NEWSLETTER OF THE AMERICAN ACADEMY OF APPELLATE LAWYERS n 2016 ISSUE 1

CONTENTS Spring Meeting in Seattle

1 Spring Meeting in Seattle March 31–April 2, 2016

3 President’s Column: Celebrating Our Past, Building Our Future Catherine Wright Smith Fellow and Co-Chair of the Seattle Meeting 4 Report on the 25th Anniversary Sessions Mount Rainier. The Space Needle. Pike (not Pike’s!) Place 9 Justice Kennedy Receives Market. A city so vibrant, and in an area so beautiful that Microsoft, Amazon, Kathleen McCree Lewis and the Seahawks call it home. Following a Washington, D.C. meeting attended Award by a record number of Fellows, what more will it take to lure you to Seattle, “the 10 25 and Counting! other Washington”? How about a strong program focused on the issues facing state appellate courts, as well as a social program without precedent—think cool music, th 11 AAAL 25 Anniversary the chance to dance, and craft cocktails. Interested? Read on… Meeting Photo Spread

15 Profile of Inductees at the Our meeting will begin with the traditional Thursday cocktail hour on March 31 th 25 Anniversary Meeting at the conference hotel, the venerable Fairmont Olympic in the heart of downtown 19 Report on the Academy’s Seattle. Listed on the National Register of Historic Places, the Olympic has been a Oral Argument Initiative landmark in the Northwest since opening in 1924 on what was originally the site of the first campus of the University of Washington. 20 From the Editor: More Miscellany The substantive program starts Friday, April 1 (no foolin’!) with an examination of the use of state constitutions as a source of individual rights by state courts, a trend that began four decades ago in what was then considered a reaction to the retrenchment of the Burger Court. Three state Supreme Court justices—Justices Debra Stephens and Sheryl Gordon McCloud (a former AAAL Fellow) of the IMPORTANT DATES Washington Supreme Court, and Oregon Supreme Court Chief Justice Tom Balmer,

2016 Spring Meeting joined by the Ninth Circuit’s mediator, Chris Goelz, will discuss state constitutional Seattle, Washington principles as the rule of decision in a wide variety of cases, including those that March 31–April 2, 2016 fundamentally question critical aspects of state government. 2016 Fall Meeting San Antonio, Texas Judicial election, selection, and recusal in state appellate courts will be the focus of October 29–October 1 our second panel on Friday. Justices Steven Gonzalez and Charles Wiggins, and Fellow (and retired state Supreme Court Justice) Phil Talmadge, all veterans of contested elections for their Washington Supreme Court seats, join a panel moder- ated by Fellow Wendy Lascher, who drafted the Academy’s amicus briefs to the U.S. Supreme Court in Caperton and the pending case of Williams v. Pennsylvania, along with Matthew Menendez, of the Brennan Center at New York University, [continued on page 2] and Larry Leamer, author of The Price widely divergent practice and rules space in the Olympic Fairmont. And of Justice: A True Story of Greed and among the states governing the role you know that feeling you have at Corruption, a truly sobering examina- of amicus curiae and their relationship 8 p.m., when the Arthur England tion of the Caperton case and the role with the parties and with the court, charge has been read to the inductees, of money in judicial elections. while Washington Deputy Solicitor the past-president has been thanked General Jay Geck and AAAL Fellow for his or her service and opened that Our luncheon speaker on Friday John Bursch, former Michigan Solici- Tiffany clock box, and you’re wishing will be retired Washington Supreme tor General, will examine the role of you had a reason to linger with your Court Chief Justice Gerry Alexander, state solicitors general and how counsel fellow Fellows? Well, this year, you’ll who will recount the origins and may elicit—or contest—their support. feel like dancing, because live jazz will background of West Coast Hotel Co. follow the induction dinner! v. Parrish and “The Switch in Time Friday afternoon ends with an that Saved Nine.” Arising from a wage examination of factual innocence Saturday begins with words—and dispute in a Wenatchee, Washington and finality in state criminal cases. pictures—about briefwriting that hotel, this Depression-era case in University of Washington Professor you won’t want to miss. Professors which the U.S. Supreme Court voted Jacqueline McMurtrie, founder and Elizabeth Porter, author of Taking to uphold Washington’s minimum former director of the Innocence Images Seriously, 114 Columb. L. Rev. wage legislation is widely viewed as Project Northwest, and David Angel, 1687 (2014), and Gregory Sisk, author saving Franklin Roosevelt’s New head of the conviction integrity unit of Too Many Notes: An Empirical Deal—and saving the Supreme Court of the Santa Clara County District Study of Advocacy in Federal Appeals, from Roosevelt’s court-packing plan. Attorney’s office in California, will 12 J. Empirical Legal Studies, 576 address how claims of factual inno- (2015), who will discuss their recent Friday afternoon begins by picking cence challenge established notions scholarship on words and images and up where the fall panel on the U.S. of finality and illustrate the limits of the implications for written appellate Solicitor General’s office in D.C. left appellate review on a panel moderated advocacy in a program moderated by off. University of Washington law by AAAL Fellows Jim Whisman and AAAL Fellow Ken Masters. professor Helen Anderson, author Lenell Nussbaum. of Frenemies of the Court: The Many The formal program will end with Faces of Amicus Curiae, 49 U. Rich. Our induction dinner will be held an Academy business meeting fol- L. Rev. 361 (2015), will survey the Friday evening in a truly stunning lowing a panel on “The State of State

