on the state's top court. Having followed in the footsteps of former Chief Justice Miriam Shearing, Becker said Nevada's judiciary has changed from one which included few women to one in which women outnumber men -- at least in Clark County. Becker said the state's judiciary has also diversified in terms of ethnic makeup.

A graduate of George Washington University Law School, Becker started her career in 1979 as a corporate lawyer in Washington, D.C. She moved back to Nevada in 1983 to work as a prosecutor in the Las Vegas city attorney's office. Since becoming a Nevada Supreme Court justice in 1998, Becker has contributed to reducing the time it takes to decide cases and implementing several case management techniques to ensure the court spends its time on the most critical legal issues.

She said the courts are addressing the need to make legal services more readily available to the state's poor. Two years before joining the judiciary in 1987, Becker founded the Clark County Pro Bono Project. The Pro Bono Project works to connect the county's poor with lawyers in the community who take on their cases for free.

Question: What brought you back to Nevada to practice law?

Answer: I always wanted to come back to Nevada to practice law. I loved this state growing up here. I think it's one of the best states in the union. It's one of the places where you can still make a difference. So when I went to law school it was always my intent to come back to Nevada and I did.

How can you make a difference?

I think anyone, whether you're born here or you've just decided to make Nevada your home, we're still a small enough state where you can become known in the community. You don't have to have money or power or influence to start new organizations, to be elected.

We're one of the few states where on any given day you can see your governor or congress people, your Supreme Court judges and you don't see that in a lot of states.

How do you think the legal industry has changed since you started practicing?

Well, there are a lot more women. When I first began practicing, when I was admitted in Nevada, there were 25 women practicing in Clark County. Now there are hundreds, perhaps even over 1,000. That's a very huge change.

And how women were perceived in the law has changed. It was an extremely male-dominated profession. My law school happened to be very diverse, but most law schools during the age when I graduated had a very small percentage, perhaps 5 to 10 percent women.

Now over 50 percent of law school graduates are women.

With most professions that have been dominated by a gender or a group, it took a while for the people who used to dominate to get used to the new faces and the new ideas. There's no difference between a female lawyer and a male lawyer, but we had to overcome those perceptions that there were differences.

When I started practicing I did a lot of corporate and business work. Particularly with construction people and small construction company owners have the tendency to talk and want to express themselves in a little bit more of what I would call the yard terminology.

So the four letter words are flying. Well you have to be comfortable talking to your attorney. So if you want to say four letter words because you're really describing your emotions and how you feel about what's happening to you I don't want a client to feel hesitant.

The first time a client did that with me and then stopped and they were all embarrassed, I said, "There aren't any of those words that I've never heard, or that I don't know the meaning to. I'm your attorney and what you're really trying to tell me.." And then I said it using those same types of words and the guy relaxed and started to talk to me.

So there was a great deal of unintentional sexism in the profession and some that was intentional. There were a number of people when I first ran for judge who simply, unequivocally said women cannot be judges, it was not an appropriate place for women to be. Fortunately most of the people no longer have those views.

There are still some who do and they of course will never vote for me or any woman for that matter. But they're entitled to it, it's a free country. I'm just glad more people don't hold those views anymore.

So that's one big change. Secondly Nevada, like most states, has seen an explosion in litigation. Not because of population growth but because everybody wants to sue these days. It used to be if you became involved in a dispute with your partner or your neighbor, people really tried to work it out amongst themselves.

It is a total societal change, both in business, in litigants and amongst the lawyers. Not every injury is legally compensable. Sometimes we just trip because we're clumsy.

Do you support alternative dispute resolution?

Absolutely. The Supreme Court and the district courts in this state, all of the judges have been really trying to promote alternative dispute resolution. Whether that's mediation, arbitration, neighborhood justice centers, trial by peers, in the juvenile court where children are actually trying their peers on smaller cases, non-violent cases as an alternative to putting them through the juvenile justice system.

The Supreme Court settlement conference program, stepped up settlement conference programs in the district courts. The use of the short trial program as an alternative for smaller cases. I think that's a part of what used to go on without any help from the courts, that's what people used to do.

(Also) the costs of litigation, like anything else, it's far more expensive these days because the cost of living has gone up so much.

