~meriran (!College of ~rial JLabJpers THE BULLETIN

Number 35 Winter 2000

remain trapped in sub-standard pub­ lic schools and asked, "So why should it surprise us that minority Philadelphia kids - who come in disproportionate numbers from low to moderate in­ come homes - struggle to compete 49th Annual Meeting academically with their largely better-prepared white classmates?" (Continued on page 3)

ugh L. McColl, Jr. be­ gration made the difference. I be­ H came the CEO of a small lieve that integration and the unity The Seventh bank in Charlotte, North Carolina it began to nourish became a in 1983. Last year that bank source of strength." merged with and became the He spoke of diversity and the ACTL Sponsors Bank of America. "He is now importance of the two professions Anglo-American CEO of the most highly valued of "lawyering and banking" to .• financial institution in this coun­ make more progress in determin­ Exchange try and in the world," Past Presi­ ing that all citizens are equal un­ dent John C. Elam said as he der the law. in introduced the first speaker at the "As long as there is a lack of 49th Annual Meeting ofthe Amer­ balance between diversity in our Edinburgh ican College of Trial Lawyers in society and the diversity in our Philadelphia. professions we are incapabl~ of and London achieving our potential or serving Speaking of the South he grew our country well. Until we achieve ssociate United States up in, Mr. McColl said, "Almost this balance we will be part of the ASupreme Court Justice An­ immediately after we integrated problem of divisiveness and not thony M. Kennedy and then College our schools, the South's economy part of a unifying solution. We President E. Osborne Ayscue, Jr. led took off, our community life will be an impediment to our a United States delegation to the first strengthened and our cultural life country's success." phase of the seventh Anglo-American became enriched. I believe inte- He said that many minorities Exchange in Edinburgh and London

r in This I~sue: 'ACTL Calendar o1f Events - 12 1 - 49th ACTL Annual Meeting, Philadelphia Honorary Fellowship (Canadian Justice 1- Anglo-American Exchange . Ia.cobucci)- 13 6- The President's Report 1999 National Trial Competition - · 14 8 - Fellows Appointed to the Bench Immediate Past President's Report - 15 10 - New Fe1lows Inducted ACTL Activities - 19 THE BULLETIN 2

(Continued from page I) to parliaments in Scotland, Wales in September. The remainder of the and Ireland. The British account of l!lmeritnn I!J:ollege of m:rial "JLawrers delegation consisted of Associate the experience of having decisions of THE BULLETIN Justice Clarence Thomas, California its highest court subject to review by CHANCELLOR-FOUNDER Supreme Court Chief Justice supranational tribunals served to em­ Hon. Emil Gumpert (1895-1982) Ronald M. George, Tenth Circuit phasize for the delegates from the Court of Appeals Judge Deanell R. United States the significance of our OFFICERS Tacha, District Judge Sam C. having declined to ratify treaties that MICHAEL E. MONE, President EARL J. SILBERT, President-Elect Pointer, Jr. ofthe Northern District would grant such power to tribunals STUART D. SHAN OR, Secretary WARREN B. LIGHTFOOT, Treasurer of Alabama, Past Presidents Ed­ outside the United States. The British E. OSBORNE AYSCUE, JR., Immediate Past President ward Brodsky, Leon Silverman and use of - and view of - jury trials Andrew M. Coats, now Dean ofthe proved to be quite different from BOARD OF REGENTS E. OSBORNE AYSCUE, JR. EDWARD J. RICE, JR. University of Oklahoma Law ours. Charlotte, North Carolina New Orleans, Louisiana School, and Sylvia H. Walbolt of In addition to exchanging papers DAVID S. CUPPS CAMILLE F. SARROUF Columbus, Ohio Boston, Massachusetts St. Petersburg, Florida. on these and other subjects, the dele­ LOUIS W. FRYMAN JAMES P. SCHALLER The British delegation was led by gates and their spouses had the op­ Philadelphia, Petmsylvania Washington, District of Columbia Chief Justice Lord Thomas Bing­ portunity to observe the functioning FRANK N. GUNDLACH St. Louis, Missouri DAVID W. SCOIT, Q.C. ham. The other members of the of courts in both Edinburgh and Lon­ Ottawa, Ontario DAVID 0 . LARSON San Francisco, California STUART D. SHANOR British delegation were Lord Alan don and to visit historic sites in both Roswell, New Mexico THOMAS R. LEMON Rodger, the Lord Justice-General of cities. They were entertained at the Warsaw, Indi ana EARL J. SILBERT Washington, District of Scotland; Sir John Frank Mum­ residence of the United States Am­ WARREN B. LIGHTFOOT Columbia Birmingham, Alabama mery, a Lord Justice of Appeal; Sir bassador to the Court of St. James TOMSLUTES MICHAEL E. MONE Tucson, Arizona Hayden Phillips, Permanent Secre­ and at Gray's Inn. Boston, Massachusetts PAYTON SMITH tary and Clerk of the Crown in "We came away from these ses­ ( JAMES W. MORRIS, Ill Seattle, W?shington Richmond, Virginia JAMES F. STAPLETON Chancery; Peter Goldsmith, a for­ sions with a new appreciation both of Stamford, Connecticut mer Chairman of the Bar Council, the common roots of our two legal ROBERT A. YOUNG Executive Director who has since become a life peer; systems and of the differences that COMMUNICATIONS COMMITTEE Mr. Justice Maurice Kay of the our diverging cultures and histories Queen's Bench Division; Sir Syd­ have produced," Mr. Ayscue re­ SHARON M. WOODS, Chait; Detroit, Michigan E. OSBORNE AYSCUE, JR., Charlotte, North Carolina ney Kentridge, Professor Jack Beat­ flected. JOHN A. BARLOW, Longview, Washington WILLIAM L. POPE, Columbia, South Carolina son of the faculty of law of Cam­ Fellow Sylvia Walbolt, the second DANIEL T. RABBITT, St. Louis, Missouri W. STANCIL STARNES, Birmingham, Alabama bridge University and Jeremy P. woman inducted as a Fell ow of the PETER F. VAIRA, Philadelphia, Pennsylvania ERIC ZUBEL, Las Vegas, Nevada Carver, head of the International College, observed, "It was the most DAVID 0. LARSON (Regent Liaison) Division of Clifford Chance, soon to extraordinary experience of my pro­ GARY HUNT Managing Editor be the world's largest law firm. fessional career, at both the intellec­ The agenda for each session of tual level and the collegial level." the Exchange is set by the host The second phase of this Ex­ country. The Delegates had an op­ change is scheduled for September portunity to compare in depth the 2000 in Washington, D.C. way in which out-of-court publicity, Past Exchanges have resulted in comments to the media by lawyers such innovations as the use of written American College of Trial Lawyers and television coverage of trials is briefs in appeals in Great Britain and 800 I Irvine Center Dr. , Suite 960 Irvine, California 92618 handled in each of their countries. the Inns of Court movement in the Telephone: (949) 727-3194 Fax: (949) 727-3894 The British delegates were particu­ United States. 0 E-Mail: acotl @earthlink.net larly interested in the American ex­ COPYRIGHT 2000 perience with federalism in light of ~------' the recent transfer of certain powers from the central British Parliament 3 THE BULLETIN