Seattle Skyline Fairmont Olympic Hotel

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Page 2 The Appellate Advocate n 2016 Issue 1 PRESIDENT’S COLUMN

Celebrating Our Past, Building Our Future

By President Nancy Winkelman

Founded in 1990, the Academy was change reducing the word limit for 2016 will also see the continuation the brainchild of our beloved col- briefs; we completed our report on of fulfilling our 2013 strategic plan- league Arthur England, who passed ways to increase the frequency of oral ning process: involving more fellows away in 2013. We will always strive arguments in the federal appellate in the work of the Academy; doing to fulfill Arthur’s vision—to foster a courts; and we filed an amicus brief in a better job of integrating new fel- professional association “dedicated to the U.S. Supreme Court on an issue lows; increasing diversity with the the improvement and enhancement of of bias in appellate decision-making. Academy; pursuing marketing and the standards of appellate practice, the (You can find our comments, report, outreach efforts; and partnering with administration of justice, and the ethics and amicus brief on the Academy’s other national groups. On the latter of the profession.” (Bylaws, Article 2.1) website.) I extend my personal thanks front, I thank Peter Goldberger for to those who played such an impor- co-leading, on the Academy’s behalf, When I opened a letter in 2004 tant role in these projects, including a 3-1/2 day advanced track at the informing me that I had been selected Oral Argument Task Force members National Legal Aid and Defender to be a fellow, I was not just honored, Charlie Bird, Diane Bratvold, Association’s 2016 Appellate Defender I was deeply humbled. It is now my Matt Lembke, Jim Martin, Alan Training Program, and I thank Sylvia great privilege to serve as the Acad- Morrison, Dan Polsenberg, Leah Walbolt both for her own participa- emy’s president. I will do my best Ward Sears, Roger Townsend, and tion in the program and for bringing to keep the Academy moving in the Mike Traynor, as well as Wendy the opportunity to the Academy. tremendous direction that it has in Lascher, who authored the U.S. the hands of those who have preceded Supreme Court amicus brief. Our 2016 Spring Meeting will be in me in this position; I am delighted Seattle, and Howard Goodfriend to serve with the 2016 officers and One of our most important projects and Cate Smith have put together a directors: Susan Freeman, Diane in 2016 is to take the oral argument terrific program. In the fall, we will Bratvold, Matt Lembke, Charlie initiative “on the road.” Under the be headed to San Antonio, where we Bird, Cathy Connors, Kevin able leadership of Jim Martin, we look forward to great programs, great Dubose, Howard Goodfriend, and have established an Oral Argument fellowship and—most importantly— Tom Weaver. Advancement Committee, compris- seeing you at our meetings. ing individual circuit-based groups. First and foremost—a shout-out to These groups will partner with the Finally, I have three personal requests Charlie Bird for his outstanding relevant state and local bar groups of each of you. leadership during the Academy’s in that circuit and will meet with historic 25th Anniversary. Under circuit judges and staff to work to First, carry yourself always as an Charlie’s stewardship, the Academy implement the task force’s recom- ambassador of the Academy. We are continued to serve its core mission: mendations. We are delighted to the country’s leading appellate law- we played an impactful role in com- involve over 30 fellows in the work yers: in the words of Arthur England’s menting on a proposed federal rule of these circuit-based groups. Induction Charge, “[d]o not be shy

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The Appellate Advocate n 2016 Issue 1 Page 3 Report on the 25th Anniversary Sessions