Are the changes positive?

Well the tendency to be more litigious I don't think is positive. I think that growth has positive and negative aspects. The positive aspects are that Nevada is not so much of an insular state anymore, it's a much more metropolitan state, a much more open state.

Had you been here in the 1960s and early 70s and the 50s you would know that growth has brought with it a huge amount of diversity and tolerance that did not exist in this community in those time periods.

But with our growth being so fast we're obviously outstripping our resources fast. Whether it's schools, courts, police, fire. Fortunately, state and local leaders have had the forethought to try and plan ahead.

Diversity in the judiciary has increased. For the first time in the history of the Eighth Judicial District Court there are more women than men on the bench.

When did that happen?

Just the last election cycle, last year.

When you were going to law school, you said 5 to 10 percent of students were women nationwide. Now there's 50 percent. So what kind of impact will that have on the legal industry now that there are so many women?

Well there's no difference intellectually between men and women. There's still a difference in the sense biologically. Obviously men can not have children.

So where women have not been able to make real inroads is the ability to have a family and still stay within the same promotional opportunities as a male counterpart who is a father, but does not have to take off just the maternity time. Women are still, from a societal standpoint, the primary care givers. Where you have seen a change is that more male lawyers, who are in the 25 to 40 range, want to be active fathers.

So you'll see a change in how law firms arrange their work schedules, their benefits and I think that's a positive thing. Like many professions, law requires you to work a number of hours over a 40 hour work week. I don't think that having one parent be the primary caregiver, where the other parent is the primary wage earner, is as beneficial to kids as having both parents be very involved.

That's very difficult to do when your job requires you to work over the standard 40 hours a week. So if you can split that up what you will see is more people working part time with full benefits. Our own court has done that where we have provided full benefits to part time people.

Since joining the Nevada Supreme Court what have you been able to accomplish?

We have increased the awareness of the needs of economically disadvantaged people in Nevada for legal services and have made tremendous strides.

We have decreased the Supreme Court backlog by over 25 percent and have decreased the disposition rates, the time to disposition, so that we're able to get to people's cases on an average more quickly than we were able to do in 1998. A part of that is because of the expansion of the court, but a lot of it is because we've introduced new proceedings.

(We're) taking a greater look at how we issue opinions because in the same amount of time we're taking to thoroughly research and write an opinion, we might be able to do five orders. So we balance between is it an issue that comes up so frequently or so often that it warrants the time of an opinion, verses the number of cases that we could get done during the same time period.

Those kinds of management techniques the court has done a lot with. We have also looked at the resources of the state. What does it cost to run a state judiciary?

So that's the first step -- then the second step is how should we fund courts? How much should be funded from what might be called user fees, which are really what we call administrative assessments, extra fees that are tacked onto misdemeanor convictions that are currently being used to pay for portions of court construction. A quarter of this courthouse (regional justice center) was paid by user fees.

Taking a look at that and then deciding how do we do this so that every court, whether it's rural or urban has a safe courthouse, has an adequate courthouse for holding hearings, can process cases in a timely fashion. And we don't have any of the data so there isn't something to even begin a discussion with.

The most recent Nevada bar passage rate was 53 percent, which makes Nevada's bar passage rate one of the lowest in the nation. What's causing that?

I would turn that around and say we're one of the toughest in the nation. The reason for that is that our board of governors (of the State Bar of Nevada) and our board of bar examiners, as they look over the results have put a great deal of emphasis on your ability to write. Because writing and articulating and spotting issues is the central focus of a lawyer.

So our exam, because the essay portion counts as two-thirds of your score, is much tougher to pass than in a state where you're using multiple choice exams or shorter essays. What pulls them down is that they have some people who have failed multiple times. I can understand that sometimes people unfortunately aren't great test takers but maybe they would be good lawyers.

Sometimes it may be that perhaps you need to think about using your law degree in some fashion other than practicing law.

Now you can pass a bar exam and still be a lousy lawyer. That's true of human nature. We have formed a committee with the bar examiners to look into other alternatives for those individuals who did not pass the bar exam.

What role does the Supreme Court have in determining what's on the bar exam?

What we do is set the parameters for the test.