49th Annual Meeting vention Committee to hold its 2000 has come back so much, there are convention here in Philadelphia." Americans living ten minutes from (Continuedfi·om page 1) here who I am ashamed to admit live He said that his company's foun­ Mayor Rendell, who previously in a hopeless condition. That ought dation made a decision last year to served as the city's district attorney, not to be how it is. We ought to have put the bulk of their charitable dol­ acknowledged that Philadelphia has a the power, the resources, the energy lars into early childhood education sense of "vitality, energy and dy­ and the will to make a difference." and preparedness programs. "By namism," but also noted that, "in supporting programs like Success By 1998 - in the midst of all this energy In introducing The Honorable Six and Smart Start we are attacking · - requests for food by families to our Edward M . Kennedy, President­ the circle of poverty and educational food banks increased by 22 percent. Elect Michael E. Mone said of the underachievement at the root," he Requests for shelter by families in­ United States Senator for Mas­ said. "We are working to make sure creased 17 percent." sachusetts, "He has been a strong that kids are prepared to learn the "While all this is going on," he and passionate vote for many of the first day they step through a school­ said "the~e have been Americans issues that Mayor Rendell just talked house door. And what we are learn­ ' who have clearly been left behind, to you about. On affordable health ing is that minority kids can compete, who haven't been touched by the care for all of our citizens, it has and win, just as well as anybody." recovery, whose lives haven't been been Ted Kennedy's voice that has changed. Opportunities haven't been helped to achieve what we have. Past President Robert B. Fiske, Jr. created for them." When the students in this country did introduced Edward G. Rendell, who He noted the debate in Congress not have the money for college, it is finishing his second four-year term about the projected budget surplus was Ted Kennedy's voice that was as Mayor ofthe City of Philadelphia. and said, "We ought to be spending heard. On issues that we care about, Mr. Fiske told how Mayor Rendell that money and we ought to be spend­ like legal services for the poor, it was had changed Philadelphia from a city ing it fixing America's problems." Ted Kennedy who spoke up . On the "in shambles" to a city with a sense He spoke of a crumbling Ameri­ preservation of the jury system and of "identity and pride." can infrastructure, the lack of health the rights of Americans to seek re­ "He privatized many city services care coverage for many Americans, dress in court, Ted Kennedy is the and engaged in hard bargaining with out-dated school buildings where, person who has carried that battle. the unions, changing the compensa­ "there aren't enough books to go Historians looking at his career have tion packages and changing out­ around and where learning to operate said that he is one of the most effec­ moded work rules that were a dis in­ a computer is a distant dream." tive legislators that has served in the centive to productivity," Mr. Fiske He emphasized this period of United States Senate in the last 100 said. "What he inherited as a $230 prosperity in our country and said, years." million deficit has turned in the last "When this country was founded, we five years into budget surpluses. He took care of each other. If someone Highlighting the issue of con­ also engaged in a number of major was unemployed, we brought them sumers ability to sue HMOs, Senator development initiatives. He has built food and we brought them clothes Kennedy said, "Beyond everything a new Lincoln Center type concert until they got back on their feet again. else there is one fundamental under­ hall, twelve new hotels are under It's what made America a very very lying theme - who is going to make construction or already built, there special place. We didn't fear immi­ the decision with regards to your has been an extensive waterfront grants, we welcomed each wave of health care, your parents' health care, commercialization project, a Na­ immigrants bec-,use we were all im­ or your children's healthcare? tional Constitutional Center and an migrants ourselves." Should that be an accountant in an Avenue of the Arts right here in the "The sun is shining," he said, "the insurance company, or should it be a center city. Finally, in his most conditions are right for America to medical professional?" crowning achievement, he has per­ provide opportunities for all Ameri­ He said, "Americans, all over the suaded the Republic National Con- cans. And in this glistening city that (Continued on page 4) TJIE BULLETIN 4

49th Annual Meeting

(Continued from page 3) American Bar country - north, south, east and west Association President - say it ought to be done by medical William G. Paul was accounting, but not the HMOs." introduced by a former He also said there is not a country law partner and ACTL in the world that has a strong trial bar Past President Andrew like the United States. "That is the M Coats. backbone of what is right in terms of the consumer protection and the fun­ damental families of this country."

Past President Andrew M. Coats introduced William G. Paul, Presi­ dent of the American Bar Associa­ tion. He told of how Mr. Paul had hired him as a summer law clerk and "It's the question of multi­ can Bar Association is so significant, . had given him his bicycle, "to ride disciplinary practice (MDP). It is the so important," he said, "is that his­ back and forth to law school." They question of whether lawyers should torically our model rules, adopted by then practiced in the same law firm be permitted to practice law with the House of Delegates, become the for many years. In 1976 Mr. Paul other professionals - with accoun­ national standard. This is a matter was President of the Oklahoma Bar tants, with financial planners, with for state regulation. But most states Association and Mr. Coats was Pres­ consultants. It's a question of do follow the lead of the American ident of the Oklahoma County Bar whether our rules of professional Bar Association." Association. conduct should be changed to permit He said this issue will most likely Of Mr. Paul's trial experience, he the sharing offees. And the answer to come before the ABA in July 2000. said, "He tried all kinds of cases as a the question goes to our core values. Mr. Paul said, "The question may lawyer. He became, very early, a It goes to questions of the indepen­ be - should we do nothing and see Fell ow of this College because of his dence of the lawyer, if not the profes­ continued proliferation of this prac­ exceptional trial work. He tried di­ sion, to attorney-client privilege, to tice, undirected, unregulated? Or, if vorce cases, personal injury cases on maintaining confidences of the client, we don't change our rules, should we the plaintiff and defendant side. He conflicts of interest. So it is a deadly get proactive in trying to stop it, if it tried oil and gas cases, banking senous Issue. is unauthorized practice of law, or if cases, he tried commercial cases. He And it's not one we ask for, it's it is a violation of our ethics? Or, tried will contests, he tried employ­ one that's moving upon us of its own should we approve it and make our ment. He tried tax cases. In addition force. There are MOPs proliferating rules more flexible, but shape it and to that, he did estate plans and trusts, around the world, he said. And there direct it. Those are the questions. oil and gas opinions. He was in our is a very very substantial movement Those are the issues." tax law section. He did real estate in this country, primarily in the tax transactions. He was truly omnivo­ area, by the big accounting firms Past President Gene W. Lafitte rous as a lawyer." hiring hundreds, hundreds, hundreds introduced Lester Munson, Senior of lawyers. And the rationale for that Writer and Associate Editor of "We - the profession, we - are being permissible under our current Sports Illustrated Magazine by say­ confronted today with an issue which regimen is that it is not the practice of ing that Mr. Munson had practiced many believe is the most serious and law. Well, it's debatable whether or law in Chicago as a personal injury important one the profession has not it's the practice oflaw. lawyer for some 17 years. faced in this century," Mr. Paul said. "The reason the role ofthe Ameri- (Continued on page 5) 5 THE BULLETIN

(Continued from page 4) fumbled his way through the argu­ Meeting. A graduate of Princeton Univer­ ment and one was masterly. Judge Niemeyer, a Fellow of the sity, where he was editor of The "Is this too complicated for you?" College, was awarded the Special Princetonian, the school newspaper, Mr. Munson asked. "You want me to Merit Citation ofthe American Judi­ Mr. Munson worked as a journalist go through this again? See, there are cature Society for his efforts in in the Chicago area for three years lessons you can learn here." rewriting the rules of civil procedure before going to law school at the Continuing, Munson said, "Now, in Maryland. He was elevated to the University of Chicago. He then it works both ways." He showed a United States Court of Appeals, joined his father in the practice of cover with Michael Jordan in a Fourth Circuit, Baltimore, Maryland law. In 1989 he returned to journal­ Chicago White Sox uniform. "Look by President Bush after serving only ism in the publication of a Chicago what it says here. 'Bag it Michael. two years as a United States district area sports newspaper. With Sports Jordan and the White Sox are embar­ court judge. Illustrated, Mr. Lafitte said, "He rassing baseball." He said his editor In 1996 Judge Niemeyer became specializes in investigative work and at the time decided that was going to chairman of the Advisory Committee in legal issues involving sports - be the headline on the cover of Sports on the Federal Rules of Civil Proce­ things like strikes and lockouts and Illustrated. dure for the Judicial Conference. anti-trust litigation in sports- financ­ Munson said, "It surprised a lot of ing of stadiums, gambling of profes­ us because inside the magazine was Judge Niemeyer traced the history sional and amateur athletes, allega­ an article that said Michael was do­ of civil rules to the Magna Carta and tions, disciplinary actions involving ing pretty well at baseball. But the said that in the 1930s lawyers and sports illuminaries." editor thought this was kind of cute. academics, "demanded discovery as Keep in mind we are Sports Illus­ an adjunct to this process." He Using a slide presentation, Mr. trated; this is Michael Jordan. We quoted a University of Michigan pro­ Munson displayed a story in Sports like to think we are pretty good at fessor ofthe time who argued, "False Illustrated. The story told of a case producing a magazine and Michael and fictitious causes and defenses where one lawyer in a criminal case Jordan is the greatest athlete in the thrive under a system of concealment "Fumbled his way through a closing history of team sports. and secrecy in the preliminary stages argument" while the "local prosecu­ "What is Michael's reaction to of litigation, followed by surprise tor was masterly - I think we in­ this cover? Not once since that cover and confusion at trial." vented that word for this article - in has he talked to one of us from Sports From this national debate was his presentation," he said. Mr. Mun­ Illustrated. We put this guy on the born the Federal Rules of Discovery, son also said he called the defense cover 41 times. Several times after "which the Supreme Court thereafter counsel in the case 30 times to talk this, when he returned to basketball. directed were to be accorded a broad about the trial. He faxed in letters Not once would he give us an inter­ and liberal treatment," according to and called partners of his with whom view. And believe me, an .interview Judge Niemeyer. he was acquainted. with Michael Jordan is an item of He cited a 1991 report of the ''Not once did I ever get a call­ value in sports journalism. President's Council on Competitive­ back, nor did my colleagues get a "The moral of the story is, if ness that claimed the judicial system callback," he said. "It's as if we did somebody like me - it could be the had become burdened with excessive not exist." The prosecutor, he said, local paper, it could be a radio sta­ costs and long delays. One of the would call him back ten minutes after tion, television - calls you, call back. chief culprits discussed in the report he had called him. What did the pros­ You don't have to say anything, just was discovery, he said. The report ecutor tell him about the case? call back. Calyrtg back is going to also stated that "Over 80 percent of "Absolutely nothing. Absolutely help you." the time and costs of a typical law­ nothing, because the rules are the suit involves pre trial examination of rules and he can't. But, given that Retiring Regent Anthony Murray facts through discovery." posture it was very easy for the three introduced The Honorable Paul V. Noting that there have been prevt­ of us doing this article to say one Niemeyer to Fellows at the Annual (Continued on page 9) THE BULLETIN 6 The President's Report