Fellows who gathered at the 25th Court, in both cert granted cases and also become involved in a case at the Anniversary meeting in our nation’s cases at the petition stage. When the circuit level, even after oral argument. capital heard presentations illumi- government has lost at the circuit It’s rare for the SG to appear in state nating the inner workings of the level, the SG’s office decides whether court—it never does so without Office of the Solicitor General of to petition, which it does rarely. This an agency’s request—and counsel the United States, the (increasingly enables the SG’s office to maintain seeking the SG’s appearance needs specialized) art of advocacy before credibility in urging a denial of cert in to identify what important federal the U.S. Supreme Court, and insights other cases. The SG files between 125 interest is involved. on appellate practice from former and 150 briefs each term in opposi- appellate practitioners who are now tion to cert; this work represents The final third of the SG office’s work appellate judges. Thanks go to Fel- approximately one-third of the SG involves merits briefing and oral argu- lows Laurie Daniel, Paul Fogel, office’s work. ments in SCOTUS—about 60 cases Wendy Lascher, Mary Massaron, a year. The SG appears in about two- and Robert Stumpf, who served as Another third of the SG office’s work thirds of these cases, while a deputy our reporters for these programs. involves reviewing potential appeals or assistant appears in the remainder. the government wishes to take from a An Insider’s Guide to the district to a circuit court. Although a The SG Office’s Three-Tiered Solicitor General’s Office few federal agencies have independent Structure The workings of the Solicitor Gener- authority to decide to appeal—and The SG is a political appointee who al’s Office featured a panel moderated although a U.S. attorney or federal consults with the attorney general by Fellow and former assistant solici- agency may file a notice of appeal, (AG), the White House, and core tor general (SG) Deanne Maynard. no appeal proceeds without the DOJ litigation partners and federal On the panel were Fellows Miguel SG’s approval. This helps maintain agencies. He or she has a fair amount Estrada and David Frederick, for- consistency (the SG wouldn’t want of autonomy and has the final say on mer assistant SGs who each served for to take a position in a circuit that it the government’s role in pending five years; Fellow Gregory Garre, a couldn’t or wouldn’t defend before cases, and typically faces little pres- former SG, principal deputy SG, and SCOTUS), identify candidates (and sure from the White House or the assistant SG; and Edwin Kneedler, an non-candidates) for SCOTUS review, AG. (For example, in the Heller D.C. assistant SG from 1979 to 1993, when and educate the SG’s office about gun control case, the SG defended he became a deputy SG. important pending issues. The SG’s the right to bear arms but urged that office also decides whether to defend handguns could be regulated, while The Scope Of The SG Office’s Work the constitutionality of congressional the Vice President and Senate urged a The SG’s office represents virtually all legislation (between 10 and 20 cases broader interpretation of the Second federal agencies in the U.S. Supreme a year) and files amicus briefs. It can Amendment.)

Page 4 The Appellate Advocate n 2016 Issue 1 Below the SG are four deputies, who there is almost no transparency to dards). Counsel should also consider typically divide up cases by subject the outside world. “reconfiguring” their case so the matter. And below the deputies are SG doesn’t bring the government’s 16 assistant SGs, who are general- Private Party-Initiated SG Involvement interests to bear against the client. ists; they typically have five to seven The SG regularly communicates years of legal experience and remain with private parties on whether to Because private counsel’s commu- with the SG’s office for less than 10 be involved in a pending appeal, nications with the SG’s office are years. cert petition, or cert-granted mat- subject to discovery and FOIA, it’s ter. Practitioners should contact important not to disclose privileged Until the 1980s, all deputy SGs were the SG’s office even at the pre-cert or confidential information. That political appointees. Since then, there petition stage to alert the Office of a said, the more forthcoming counsel has been only a single political (or potentially important issue. Counsel can be, the better, and pre-meeting “principal”) deputy, who tends to be may also encourage SCOTUS in its submissions that focus on why the SG responsible for “hot button” political submissions to ask the SG for his/ should or shouldn’t become involved issues and who, like the SG, com- her views. When SCOTUS seeks (and that don’t repeat arguments in municates regularly with the White the SG’s views on a pending peti- the briefs) are best. House. tion, counsel should contact the SG immediately to provide input. When the SG has decided to become The Decision on Whether the involved, it likely will ask for time Government Should Appeal When SCOTUS grants cert in a case to argue, which is usually granted. If the government loses in district not involving thgovernment, the SG Counsel are well advised to invite an court, the U.S. attorney or federal typically contacts the federal agen- SG representative to any moot, even agency desiring to appeal prepares cies who might be interested in the though the SG’s office is unlikely to a memorandum, which an assistant issue. Counsel should contact the invite counsel to its own moot. SG reviews; the assistant SG also SG’s office to determine who has prepares a detailed memorandum been assigned the case and schedule Oral Arguments Before the weighing the pros and cons of an in-person meeting; familiarity Nation’s Highest Court appealing. After a deputy SG adds with the record and the SG’s prior The fall program adhered to an comments, the package goes to the positions (from briefs or the SG’s Academy tradition for meetings held SG, who issues a one-word decision website) is crucial. Federal agency in our nation’s capital—to hear argu- that, unlike the supporting memo- representatives usually attend, and ments at the U.S. Supreme Court, randa, is FOIA discoverable. This the meetings are often spirited, and this time with the benefit of a independent review is critical to the “much like oral argument,” intense preview with arguing counsel. The SG’s role—the SG must often weigh and far-reaching. Counsel should case: Montanile v. Board of Trustees of (or even arbitrate between) compet- think about why the government the National Elevator Industry Health ing agencies’ concerns—and the SG should care about the issue, how Benefit Plan, Case No. 14-723. is better positioned to take any “heat” the client’s position aligns with the for a no-appeal decision than the U.S. government’s, and what interests The Sunday before the argument, attorney or agency concerned. an agency might have. Sometimes we first heard from Peter Stris of agencies have different views (for Stris & Maher on behalf of the There is a great deal of transparency example, this happened in Daubert, Petitioner. When Peter left, Mary within the government—memo- where the DOJ’s criminal division Helen Wimberly entered the room randa and other documents are opposed loosening expert testimony to share thoughts on the position of shared with U.S. attorneys and standards, yet the environmental the Respondent, represented by her federal agency counsel. In contrast, division advocated for looser stan- firm, Hogan Lovells.