Is it the quality of the test takers that determines the outcome or is it the difficulty of the exam?

It's a combination. It's the difficulty of the exam. It can be but is not necessarily the ability of the test taker.

There are some of those people, I'm sure, who are failing because they truly just squeaked by in law school and they truly don't understand the basics of practicing law. But there may be a number of others who understand it but don't know how to communicate that in the context of an exam.

So that's why we're looking for other alternatives for people. So if it is that second group of people where they really have the ability but they just can't demonstrate it in a test format, do we allow them to do an internship, like doctors do in residency as an alternative to the situation?

Or maybe we should require that of all lawyers like all doctors. I don't know, we're exploring. The bar examiners across the nation have sort of looked at it.

What impact does a low or high bar passage rate have on consumers?

I do think if you make a bar examination too easy to pass so that anybody who graduates from law school can pretty much put out a sign and hang up a shingle you will see an increase in the amount of malpractice.

What would you say are some of the strengths and weaknesses of the Nevada Supreme Court system?

The strengths are the ability to change, to have a good dialogue with the funding agencies to try new and innovative programs like the guardianship program, the self-help centers, the senior judge/justice program, the dynamic of it's judges. We all know one another, we can get together and really move forward towards a common goal of how are we going to make the judiciary better. The down sides are we are the busiest courts in the nation per judge. We have the highest number of case loads per judge in the nation in the trial courts in the eighth (judicial district) and a very high number in second.

We're fifth in the nation at the Supreme Court in the number of cases per justice. That means that the time to disposition is longer than we want it to be. The amount of time and attention we can give each individual case is not what we'd like it to be. I think that we have become a very diverse judiciary on a state level. Unfortunately, with the number of people nationally who keep talking about judges as though they should have platforms and promoting that concept it makes it much more difficult for the judiciary to do its job in an honest, independent and impartial fashion. You may not like a decision but that doesn't mean that judge is an activist.

There's a perception out there that Nevada courts here are a little more business and gaming industry friendly than in other states. Is there any truth to that?

No. I think that the majority of Nevada's judges, as do a majority of the national judges, try to decide each case and each issue with a balanced approach. Are there some judges who would favor business or defense versus plaintiffs? Yes.

But on a whole it works out. You're not an activist because someone brings a controversy to you and you make a decision on it. You're an activist if you try to use the courts to further your own personal points of view.

That's always kind of a close line.

What do you think about a system of either electing or appointing judges?

Neither is ideal. Ideally what our founders were trying to do in the United States Constitution by making lifetime appointments was to insulate the judges from making decisions on the basis of popular opinion, and of being punished for making a decision that the government found to be unpopular.

The problem with the appointment system is it was designed to operate on the theory that we would simply appoint people on the basis of their competency and their abilities and not try and control the courts. Since President Franklin Roosevelt, not every president, but a number of presidents on both sides of the spectrum have tried to control the judiciary through judicial appointments and Congress, as well, in an attempt to create an unbalanced judiciary.

I believe that's a threat to the independence of the judiciary. When you have judges who are being selected because they have absolute beliefs on controversial issues, it's highly unlikely they're going to be able to analyze those issues in any kind of an objective or impartial format.

Is it possible to separate yourself from your personal beliefs?

Oh yes, if your belief is not the central focus of your life. There are many judges who do not believe in abortion, who would not personally have one, who would not counsel someone to have one, but who will uphold the right of privacy within the confines of the (U.S.) Supreme Court's decision even through they personally find it to be objectionable.

There are many judges who are anti-death penalty but have given death sentences, because the decision of whether to have a death penalty is up to the legislators. It is not a reason to reverse a death penalty simply because you don't believe in it.

But if you have someone who is rabidly pro-life or pro-choice or rabidly for the death penalty or against the death penalty I venture to say they cannot divorce themselves from their personal views and they will see everything in light of their own personal view. They can not see the argument from the other side and if you can't see it you certainly can't balance it. So that's the problem with the appointment process.

That problem is the same in the elective process.

Alana Roberts covers courts and labor relations for In Business Las Vegas and its sister publication, the Las Vegas Sun. She can be reached by e-mail at alanar@lasvegassun.com or at (702) 259-4059.

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