/ "Tonight, the portals of the · American state and every Canadian American College of Trial province. Fellowship status was not, Lawyers are again open to for Gumpert, to be earned on the receive into Fellowship •.. " basis of professional excellence alone; then, as now, to move from t the end of my first month candidacy to Fellowship required A as President of the College­ not only unquestionable trial skills, in Portland, Oregon - I had the but ethical standards and contribu­ Michael E. Mone gratifying experience of inducting a tions to the candidate's local com­ President new Fellow into the College. The munities which met the same stan­ induction ceremony took place at the dards. While trial practice has cer­ ike Mone is a partner in annual dinner of the Oregon Fellows tainly changed in the 50 years since M the Boston law firm of in order to welcome a new Fellow Gumpert's ideas were put into prac­ Esdaile, Barrett & Esdaile. He is a whose illness threatened to preclude tice, his standards and his idea of a plaintiff's attorney whose litigation her from traveling to future meetings unique fellowship of trial lawyers practice is heavily influenced by of the College for induction. Recog­ are as relevant today as they were product liability, medical malprac­ nizing the qualifications required for 50 years ago. tice, aviation and insurance law Fellowship, appreciating the per­ We are literally surrounded by cases. sonal qualities and professional abil­ proof of the correlation between the Listed in every edition of "The ities that Fellowship is intended to solidity of an idea's foundation and Best Lawyers in America, " he has recognize, and remembering the its endurance. As a homely example, been a Regent of the American Col­ honor I felt on the occasion of my many of the basic rules governing lege ofTrial Lawyers since 1995. own induction, I found it a pro­ baseball today include regulations After serving as Secretary and foundly moving experience to ad­ setting out the relative locations of President-Elect, he became the 5dh dress the induction charge to a single home plate, the pitcher's mound, President of the College in October inductee who has earned the right to and the bases that were established 1999. call herself a Fellow of the College. over 150 years ago. Over the ensu­ Mr. Mone served on the Na­ Reading Emil Gumpert's words ing decades, despite enormous tional Board ofGovernors ofthe that evening, I had an opportunity to changes in the size, strength, and '------­ reflect on his eloquent articulation of speed of the athletes training and Gumpert's ideas and his standards his vision of the College and of its competing under these rules, the lay­ have had a similarly positive effect purpose. I was not alone. Following out of the diamond has remained on those "playing" under them, and the induction ceremony, a number of exactly the same as it was in 1846 having guided us for 50 years, can Fellows told me what a rewarding when Cartwright's rules were first be expected to continue to inspire us experience it was to hear the charge formulated. Rather than limiting the to rise to future challenges. again under such special and unique competition conducted under them, This idea of celebrating experi­ circumstances. As the College enters these rules have stimulated it. To­ ence as an example for further future its 50th year, I am mindful of how day, it is at least as hard to hit in the accomplishment is to me particularly well Emil Gumpert's idea and vision major leagues as it was when the appropriate as we celebrate the 50th has stood the test oftime. game started. The distances have anniversary ofthe College. The 50th Gumpert conceived of the Col­ stood the test of time, and have anniversary festivities will culminate lege as a means of recognizing and encouraged those who play accord­ at our annual meeting in Washing­ organizing the premier practitioners ing to the rules establishing them to ton, D.C. in October 2000. This of all aspects of trial law from every greater achievement. In the College, (Continued on page 7) 7 THE BULLETIN

(Continuedfi'om page 6) state or province ... " Portland, Oregon's Bar found it nec­ Association of Trial Lawyers of essary to investigate certain trial tac­ America and was President of the Over the last year, as Margie and tics used by its malpractice insurer in Massachusetts Academy ofTrial I have traveled and met with Fellows defending cases in Oregon. The pres­ Attorneys. He served as President of all over the United States and ident of the Bar, responding to the the Massachusetts Bar Association Canada, I have been consistently im­ public criticism of the insurer's ap­ in 1993. In 1994, he completed a pressed by the warmth and sincerity proach to this problem, desired an jour-year appointment on the Mas­ with which we have been received by impeccable panel to investigate and sachusetts Board ofBar Overseers the wonderful people who are Fel­ report to the Bar and the public. He and also served on the Joint Bar lows of the College. The late Tip announced that he would ask five Committee on Judicial Appoint­ 0 'Neill, Former Speaker of the Fellows of the American College of ments. House in Massachusetts, explained Trial Lawyers, an organization that He was appointed by Governor his profession by saying, "all politics he held in the highest regard, to in­ Dukakis in 1987 to serve on the Ju­ is local." . For all its international vestigate those charges and make dicial Nominating Committee. He stature, the American College of that report. A panel was chosen from has represented judges and lawyers Trial Lawyers is just this type of among our Fellows and they are in disciplinary cases and was ap­ "local." It is each of the individual working with the Oregon Bar to in­ pointed by the Supreme Judicial Fellows, whether from the largest vestigate this matter of utmost public Court to act as Special Counsel to city or the smallest town, who unite importance. These two recent events the Commission on Judicial Con­ together their strength and integrity to showcase the twin strengths of the duct to investigate a judge. form the fabric of the trial Bar of our American College of Trial Lawyers: A graduate ofMiddlebury Col­ two nations. our ability to think and act as an lege, he obtained his J.D. from Two events last year underscore international organization, and our Boston College Law School in 1967 for me the regard in which the Col­ simultaneous ability to rely on the and was awarded an Honorary lege is held by non-Fellows: an honor personal qualities of integrity, skill, Doctor ofLaw from Suffolk Univer­ bestowed on us in Naples, and a and reputation of each of our Fel­ sity in 1999. request made of us in Oregon. Last lows. Mike and Margaret Mane have spring, as I prepared for the meeting one son, Michael, who was an As­ in Naples, I hoped to include as a " ...This organization will be · sis tan~ District Attorney and is now speaker a member of the House's further advanced by the applica­ in private practice in Mas­ Judiciary Committee, Representative tion of the rare qualities and sachusetts. D Asa Hutchinson of Arkansas. As part virtues which nature, fortune and ------' of my communications with the Con­ laborious days have bestowed gressman's staff, I sent a list of the upon you." (Continued from page 6) Arkansas Fellows to Mr. Hutchinson golden anniversary is an appropriate as a reminder of Arkansas' represen­ Being a trial lawyer has always opportunity for the Fellows of the tation on our roster. Very shortly required enormous personal commit­ College to remind ourselves of the after this list winged its way to ment, but in talking with Fellows immutable value of maintaining the Washington, I was the happy recipi­ around the country, I detect fear of highest standards of quality and ent of Congressman Asa Hutchin­ change. Time and again, I have lis­ ethics, despite - and perhaps because son's acceptance of our invitation. I tened to Fellows' observations on the of- the inevitability of change in our am confident that Mr. Hutchinson's changes in trial practice as we know lives, in our practices, and in the law acceptance was' prompted in large it, and concerns that trial lawyers· are itself. part by his recognition of the College - perhaps - a dying breed. I do not as including the leaders of the trial subscribe to this belief; as history "By your ability, learning and bar in the State of Arkansas. shows, lawyers are flexible creatures character you have added luster to who have survived greater demon- the legal and judicial annals of your This Fall, just before I visited (Continued on page 8) THE BULLEI'IN 8