The Appellate Advocate n 2016 Issue 1 Page 5 The question presented: “Does a months and then sued Montanile for precedents that focus on the historical lawsuit by an ERISA fiduciary against reimbursement under § 502(a)(3). By meaning of the statutory term, “equi- a participant to recover an alleged then, Montanile had spent almost all table remedy.” In her view, the court overpayment by the plan seek “equi- of the money. Nonetheless, the trial had “backed itself into a corner” table relief” within the meaning of court and Eleventh Circuit held that and was unlikely to overrule prior ERISA section 502(a)(3), 29 U.S.C. he had to repay the plan $121,044.02. cases, even though they had moved § 1132(a)(3), if the fiduciary has not The Supreme Court granted review backward to distinctions between identified a particular fund that is in because of a circuit split on whether a law and equity that Congress had the participant’s possession and con- money judgment for reimbursement abandoned in 1938 with the adop- trol at the time the fiduciary asserts from a plan participant’s general tion of the Federal Rules of Civil its claim?” Or, as restated by the assets constitutes an “equitable rem- Procedure. The real issue, therefore, Respondent, whether that participant edy,” as that term is used in ERISA. was whether the court would agree “can defeat enforcement of the plan’s with the plan that a money judgment valid equitable lien agreement—after Under this fact pattern, both sides obtained through an “equitable lien the lien attaches—by dissipating the could claim equities. As Respon- by agreement” can be considered a fund subject to the lien.” dent’s counsel explained during our traditional “equitable remedy” even program, equities favor the plan though it cannot satisfy traditional We were to learn that this is a sub- because Montanile had promised tracing rules because the money rogation case that would turn on the reimbursement, which created an already has been spent. Notably, the definition of “equitable relief.” The “equitable lien by agreement.” Fur- United States opposed that view and Supreme Court already had held thermore, the plan owed a fiduciary instead supported Montanile’s posi- that “equitable relief” means, in this duty to other participants to enforce tion in an amicus curiae brief filed by context, only “those categories of that promise to preserve plan assets. the SG’s office. relief that were typically available in On the other hand, the plan had equity.” This might sound like a dry notice of the intent to distribute The day after our preview, Peter Stris and archaic subject, but the advocates the funds but did nothing for six argued for Montanile and shared time were charged, and both the prelude months. Was it right to make Mont- with Ginger Anders, assistant to the program and oral arguments turned anile—an elevator repairman—come SG. Neal Katyal of Hogan Lovells out to be quite interesting. up with over $120,000 to pay back spoke for the plan. Both sides made the money he had already spent? the arguments that we heard about at Here are the facts. Robert Montanile Montanile’s counsel told us that the our program. But, there were a couple was a participant in an ERISA plan answer is important because it could of exchanges that we did not expect that paid over $100,000 for his have broad ramifications, reaching that are of interest to all of us because medical expenses after a car crash. pensions and disability payments. they involve the role of lawyers. One Montanile agreed to reimburse the For example, what if a pension plan was humorous, the other tense. plan from any payments received mistakenly overpaid a recipient for a from the tortfeasor, and he received period of time, and that person used Justice Breyer posed a hypotheti- a $500,000 settlement. But, after the money to pay for various living cal, asking whether the plan could taking $260,000 as payment for expenses. Would he or she have to have sued the lawyers who pocketed their own fees and costs, Montanile’s repay what was received in error? about half of the $500,000 settlement lawyers notified the plan that they proceeds. He added: “If they could, were going to disburse the remain- Respondent’s counsel expressed then doesn’t that solve the problem ing $240,000 to Montanile unless the view that such general notions for them because lawyers will be the plan objected within 14 days. of equity were not likely to decide awfully careful not to dissipate the The plan did nothing for about six the issue because of Supreme Court funds if, in fact, they’re going to be

Page 6 The Appellate Advocate n 2016 Issue 1 subject to the lawsuit”? Justice Ken- litigants, and all of the current court regardless of who presents nedy interposed: “I thought in most justices of the Supreme Court. Her them. states … the lawyer’s lien is prior to research revealed that of 66 attorneys the—” then Justice Scalia interjected: who had filed at least one petition What matters to the justices is the “That has to be or nobody would take for certiorari over the decade from quality of advocacy, not broad diver- these cases.” (Laughter) 2004 to 2014 each had at least three sity. Justice Sotomayor said she would petitions granted. Of these 66, 51 consider it malpractice for a trial The tone turned serious during worked for corporate law firms who lawyer to insist on arguing because Montanile’s four-minute rebuttal, generally represent employers against the lawyer wanted his or her one shot however, when his counsel referred employees and corporations against in the Supreme Court, rather than to a petition for certiorari that Mr. consumers. Eight advocates—just retaining a specialist. And justices Katyal filed in a disability case. one percent of the members of the acknowledge that they and their law Appearing displeased, Chief Justice Supreme Court bar—argued more clerks look at the names of the law- Roberts pushed back with his view than 43% of the cases on the court’s yers filing certiorari petitions as one that what opposing counsel says in docket. of the factors in deciding whether to another case is not relevant. It was hear a case. Indeed, Justice Kennedy a somewhat awkward ending for Biskupic concludes that this concen- believes that the elite lawyers do the Montanile’s argument, but the court tration of Supreme Court practice court a service by providing a screen- ruled in his favor a couple of months provides a documented advantage for ing function by selecting the cases in later based on its strict interpretation corporate America. The elite 66 are which they file certiorari petitions. of “equitable remedy.” Only Justice three times more likely to have cer- Ginsburg dissented. tiorari petitions granted in business Ironically, as membership on the cases than other lawyers. They have Supreme Court has grown more The Appellate “One Percent”? strong ties to the court, as former diverse, the lawyers appearing there Advocacy Before the U.S. law clerks, and to the SG’s office. are less diverse. Of the 66, 63 are Supreme Court For example, in 2014, 53 percent of white, and only eight are women. Reporter Joan Biskupic realized that, cases before the Supreme Court had Supreme Court justices believe this as she covered U.S. Supreme Court at least one lawyer who was a former is a result of the lawyer pipeline. arguments, she kept seeing the same Supreme Court law clerk. They assume that “once the pipeline lawyers again and again, to an extent increases we can be more diverse” and that far exceeded the consolidation Wondering if these skewed numbers wonder why the SG’s office isn’t more of a professional appellate bar that should concern the public, Biskupic diverse. took place during the 1990s. At the discussed her findings with the second luncheon presentation held members of the Supreme Court. Biskupic’s findings are found online during AAAL’s 2015 Fall Meeting, Whether liberal or conservative, under Reuters Investigates, The Echo Biskupic described where that real- each justice said that the statis- Chamber, http://www.reuters.com/ ization took her. tics do not trouble them. Rather, investigates/special-report/scotus/. they conclude, this is a natural Biskupic is also the author of Break- With the encouragement, financial byproduct of business in America. ing In: The Rise of Sonia Sotomayor backing, and technical support of Justices believed that other interests and the Politics of Justice; American her employers at Reuters, Biskupic are adequately served by such pro Original: The Life and Constitution and a team of two dozen researchers bono efforts as clinics at Yale and of Supreme Court Justice Antonin; and analyzed 14,000 certiorari petitions; Stanford Law Schools, and they are Sandra Day O’Connor: How the First reviewed the Supreme Court’s annual convinced that important issues will Woman on the Supreme Court Became journals; and interviewed lawyers, always “percolate up” to the high Its Most Influential Justice.