President's Report together a wonderful program that ACTL Fellows will include addresses by the Chief (Continued from page 7) Justice of the Massachusetts Appointed strations of the plasticity of the law Supreme Court anlif the President of than those we see today. Looking To The Bench the Canadian Bar Association, and a back 100 years, I find precursors to panel on the challenges . ~f today's trial lawyers' furrowed The College is pleased multi-disciplinary practice. Mam m brows on past leaders of the Bar to announce the following the early spring is beautiful; I hope concerning changes not only in trial judicial appointments that many of you will be there to practice, but change in the composi­ celebrate what Gumpert referred to ofFellows. tion of the Bar as new immigrants as "keenest delight in exalting our The Honorable Raymond C. became educated and began appear­ friendships." Fisher, former Assistant Attorney ing in court. Put simply, trial practice This year's celebration will con­ General, was recently appointed survived and flourished because it tinue in Washington, D.C. in Octo­ Judge to the U.S . Court of Appeals was basic to the American system of ber when the College will gather to for the Ninth Circuit, Pasadena, Cali­ justice; it is no less essential today. celebrate its 50th anniversary. Spe­ fornia. Changes will occur, but whether it cial events include a reception at the is alternative dispute resolution, The Honourable Mr. Justice Paul Library of Congress, a morning pro­ jury trial experiments, or Lamek was recently appointed to the gram on the history of the College - multi-disciplinary practice, we Superior Cqurt of Justice, Ontario, which will include the distribution of need not fear them as long as we Canada. the newly publicized history of the adhere to our values and continue to College - and other wonderful Barbara M.G. Lynn of Dallas, use our skills in the representation of speakers. On Saturday morning Pro­ Texas was recently appointed Dis­ I our clients. Concern is a constant •I fessor Walter Dellinger will moder­ trict Judge for the Northern District companion to change- 50 years from ate a discussion with the Chief Jus­ ofTexas, Dallas Division. now another president will preside tices of the United States, the United over our 1OOth anniversary, and I am The Honorable David A. Kingdom and Canada. All of these sure that he or she will hear members McLaughlin of New Bedford, Mas­ chief justices are Honorary Fellows lament about the good old days and sachusetts was recently appointed of the College. We have invited all of how times have changed - but fear Associate Justice, Superior Court our living Honorary Fellows to at­ need not be. The College will be Department of the Trial Court of the tend the meeting to participate in our strong, and the practice of law will Commonwealth of Massachusetts. anniversary celebration that will cul­ remain vigorous and exciting as long minate on Saturday evening at a The Honourable Mr. Justice as we are able to keep Emil banquet in honor of the Supreme Richard Nadeau of Montreal, Que­ Gumpert's vision of ethical and skill­ Court of the United States. I hope as bec was recently appointed Judge of ful practice alive. many Fellows as possible will come the Superior Court of Quebec Palais to Washington to reflect on our past, de Justice, Montreal, Quebec. "And so, we like to look upon celebrate our present, and look to the The Honorable Paul Noland of these gatherings, not only as future ofthe College. regular meetings of the Fellows, Wheaton, Illinois has recently been where we may with utter freedom recalled to service, Circuit Court of "Long and happy may be our the 18th Judicial Circuit, DuPage and equanimity go from labor to years together." 0 repose." County, Illinois. The Honorable T. John Ward of This year the College will meet at Tyler, Texas was recently appointed the Ritz Carlton in Maui from March U.S. District Judge for the Eastern 16 through March 19. District of Texas. 0 President-Elect Earl Silbert has put 9 THE BULLETIN

49th Annual Meeting • almost all lawyers favored the scope into two parts - attorney man­ elimination of local rule options; aged discovery and court managed (Continued from page 5) • the belief was almost universal discovery. Under the change, attor­ ous unsuccessful efforts to curtail the that discovery costs could be re­ neys can request and routinely re­ expansiveness of discovery, in 1997 duced by greater judicial involve­ ceive information relevant to claims the College proposed an amendment ment, and the earlier the better; and defenses in the action. And only to Rule 26. Instead of gearing rele- • lawyers representing defendants the court - for good cause - can vancy for discovery purposes to the felt that a relaxation of the waiver authorize discovery for information subject matter of litigation, the of attorney-client privilege rules relevant to the subject matter. This American College's proposal in­ for limited purpose of discovery proposal was also controversial, tended to gear relevancy to a specific would significantly lessen the passing with 12 for and 11 against. claim or defense in the litigation." costs of discovery; The third proposal was defeated In 1996 Judge Niemeyer engaged • the data clearly confirmed that by a vote of 15 to eight. It would the Civil Rules Committee of the early discovery cut-off dates and have involved the power of the court Judicial Conference to look at the confirmed trial dates were the best in conditioning disproportionate dis­ entire discovery issue. court management tools for reduc­ covery on the payment of costs. The committee went to great ing the costs of discovery; The final change would amend lengths to gain information, including • and 83 percent of all attorneys Rule 30(d) to establish a presumptive conferences of plaintiff and defendant polled by the Federal Judicial Cen­ time limit for depositions to one lawyers, asking national legal groups ter wanted some change in discov­ seven hour day. "While the proposed to make responses, and conducting ery rules. rule does not establish a fixed time studies to collect empirical data. The The committee eventually selected limit, it establishes a presumptive - Federal Judicial Center conducted a a half dozen changes they felt would time limit that either the parties or the national survey of lawyers and the receive the most support and provide court can modify, ''he said. This pro­ RAND Institute for Civil Justice re­ the greatest balance. Other hearings posal passed with 22 in favor without viewed its data on discovery. were held and additional comments a count taken of those opposing it. From these activities the commit­ received. The proposal went through These proposals approved by the tee learned: the Standing Committee of the Judi­ Judicial Conference will be presented • no one wanted to eliminate full cial Conference with minor changes to the Supreme Court to be consid­ disclosure of relevant informa­ and sent to the Judicial Conference. ered by the Court at conference. If tion; The debate at the Judicial Confer­ the Court approves them, the • nearly 40 percent of the federal ence centered on four rules. The first Supreme Court is required to trans­ cases do not use discovery and centered on Rule 26(a), the manda­ mit the rules to Congress by May 1, that it is used for three hours or tory disclosure rule. The proposal 2000. Congress then has seven less in another 25 to 30 percent of narrowed the requirement of disclo­ months within which to pass a law the cases; sure to matters that only support vetoing the changes. If Congress fails • in cases where discovery was ac­ claims in defense, excluding eight cat­ to act by December 1, 2000 the tively used it was thought by both egories of cases. But the proposal also changes will become law. p lainti:ff' s and defendant's would eliminate the right of district Judge Niemeyer concluded by lawyers to be unnecessarily ex­ courts to opt out. "While lawyers saying, "I have come to learn that pensive and burdensome; · support this, district judges have al­ more substantial changes to the civil • the data revealed that the costs of most uniformly opposed it," Judge rules are now most difficult and the discovery overall represents about Niemeyer said. lfhe proposal carried · committee must be satisfied with tak­ 50 percent of litigation costs; by a very narrow vote of 13 for and ing small changes and then only when • in particular cases where discov­ 12 against. supported by empirical data and by ery was actively employed it rep­ The second change involves Rule broad political support." 0 resents as much as 90 percent of 26(b)1, defining the scope of discov­ the costs of litigation; ery. The proposal divides the current THE BULLETIN 10 New Fellows Inducted During 49th A-,nual Meeting Philadelphia