The Appellate Advocate n 2016 Issue 1 Page 7 What We Know Now That We D.C. Circuit Judge (Editor’s Note: This last point was Wish we Knew Then: Views • Judges learn what it means to be made ironically.) on Appellate Practice from “independent together.” They have Former Practitioners Who Are a strong impetus toward unanimity. Fourth Circuit Judge Pamela Harris Now Appellate Judges So, try to find the “least common • In oral argument, try to find your Fellow Thomas G. Hungar moder- denominator” argument it takes champion on the panel. That judge ated a panel discussion among four to win. can help convince the others. recently appointed federal circuit • Tell the court what you want it • The facts are really important. A judges who were previously appellate to do—and what “rule of law” it good statement of facts makes a practitioners. The judges described should adopt. And always write judge think, “I want this side to their experience as new judges and from the vantage point of the win.” discussed insights on appellate prac- applicable standard of review. • “There’s nothing worse than a tice they’ve gained since taking the • What’s the biggest change from lawyer who doesn’t seem to believe bench. private practice? “The realization in his or her case. that I can change my mind! (You • Write your summary of argument Federal Circuit Judge Richard J. can’t.)” first. It should then guide the rest Taranto • Make your brief self-contained by of your presentation. • Keep in mind the court is a including, for example, a statutory • Preparation for oral argument is continuing institution that seeks or regulatory addendum. essential. A well-prepared lawyer consensus. Judges have to live • Be very careful in requesting amicus has the “mental space to listen” to together and want to be agreeable. briefs: you may not be able to keep the court’s questions. This being so, a good advocate will control. Ask yourself, “Why does emphasize the narrowest grounds the court need this perspective?” the court can adopt to rule in his or her favor. D.C. Circuit Judge Sri Srinivasan • The least effective appellate lawyer • In briefing, a clear, strong sum- is the one who hasn’t been selective mary of argument is all-important. about which arguments to make. It should be the first part of your Make only those arguments that brief you write. have a reasonable chance to win. • In oral argument, your points are • Responsiveness to the court’s important. The panel’s concerns, questions is the first, second, and however, are even more important. third most important thing in oral • Some judges read the reply brief argument. first. So, a good reply includes a • In writing your brief, always keep brief recap of the opening brief’s in mind the “surpassing importance key points. of clarity.” And also the “centrality • Particularly in unusual or arcane of time constraints” on the court’s cases, tell the court what’s really attention going on—and what the real world • Some judges read a brief’s table impact will be. of contents first. Nothing sinks a • What’s the biggest change from pri- brief like a table of contents that is vate practice? “I now know judges confusing or uninformative. are omniscient and infallible.”

Page 8 The Appellate Advocate n 2016 Issue 1 Justice Kennedy Receives Kathleen McCree Lewis Award

By Roger Townsend, Fellow and Past President

On the final day of the Academy’s a judge. Noting that this was World the law, based in part on pragmatic 25th Anniversary gathering, one Freedom Day, Chief Justice Roberts considerations, rather than tying the of the Academy’s most prestigious recalled that the Berlin Wall fell law solely to the dictates of the past. awards was given to Justice Anthony shortly after Justice Kennedy had Needless to say, his remarks—and his M.Kennedy in the Courtroom of assumed his current position. Mixing service—garnered a lengthy stand- the Supreme Court of the United his remarks with humor, the Chief ing ovation from the fellows. He and States, shortly before the Induction Justice paid tribute to his colleague Mrs. Kennedy, along with Justice Dinner in the Great Hall. On hand and demonstrated not only profes- Sotomayor, then graciously joined the were Judicial Fellow and Chief Justice sional respect, but also true affection. fellows in the conference rooms for a of the United States John G. Roberts We greatly appreciate Chief Justice social gathering, and the Kennedys Jr., Justice Samuel A. Alito Jr., Jus- Roberts’s continued participation in were kind enough to join the fellows tice Sonia Sotomayor, Justice Elena the Academy. for the Induction Dinner. Kagan, and Mrs. Kennedy. In accepting the award from Chief The Kathleen McCree Lewis Award The Kathleen McCree Lewis Award Justice Roberts, Justice Kennedy for Appellate Justice was created in is made only sporadically and only to proved himself a worthy recipi- honor of AAAL past president Kath- individuals or groups that have made ent. His extemporaneous remarks leen McCree Lewis, who died shortly contributions having exceptional were spell-binding, spicing up their after completing her term as president. impacts on the delivery of appellate profundity with moments of true AAAL’s board of directors wanted to justice. Through this award, AAAL hilarity—especially while affecting a recognize Kathleen’s warmth and hopes to call attention to the societal spot-on British accent. Justice Ken- elegance and especially, her devotion importance of the functions of appel- nedy proved himself sympathetic to to appellate justice. We feel certain late courts and to recognize extraor- the bar, expressing his appreciation that she would be most happy with dinary excellence and significant for the pressures counsel are under in her award going to Justice Kennedy. contributions to the appellate process. responding to questions for the court. Specifically, the recipient must have He also expressed his appreciation for made, in the past three years, a con- the civility characteristic of the appel- tribution to the delivery of appellate late bar. justice consistent with the purpose of the award. Justice Kennedy views the law as a people’s “moral history.” Accordingly, Justice Kennedy, of course, easily met the language of the law is important those criteria. In opening remarks, because it reflects the traditions Judicial Fellow and Chief Justice and aspirations of a given society. John G. Roberts paid tribute to Jus- One gathers that Justice Kennedy tice Kennedy’s 40 years of service as believes in a sensible evolution of