The College welcomes the Michael I. Neil ILLINOIS KENTUCKY following Fellows who San Diego Stanley V. Boychuck were inducted into David Alan Friedman Chicago Fellowship during the COLORADO Louisville 1999 Annual Meeting Patrick J. Burke William J. Burke LOUISIANA in Philadelphia. Denver Chicago Troy E. Bain Raymond P. Moore John T. Coleman Shreveport ALABAMA Denver Chicago Lawrence S. Kullman Fred D. Gray Jerry B. Tompkins D. Cameron Dobbins New Orleans Tuskegee Grand Junction Champaign W. Shelby McKenzie John N. Leach, Jr. DELAWARE James R. Figliulo Baton Rouge Mobile Chicago Richard E. Poole MARYLAND Scott A. Powell Wilmington Richard D. Gaines Birmingham Rockford M. Dean Jenkins DISTRICT OF Ocean City ARIZONA Steven J. Harper COLUMBIA Chicago MASSACHUSETTS -) Ron Mercaldo Rita M. Bank Tucson John W. Kozak John D. Cassidy Washington Chicago Boston William H. Sandweg III GEORGIA Phoenix AI J. Pranaitis Steven L. Hoffman Robert L. Berry Alton Newton Robert E. Schmitt Rome Prescott Richard E. White Frances A. Mcintyre Philip C. Henry Murphysboro Somerville NORTHERN Atlanta Elizabeth N. Mulvey CALIFORNIA INDIANA Daniel S. Reinhardt Boston James R. Oppliger Lance D. Cline Atlanta MINNESOTA Fresno Indianapolis HAWAII John M. Degnan Russell G. Porter IOWA Minneapolis Sacramento Wayne Kamal Kekina David A. Elderkin SOUTHERN Honolulu Cedar Rapids Peter Scott Hendrixson Minneapolis CALIFORNIA IDAHO John M. French Council Bluffs Lewis Remele John D. Barnett David Z. Nevin Minneapolis Orange Boise Thomas D. Hanson Des Moines Peter Thompson Karl A. Keener Jerry V. Smith Minneapolis Santa Monica Lewiston Thomas J. Shields Davenport Robert A. Long P. Craig Storti Los Angeles Boise 11 THE BULLETIN

MISSISSIPPI UPSTATE PENNSYLVANIA VERMONT NEW YORK Howard Dyer III James A. Dattilo S. Crocker Bennett, II Greenville Donald L. Schoenwald Pittsburgh Burlington Syracuse David W. Mockbee Richard H. Galloway WASHINGTON Michael R. Wolford Greensburg Jackson Tom Chambers Rochester MISSOURI Clifford E. Haines Seattle NORTH CAROLINA Philadelphia William J. Lasley WEST VIRGINIA Donald H. Beskind James T. Marnen Carthage Patrick S. Cassidy Raleigh Erie MONTANA Wheeling Robert W. Spearman Dennis St. J. Mulvihill Keith Strong Raleigh Pittsburgh WISCONSIN Great Falls James T. Murray, Jr. NORTH DAKOTA Daniel J. Sherry NEBRASKA Newtown Square Milwaukee Richard H. McGee II Marie A. Stanton Lee Kovarik Minot Barry E. Ungar Gering Philadelphia Green Bay • Jane C. Voglewede Robert W. Mullin Fargo PUERTO RICO ALBERTA Scottsbluff John J. Marshall, Q.C. OHIO Raul Davila-Rivera Calgary NEVADA San Juan R. Eric Kennedy John Martland, Q.C. Keith E. Galliher, Jr. Cleveland SOUTH CAROLINA Las Vegas Calgary Joseph W. Shea III John P. Linton Edward H. Molstad, NEW HAMPSHIRE Cincinnati Charleston Q.C. Michael R. Callahan Sam B. Weiner SOUTH DAKOTA Edmonton Concord Columbus Edwin E. Evans ATLANTIC DOWNSTATE R. Gary Winters Sioux Falls PROVINCES NEW YORK Cincinnati TENNESSEE Michael F. Harrington, Lawrence Jason OKLAHOMA Q.C. A C Wharton Jr. New York St. John's Jack E. Gordon Jr. Memphis Mark F. Pomerantz Claremore BRITISH COLUMBIA New York TEXAS OREGON J. Edward Gouge, Q.C. George H. Spencer, Jr. Paul C. Saunders Vancouver New York Martha Lee Walters San Antonio Eugene ONTARIO Stephen P. Scaring Garden City Chris G. Paliare Toronto THE BULLETIN 12 ACTL Calendar of Events

february 24-27 April 26-May 1 2ooo· North Carolina Fellows Annual Southwest Regional Meeting Meeting The Inn at Spanish Bay January 15 The Cloister Pebble Beach, CA Maine Fellows Dinner Sea Island, GA May4-7 Portland Country Club February 25 DNY, CT & VT Regional Meeting Falmouth, MA Northern California Fellows Elbow Beach Hotel January 21 Annual Dinner Bermuda Northeast Regional Meeting St. Francis Yacht Club May 12 Four Seasons Hotel San Francisco, CA Southern California Black Tie Dinner Boston, MA February 25-26 California Club January 21-23 Gale Cup Moot Competition Los Angeles, CA Emil Gumpert Award Committee The Great Hall at Osgoode Hall May 18-21 Meeting Toronto, ON Oklahoma Fellows Meeting Windsor Court February 29 St Francis Hotel New Orleans, LA Eastern Pennsylvania Sante Fe, NM January 28 Fellows Dinner June 2 Upstate and Downstate NY Fellows TBD Minnesota Fellows Golf Outing Breakfast Meeting March 3-4 and Dinner The Sky Club ., Sopinka Cup National Trial Minikahda Club New York, NY Advocacy Competition Minneapolis, MN February 3 Courthouse in Ottawa June 2-4 Final Rounds National Moot Court Ottawa, Canada Arizona Fellows Meeting Competition March 12-16 Hacienda Del Sol Resort The Association of the Bar Board of Regents Meeting Tucson, AZ of the City of New York The Halekulani New York, NY June9 Honolulu, HI Georgia Fellows Black Tie Dinner February 4 March 16-19 Atlanta, GA Virginia Fellows Annual Dinner ACTL Spring Meeting June 16-18 The Comonwealth Club The Ritz Carlton Richmond, VA Northeastern Regional Meeting Kapalua, Maui, HI Cranwell Resort and Golf Club February 17-20 March 30-April 1 Lenox, MA Tri State Meeting National Trial Competition The Cloister June 20 TBD Minnesota Fellows Meeting Sea Island, GA Dallas, TX February 18-19 April13-16 July 23-25 Arkansas Fellows Meeting AR, LA, MS & TX Regional Meeting Northwest Regional Meeting Inn at the Mill Fairmont Hotel Chateau Whistler Resort Johnson, AR New Orleans, LA Whistler, BC, Canada February 24-27 April20 August 11-13 South Carolina Fellows Annual Alabama Black Tie Dinner Iowa Fellows Meeting Meeting Country Club of Birmingham TBD The Cloister Birmingham, AL Sea Island, GA • 13 THE BULLETIN • Canadian Supreme Court Justice Frank Iacobucci August 20-23 Receives Honorary Fellowship Canadian Bar Association Meeting Convention Center Halifax, NS ast President Frank C. Jones Toronto. The Center holds a yearly presented an Honorary Fel­ conference, publishes an annual jour­ September 17-23 P lowship in the College to Justice nal and is in the process of creating Anglo-American Exchange an archive for the documentation of Washington, DC Frank Iacobucci of the Supreme Court of Canada during the Annual the Italian experience in Canada. October 22-25 Meeting in Philadelphia. Noting that the College has estab­ Board of Regents Meeting In presenting that Fellowship, Mr. lished the Sopinka Cup as an annual J W Marriott Jones said, "Only those persons who advocacy award for Canadian law Washington, DC have attained a high degree of respect students, Justice Iacobucci said, "It is October 26-29 and imminence in judicial or other just amazing to me to witness the ACTL Annual Meeting roles in the profession, or in public generosity and support, and if I may J W Marriott service, are eligible to election as an say so - the humanity - of this Col­ Washington, DC Honorary Fellow of the American lege that has been extended to one of College of Trial Lawyers." my country's great jurists who loved 2001 During the 1960s Justice Ia­ this College greatly." cobucci practiced law in New York "I first heard of the American • March 25-28 City. In 1967 he became a member of College of Trial Lawyers some 45 Board of Regents Meeting the faculty of the law school of the years ago from a great Canadian Boca Raton Resort & Club University of Toronto. Over the years lawyer and an early Fellow of the Boca Raton, FL he has served that University as pro­ College in the 1950s," he said. He fessor, associate dean, and dean of the told of Leonard St. Martin Du­ March 29-April 2 ACTL Spring Meeting law school and as vice president and Moulin, who "was a great influence Boca Raton Resort & Club provost of the University. on me, such that his support, inspira­ Boca Raton, FL He served as Deputy Minister of tion and guidance largely explain my Justice and Deputy Attorney General presence here today. His example as May 3-6 for Canada for three years in the a lawyer and citizen have greatly Tenth Circuit Regional Meeting Ritz Carlton 1980s. In 1988 he was appointed shaped my professional life." Kansas City, MO Chief Justice of the Federal Court of In accepting the Honorary Fellow­ Canada and in January 1991 he was ship ofthe College, Justice Iacobucci July 29-31 appointed to the Supreme Court of said, "Today I feel so honored to be Northwest Regional Meeting Canada, where he now serves. joining the College of which my men­ Grouse Mountain Lodge Whitefish, MT In 1988 the Frank Iacobucci Cen­ tor and legal guardian angel was a ter for Italian-Canadian Studies was proud member." D October 14-17 established at the University of Board of Regents The Ritz Carlton New Orleans, LA October 18-21 Annual Meeting The Ritz Carlson New Orleans, LA THE BULLETIN 14

Second Year In A Row year President Ayscue acted as the presiding judge of the final round and Temple University Law School , 15 ACTL Fellows acted as the jury for the final competition." Jurors were Wins 1999 National Trial Competition from the National Trial Competition Committee, chaired by James J. Vir­ emple University School of ple and Loyola. tel. T Law was presented with the "Each year the College assists Each finalist receives the Lewis F. Kraft W. Eidman Award for winning with the funding and provides judges Powell Medalion, struck in the honor the 1999 National Trial Competition for the competition and jurors for the of Justice Powell, who is a past presi­ at the ACTL Annual Meeting in fmal trial," Mr. Gundlach said. "This dent of the College. 0 Philadelphia. Michael Lovell and Amber Van Hauen of Temple University were recognized as the winning team. The . Eidman Award consists of a $5,000 award and a revolving trophy. Each member of the winning team also receives a plaque and a permanent plaque is given to the law school. The Houston firm of Fulbright & Ja­ worski funds the award. This is the second year in a row that Temple has won the competition, although this is the first time for this • team. Final rounds of the competition were held in San Antonio, Texas in March 1999. ACTL is a major spon­ Margaret Stevens, Regent Frank Gundlach, Michael Lovell, sor of the competition, which is pre­ Amber Van Hauen and ACTL then President Osborne Ayscue sented annually by The Young during the awards ceremony in Philadelphia. Lawyers of Texas. Considered the premier law school competition in the he George A. Spielberg commitment to law students, to the nation and the largest of its kind, it T Award for Best Oral Advo­ art of advocacy. This has been an attracts more than 200 teams and cate was presented to Margaret P. extraordinary opportunity, not only involves more than 1200 law stu­ Stevens of Loyola Law School. to be in the competition, but also to dents. Speaking in behalf of all participants meet the judges, to meet our associ­ In presenting the award, Frank N. in the National Trial Competition, ates and fellow associates from law Gundlach, Region Liaison to the Na­ Ms. Stevens said, "I think if you ask schools. Your commitment to this tional Trial Competition Committee, any of the participants that were in profession and the dignity and the noted .that 24 teams from across the the National Competition they would excitement that is present in this United States emerged from regional thank you, they would thank their room, and has been present in all the competition to participate in the fi­ coaches, they would thank their team­ events, really is very inspiring. It nals. Semi-finalists were from the mates, friends and family - who warms the heart of this young Turk law schools at Wake Forest, George­ haven't seen them very much until to know that· it is such a welcoming town, Temple and Loyola in Los after graduation from law school. I profession. I'm very excited to be on Angles. The finalists were from Tern- want to thank you as well for your this journey. Thank you." 0 15 THE BULLETIN

put on the agenda. Immediate Thus, the proposed narrowing of Rule 26 to require civil discovery to Past President's Report focus on the issues actually pre;. sented by the claims and defenses asserted in a case, instead of the t has been almost fifty years Suggesting in a Past President's broader "subject matter" limitation, since Emil Gumpert, the Report that any ofthese activities had I is winding its way through the sys­ founder of the College, first con­ its genesis and came to fruition in any tem. It has been approved by the ceived of it. We know that his idea one year would be misleading. Much Civil Rules Subcommittee and by the was to identify and invite into fel­ of what we do is the product of the Judicial Conference and it is now lowship the best trial lawyers, not ideas and the efforts of many people pending before the United States to be a bar association, not to have over time. Furthermore, the College Supreme Court. That change is the an all-encompassing agenda, but traditionally chooses to speak or act product of your committee's work. principally to enjoy one another's only when it feels that it has a unique We continue to try to convince the fellowship . We know, however, contribution to make, so that the ac­ Judicial Conference that a jury of that what has evolved over the en­ tivity level of various ones of our less than twelve is a failed experi­ suing forty-nine years from this committees may vary from year to ment. Our committee is currently germ of an idea in one man's mind year. working on a paper on that subject. is one of the most respected legal I would categorize our recent and Our Federal Criminal Procedure organizations in the western world. current activities as follows : Committee, under the leadership of It is respected because it is com­ Robert W . Ritchie of Knoxville, posed of lawyers carefully chosen, Public service Tennessee, prepared a superb pro­ ~ not only for their ability and Our Access to Justice Committee, posal, supplemented by a monograph ~ achievements, but also for personal under the leadership of chairman that was both scholarly and practi­ standards of professional excel­ Daniel F. Kolb of New York City, cal, to change the federal sentencing lence, integrity, ethics, profession­ has been progressively setting up a guidelines so that downward depar­ alism and collegiality. network of Fellows in each state who tures in sentences for cooperation The College is known as an or­ are willing to consider taking on rna­ with the prosecution are not under ganization whose principal agenda jor pro bono cases of the kind that the sole control of the United States is preserving the best of the tradi­ call for the talent and experience typ­ Attorney. Our proposal would allow tions and traditional values of our ical of Fellows of the College, cases either the judge or the defendant, profession. Progressively, as the that can have a maJor impact on both of whose hands are now tied, to College has chosen to speak, people many lives. raise this issue. Distribution of that have listened. We have become monograph has generated a positive known as a group of lawyers, Improvement of our system ofjustice response from many quarters. drawn from all segments of the trial A good example of this kind of A year or so ago our Federal bar to whom those who make the effort is that of our Federal Civil ' Rules of Evidence Committee, decisions that affect the justice sys- Procedure Committee, led by Robert chaired this year by Fletcher L. tem can look for advice and to S. Campbell Jr. of Salt Lake City, Yarborough of Dallas, Texas, pro­ whom they can listen without wor­ which is asked by the Civil Rules duced a monograph on the standard rying about whether we have some Subcommittee ofthe Judicial Confer­ of evidence to be used in sentencing private, parochial agenda. ence of the United States to comment hearings, suggesting a way to correct In recent years, partly because on each proposJd change to the Fed­ a manifest unfairness in the present we have been asked, partly because eral civil rules. Furthermore, when sentencing procedure. That commit­ we see things we are uniquely posi­ our Committee calls to the attention tee is currently monitoring and com­ ~ tioned to address, our level of activ­ of that subcommittee some rule that menting on proposed changes in the W' ity has increased greatly. it feels needs to be reexamined, it is (Continued on page 16) THE BULLETIN 16