The Appellate Advocate n 2016 Issue 1 Page 9 25 and Counting!

By Wendy Lascher, Fellow and Former President

These days AAAL’s meetings do not out the best way to provide service In the words of President Charlie feature card games. Our gatherings to the appellate bench and bar. Bird, while we have enjoyed creative do not take place concurrently with programs, good food, good wine, and the American . AAAL In 1996, AAAL held its first stand- good fellowship over the past 25 years, is no longer trying to figure out who alone meeting in Tucson. Decoupling AAAL has grown up to be the recog- we want to be. from ABA meetings enhanced partici- nized force for appellate justice and pation to the point that, by the time quality that our founders envisioned Lunch on the first day of the Fall Sandy Svetcov became president in a quarter century ago. Here’s to the Meeting in Washington, D.C., cel- 1997, we had grown from 40 to 200 next 25! ebrated how far AAAL has come in the members in less than 10 years. We 25 years since a handful of Florida law- were able to increase our professional- (EDITOR’S NOTE: The photo mon- yers, including Arthur England and ism by hiring Management Solutions tage and video can be found on the Sylvia Walbolt, envisioned a nation- Plus to provide administrative help Academy’s website. Go to the “Fel- wide organization of appellate lawyers. instead of relying on our presidents’ lows Only,” page; click on “Meeting A photo montage from past meetings secretaries. That decision brought us Materials,” then click on “2015 Fall played as lunch began, followed by a the warm and wise guidance of Beth Meeting,” and there—finally!—you video of recollections featuring Sylvia, Palys and her always-effective staff. will find, under “Meeting Materials,” Mark Harrison, Alan Morrison, both the “Lunch Photo Montage” and Malcolm Smith, Luther Munford, Fast friendships have developed over the “Lunch Video.” These are well and Eric Magnusson. Over dessert, the years, along with traditions such worth your time!) Dan Polsenberg moderated a panel of as the inspirational induction charge past presidents, including Catherine Arthur England bequeathed to us. Smith, Roger Townsend, and David We are blessed with a mix of past Herr, reviewing AAAL accomplish- presidents who remain active and ments and aspirations. a cadre of impressive and energetic new members. AAAL is nationally By the second meeting, held in recognized for its many contribu- Dallas, AAAL’s Florida founders tions, including the Eisenberg Prize reached out to appellate superstars for the best in legal writing about like Barrett Prettyman, Ken Bass, appeals and appellate courts and the Howard Eisenberg, Michael Kathleen Lewis Award for service to Meehan, and Kathleen McCree appellate practice; organization of Lewis. Early meetings were small a national conference on appellate gatherings (only six people came to practice; amicus briefs, task forces, a meeting during a Baltimore bliz- white papers, and advocacy about zard) where the group tried to figure appellate issues.

Page 10 The Appellate Advocate n 2016 Issue 1 AAAL Fall Meeting November 7–9, 2015 • Washington, D.C.