(Continued from page 15) programs of the National College of a recipient who will be honored at the Federal Rules of Evidence. District Attorneys. The committee Annual Meeting in October 2000. A year or so ago, our Attorney­ that coordinates this activity was Our Samuel E. Gates Litigation Client Committee filed an amicus chaired this year by John L. Hill, Jr. Award from time to time honors a brief in the Vince Foster matter, ask­ ofHouston, Texas. i lawyer who has made a significant ing the Supreme Court to grant a writ contribution to the improvement of of certiorari, which it did, and to Preserving the traditions of the pro­ the litigation process. This year the overrule, which it did, the ruling of fession nominee of the committee, chaired by the District of Columbia Court of Our Professionalism Committee, Sylvia H. Walbolt of St. Petersburg, Appeals that the attorney-client privi­ under the chairmanship of Eugene A. Florida, was Judge Dorothy W. Nel­ lege dies with the client. Cook of Houston, Texas, has worked son of the Ninth Circuit Court of Maintaining the College's long­ on a collection of the stories of the Appeals, who was honored at the standing position that government lawyers who were involved in found­ Spring meeting. lawyers should not be exempt from ing our nation. It has also helped The Committee on Honorary Fel­ state ethical rules precluding contact supervise the Foundation's annual lowship, chaired by Past President with opposing parties represented by law student essay contest on profes­ Robert L. Clare, Jr., recommends . counsel, that committee, chaired this sionalism. outstanding members of the highest year by David Marion of Philadel­ Several · years ago our Legal courts of the United States, Canada phia, has been monitoring proposed Ethics Committee produced the Col­ and Great Britain for honorary fel­ changes to Rule 4.2 of the Model lege's revised Code of Trial Conduct lowship in the College. We inducted Rules of Professional Conduct, the and, later, the well-received mono­ Sir Sidney Kentridge, a former provi­ rule that articulates that principle. graph on the handling of high-profile sional member of the Supreme Con­ The Canada-United States Com­ trials. This year, under the leader­ stitutional Court of South Africa mittee, chaired this year by Earl A. ship of John H. McElhaney of Dallas, who has been described as a ''jewel Cherniak, Q.C., of Toronto, has Texas, it has been monitoring pro­ ofthe English Bar," as an Honorary adapted the College's Code of Trial posed changes to the Model Rules of Fellow at the Fall 1998 meeting in Conduct to the Canadian system. Professional Conduct. London. We inducted Lord Irvine of That Code has been translated into The Lewis F. Powell, Jr. Lecture Lairg, the Lord Chancellor of Eng­ French, so that it can be published in Committee, chaired this year by past land, as an Honorary Fellow at the both French and English in the next president R. Harvey Chappell, Jr. of post-meeting conference in Rome; College roster. Richmond, Virginia, arranges pen­ Lord Woolf of Barnes, the Master of Our Federal Judiciary Committee, odic lectures in honor of the late the Rolls, the second ranking person chaired this year by Edward W. Justice Powell, a past president of the in the British Judiciary, at the Spring Madeira, Jr. of Philadelphia, has a College, at our national meetings. At 1999 meeting in Naples, and Justice long history of advocacy for im­ the Spring 1999 meeting, the Honor­ Frank Iacobucci of the Canadian proved judicial compensation and for able William H. Webster gave a lec­ Supreme Court at the 1999 Annual judicial independence. The commit­ ture on Justice Powell's service in Meeting in Philadelphia. tee also helps to provide participants World War II. for educational programs for judges. Canada Next year, the State Judiciary Com­ Recognition of the contributions of In addition to drafting the Cana­ mittee, chaired this year by George others dian Code of Trial Conduct and help­ E. Feldmiller of Kansas City, Mis­ Chaired this year by Robert A. ing to institute the Canadian Trial souri, will be combined with the Fed­ Hicks of Atlanta, Georgia, our Advocacy Competition, the Canada­ eral Judiciary Committee to better Award for Courageous Advocacy United States Committee is seeking coordinate our efforts to support our Committee recognizes outstanding ways to implement its proposed Con­ federal and state judiciary. courage demonstrated by trial vention on the Reciprocal Enforce­ An annual grant from the College lawyers in unpopular or difficult ment of Judgments. provides for scholarships to various cases. The committee has identified (Continued on page 17) 17 THE BULLETIN

(Continuedfrompage 16) girds our system of laws and the best Gumpert Award. Members of this To better coordinate the work of of the traditions and traditional val- committee, chaired this year by • the Canadian Fellows, the Canadian ues of the profession. To that end, Thomas J. Groark, Jr. of Hartford, Judiciary Committee, chaired this one ofthe College's major efforts is Connecticut, make site visits to ana­ year by · Roderick A. McLennan, encouraging the proper professional lyze and pick an outstanding law Q. C., of Edmonton, is being merged training of law students and younger school trial advocacy program to rec­ into the Canada-United States Com­ lawyers as advocates. Many of us ognize with this award. This year the mittee. are not aware of the extent of the award went to the University of College's programs that are designed Montana School of Law. International to reach law students, to instill in Last year the College's Founda­ Our International Committee, them a sense of our heritage and to tion, whose chair is Past President chaired by Thomas D. Allen of introduce them to the College as one Lively Wilson, instituted an essay Chicago, has been examining the of the keepers of those traditions. contest on professionalism. We give possibility of a China project. It had We help to sponsor national trial monetary awards to the law student become apparent that the Mexico competitions and national moot court who produces the best paper and to Committee could best function as a competitions in the United States and his or her legal writing instructor, subcommittee of the International Canada. Our National Trial Compe­ and we publish the winning paper in Committee, and these two commit­ tition Committee was chaired this The Bulletin. tees moved in that direction this year. year by James J. Virtel of St. Louis, Many years ago we were instru­ A measure of the respect in which Missouri, and our National Moot mental in establishing NITA, the Na­ the College is held is that we are Court Competition Committee by tional Institute of Trial Advocacy, asked to help organize judicial ex­ Mary Jo White of New York City. which gives young lawyers intensive changes between the United States Teams of law students, often the hands-on experience under expert in­ and Canada, India and the United winners of competitions in their own struction to help develop their trial Kingdom. When such exchanges are schools, compete in regional competi­ skills. • proposed, our Supreme Court looks tions. The winners come to national Our Committee on the Teaching to the College to handle the mechan­ finals, where they compete until a of Trial and Appellate Advocacy, ics and to suggest lawyers who winner is selected. This year for the chaired this year by J. Robert Elster, should participate. Past exchanges first time we co-sponsored the Cana­ of Winston-Salem, North Carolina, with our British counterparts have dian Trial Advocacy Competition, has recently created a user-friendly produced the Inns ofthe Court in the for which we awarded the Sopinka teaching syllabus, designed for use in · United States, the use of briefs in Cup, named in honor of the late presenting programs on civility to appellate arguments in the United Canadian Justice John Sopinka, who law students and young lawyers. Kingdom and the spread of mediation was a Fell ow of the College and then These are materials that can be used in both countries. This year the a Judicial Fellow. For the first time to put on programs involving the College co-sponsored the first half of this year we gave an award to the audience in a discussion of what ci­ an Anglo-American Exchange in Ed­ best oralist in the National Moot vility requires. The syllabus has inburgh and London. The second Court competition in memory of late been enthusiastically received. phase of this Exchange is planned for Past President Fulton Haight. Though most of us are generally September 2000 m Washington, What we have, thus, is thousands aware of these efforts to influence D.C. of law students preparing and trying law students and young lawyers, I a case in a modified mini-trial format suspect that most of us have never Teaching oftrial and appellate or preparing and delivering an appel- had occasion to focus on their signifi­ advocacy skills late argument. ' They learn from the cance in the aggregate. One major agenda of the College Fellows of the College who coach has become preserving both the skills teams and sit as judges, and they Specific problem areas necessary to be an effective advocate learn from one another. The Complex Litigation Commit­ • in the adversary system that under- Each year we give the Emil (Continued on page 18) THE BULLETIN 18

(Continued from page 17) tioned to serve our profession and our meetings have taken on a new impor­ tee, chaired by fonner Regent Ralph system of justice for the next fifty tance. Your president gives atten­ W. Brenner of Philadelphia, has been years. dance at each of these a high priority. at work on a major effort to propose The continued vitality ofthe Col­ And if he cannot attend, he tries to a workable system for dealing with l~ge depends on new thembers. With­ arrange for one of the other officers mass torts. out new blood we cannot perpetuate to provide a national presence. We Our Alternatives for Dispute Res­ the College and what it stands for or know that many Fellows cannot go to olution Committee, chaired by Shaun pass the torch to succeeding genera­ the national meetings regularly. We S. Sullivan of Hartford, Connecticut tions. Your State Committees and want you to know that what you are has been working on a code of con­ Regents work long and hard to iden­ doing and what is on your minds is duct for mediation. tify trial lawyers whose presence important to the College. The Committee on Special Prob­ would enhance, and whose absence We have undertaken to publish a lems in the Administration of Justice, diminishes, the College. fifty-year history of the College in chaired by Edward W. Mullins, Jr. of The Adjunct State Committee, the year 2000. That history, which is Columbia, South Carolina, has stud­ chaired this year by past Regent being professionally researched and ied various experiments with juries Spencer J. Brown of Kansas City, written by authors Marion Ellis and . and proposals to change the jury sys­ Missouri, deals with candidates Howard Covington under the direc­ tem, with an eye towards whether any whose practice is national rather than tion of a committee chaired by Past of these developments calls for the local or who have moved from one President John C. Elam of Colum­ College to take a position. state to another during their careers. bus, Ohio, will be distributed at the Our Coinmittee on Science and One major growing challenge that time of the fifty-year celebration in Technology in the Courts, chaired we face is the changing nature oftrial Washington, D.C. in October 2000. this year by Michael R. Griffinger of practice and the decrease in the num­ Finally, the College could not Newark, New Jersey, has been asked ber of traditional trials taking place. function without the dedication of to consider developing a set of sug­ The Admission to Fellowship Com­ Executive Director Bob Young and gested guidelines for governing the mittee, chaired by Audrey Strauss of his staff. Working out of a small use of computer-generated evidence New York City, has been studying office in Irvine, California and out of in the courtroom. those changes as they affect the avail­ sight of most of us except at our two able pool of lawyers who meet the yearly national meetings, they do the In these and many other ways College's criteria for membership. work required to make the organiza­ your national committees, using your Our Publications Committee, tion function smoothly on a day-to­ dues money, the time and talent of chaired by Sharon M. Woods of De­ day basis. We are very much in their lawyers like you from all over the troit, has been engaged in a continu­ debt. United States and Canada, and your ing study of ways to improve com­ A year ago in London I thanked collective stature to improve the munication with our members. you for the trust you had placed in quality of justice and help maintain The College's website at me and for the opportunity to return the nile oflaw that is the backbone of www.ACTL.com has created a major to our profession a measure of what our civilization. new avenue of communication to I had received from it. In hindsight, The internal workings of the Col­ supplement an expanded and im­ Emily and I cannot have returned lege are also vital to its well-being. proved Bulletin. In addition, the even a fraction of what we carry This past year, as we approached the College office is now accessible by away from this year. The experience fiftieth year of its founding, we began email. The email address is of visiting with all of you in far-flung the process of taking a hard look at [email protected]. To recognize corners of the United States and ourselves, how we are organized and these changes, the committee will Canada, as well as in London and how we function. We want to insure henceforth be called the Communica­ Rome, is one that we will treasure for that the College maintains its stature tions Committee. a lifetime. D · · and its relevance in a rapidly chang­ ing world and that it remains posi- Increasingly, state and regional E. OsborneAyscue, Jr. 19 THE BULLETIN • ACTL Activities

ome 64 State and General New York City." deprive its employees of funding of SCommittee Chairs attended the The committee has also under­ their defense in order to be viewed as Western Workshop in La- taken discussions with the American "cooperating." guna Beach, California with ACTL Corporate Counsel Association and The committee is also considering officers in November for orientation the Litigation Assistance Partnership a proactive effort to analyze recent in the policies and procedures of the Project ofthe American Bar Associ­ encroachments on the attorney-client College. ation which may result in further privilege and ways for the trial bar to President Michael E. Mone ex­ national and regional coordination educate the public and the courts on plained that the Board of Regents between those organizations and the importance of that privilege. A sets budgets, goals and policy and ACTL Access to Justice committees request for the Board of Regents to controls admission to Fell ow ship in in various states. fund a study and position paper on the College. The committee also encourages that subject is in preparation. President Elect Earl J. Silbert Fellows who may be associated with said, "If a committee has nothing to other organizations that could use Following the approval of the do then it ought to be abolished." He pro bono assistance in important Canadian Code of Trial Conduct by also emphasized that the responsibil­ cases to contact committee chair Dan the Regents, steps are underway to ity of State Chairs is to look for Kolb. print and distribute the Code to law qualified candidates. Mr. Silbert also societies, law schools, the judiciary spoke of Employment and Intellec­ The Admission to Fellowship and the profession. The Code, with tual Property law as examples of new Committee is evaluating materials an introduction by Antonio Lamer, areas of trial practice in which the from across the United States and the Chief Justice of Canada, will be • College shouJd be looking to for po­ Canada in an effort to determine printed in the ACTL Roster. tential candidates for Fellowship. He whether there is a declining incidence The Canada-U.S. Committee is also noted the College's tradition of of trials and arbitrations in both state also establishing a liaison with the producing monographs and asked and federal courts. They also want to American and Canadian Bar Associ­ what other kinds of activities the determine whether these trends vary ations with a view to making a joint College should be undertaking. by locale or type of case. This pro­ submission to the federal govern­ On the subject of change, Presi­ ject is central to continuing examina­ ments of both countries to achieve dent Mone said, "The end of any tion of the trial experience required implementation ofthe Draft Conven- · organization is when you begin to of persons nominated for admission tion for the Reciprocal Enforcement say, 'We've always done it this to the College. of Judgments. way'." A cross border judicial committee During the two-day workshop The Attorney-Client Relations has been formed to address the is­ participants witnessed a mock pre­ Committee is studying a recent De­ sues raised in several recent high sentation of potential candidates to partment of Justice guideline for sen­ profile cross border bankruptcies the Board of Regents. tencing of corporations, which con­ where consistent rulings were needed siders as a negative factor a corpora­ in both jurisdictions. The College The Access to Justice Commit­ tion's provision of funding for the has been asked to assist the work of tee reports that "an excellent result defense of "culpable" employees and this committee. has been secured" in one of the first agents. The issue is whether it is The committee is also studying cases undertaken through the Col­ improper or prejudicial to the admin­ the feasibility of pro hac vice cross lege's Access to Justice program . istration of justice for the govern­ border occasional calls to the bar. The case involved, "pervasive, ad­ ment to encourage a corporation to Reciprocity and conditions are • verse conditions in detention cells in (Continued on page 20) THE BULLETIN 20

(Continued from page 19) \. among the key issues. HELP WANTED The Federal Civil Procedure Committee expects to complete a The International Committee is considering the feasibil­ report soon on the significance of the ity of a project aimed at helping to develop fairer judicial twelve-person jury in the federal civil processes in China. Are you interested in participating in such a trial system. The committee is also project? Are you proficient in the Chinese language? Do you reviewing proposed amendments to have some knowledge of its legal system? Do you have the Federal Civil Rules 5 and 6, contacts, either personal or professional, in the Chinese legal dealing with electronic service, and system that you are willing to share? Rule 77 (d) on notice of orders and If so, please respond directly to committee member Joan judgments. Lukey in Boston, phone: (617) 526-6798; fax: (617) 526-5000; The Samuel Gates Award Com­ e-mail: [email protected]. mittee is finalizing a proposal to be submitted to the Board of Regents for projects had made substantial trial lawyers, ACTL Fellow Joe refining the criteria for the award. It progress. Although some of these Jenckes. Each year the Fellows se­ also recently submitted a nomination innovations seem innocuous, others lect the transcript from an act.ual for the award to the Board of Re­ have the potential for causing a dra­ Arizona jury trial, which is delivered gents. matic change in the way jury trials to the law schools two weeks before are conducted. the competition. Each law school The Special Problems/Adminis ­ This committee also monitors the conducts its own try-outs to select tration of Justice Committee is con­ work ofthe American Civil Trial Bar the two law students who will repre­ ducting a survey of state and Roundtable, an ad hoc group of rep­ sent their college in the competition. province chairs, asking them to re­ resentatives from several other trial A $600 ($300 to each student) prize port any juror innovations that are bars such as ABOTA, ATLA, DRI, is awarded by the Arizona Fellows to being considered or are in use in state IADC, and FICC. The group meets the winning team and a $400 ($200 or federal courts in their jurisdic­ twice a year to discuss issues relat­ to each student) consolation prize to tions. The committee had previously ing to the civil justice system and is the runner-up team. The 1999 win­ made a brief survey on jury trial in the process of developing a white ners were Brian Laird and Ash · innovations and was asked by the paper addressing several rather non Sawkar from the University of Ari­ Boarrl of Regents to identify the spe­ controversial issues such as lawyer zona College of Law, coached by cific mnovations in various court sys­ civility. law Professor Thomas Mauet. tems in more detail. The survey cov­ ered the conduct ofjurors during trial The Idaho State Committee is in and included such things as the rights State & Province the process of developing a mentor­ of jurors to take notes and ask ques­ Committee Activities ing program for young lawyers in tions of witnesses. The Regents also Idaho and is seeking information on other mentoring programs. Please asked the committee to evaluate these In November, Arizona Fellows contact Merlyn W. Clark, Idaho innovations to determine their poten­ conducted the 29th annual "Joseph State Chair, at (208) 388-4836 or tial impact upon the conduct of trial Jenckes Closing Argument" competi­ P.O. Box 1617, Boise, ID 83701. by jury. In the initial survey, the tion between the University of Ari­ committee found that such innova­ zona and Arizona State University The Kentucky State Committee tions had been adopted and are the Colleges of Law. The competition is considering participation in an subject of experimentation in 3 7 was established in 1970 in memory intra-state trial student competition. states, and federal court systems. of one of the most colorful Arizona Other studies have found that some 0