Page 11 Programs and Fellowship

Page 12 The Appellate Advocate n 2016 Issue 1 With the Justices at the Court

The Appellate Advocate n 2016 Issue 1 Page 13 In the Great Hall

Page 14 The Appellate Advocate n 2016 Issue 1 Profile of Inductees at the 25th Anniversary Meeting

At the 25th Anniversary Meeting, the the Federal Bar Association, Northern Mr. Bertocchi has taught appellate Academy welcomed the following 12 California. practice at the Department of Justice distinguished appellate advocates to and the National District Attorneys its ranks: Joel D. Bertocchi Association and was the primary Joel D. Bertocchi is a author of the chapter on the record Susan K. Alexander partner at Hinshaw & on appeal and the appendix in Federal Susan K. Alexander has Culbertson, LLP, in Appellate Practice (BNA 2008). He 29 years of federal Chicago, where he has served on the Seventh Circuit’s appellate experience, heads the firm’s Civil and Criminal Pattern Jury briefing and arguing Appellate Practice Group. He focuses Instruction Committees and was the appeals in nearly every his practice on appeals and critical reporter for the Criminal Committee federal circuit court in the country. motions in civil and criminal cases, from 2009 to 2013. For the past 15 years, Ms. Alexander and he also handles white collar, has represented individuals, labor investigative, and compliance matters. John J. Bursch unions, and pension funds in securities Mr. Bertocchi served as Illinois John J. Bursch is a fraud class action appeals. Ms. Alex- Solicitor General from 1999 to 2003, partner at Warner ander’s prior appellate work was with and before that was an assistant U.S. Norcross & Judd LLP, the California Appellate Project, where attorney in Chicago, handling crimi- where he co-chairs the she prepared and supervised appeals nal investigations, trials, and appeals. Appellate and and petitions for writs of habeas corpus He has argued appeals before the U.S. Supreme Court Practice group. He on behalf of individuals sentenced to Supreme Court and several federal has argued nine cases before the U.S. death, and with Bronson, Bronson & courts of appeals and state supreme Supreme Court, 18 before the McKinnon, litigating professional and intermediate appellate courts. Mr. Michigan Supreme Court, and dozens malpractice and product liability cases Bertocchi has received several awards of others in state and federal courts on behalf of attorneys, doctors, and for appellate work, including Lawyer across the country. From March 2011 automobile manufacturers. of the Year in Appeals in the Chicago through the end of 2013, he compiled area in 2013, a Best Brief Award from a record before the nation’s high court Ms. Alexander chairs the Ninth the National Association of Attorneys that the National Law Journal Circuit’s Advisory Rules Committee General, a Director’s Award from the observed “even more veteran high and serves as the Northern California Department of Justice, and the Diver- court advocates would envy.” U.S. coordinator of that court’s pro bono sity Helping Hand Award from the Supreme Court commentators have program. From 2009 until 2012, she Black Women Lawyers’ Association described Bursch’s performances as was an appellate representative to the of Greater Chicago for help with a “unflappable in the face of sustained, Ninth Circuit Judicial Conference. brief amicus curiae in the U.S. at times hostile, questioning”: he Ms. Alexander is president-elect of Supreme Court. “understands exactly what [the Jus-

The Appellate Advocate n 2016 Issue 1 Page 15 tices] are asking him and knows how Ms. Monday is a member of the Michael A. Scodro to respond to their concerns.” Mr. Judicial Council of , the Michael A. Scodro is Bursch has received three Best Brief Boyd-Graves Conference, the Virginia a partner in the Appel- awards for his U.S. Supreme Court Model Jury Instruction Committee, late and Supreme work and six Distinguished Brief and the Virginia State Bar Profession- Court Practice at Jen- awards for his work in the Michigan alism Course Faculty. She is a fellow ner & Block LLP in Supreme Court. of the Virginia Law Foundation, the Chicago. Before joining Jenner, Roanoke Bar Foundation, and the Michael served for more than six years A past chair of the American Bar American Bar Foundation. She is a as the Illinois solicitor general, in Association’s Council of Appellate former board member of the Virginia which capacity he oversaw the civil Lawyers, he has been named one Bar Association, the Association of and criminal appeals divisions of the of Michigan’s Top 100 attorneys by Defense Attorneys, and the Virginia attorney general’s office and argued Michigan Super Lawyers, is listed in Law Foundation, and she is a Master on behalf of the state in the U.S. Best Lawyers in the practice areas of of the Bench and former secretary Supreme Court, the Illinois Supreme Commercial Litigation and Appel- in the Ted Dalton American Inn of Court, the U.S. Court of Appeals for late Practice, and is a member of the Court. the Seventh Circuit, and the Illinois American Law Institute. Mr. Bursch Appellate Court. Mr. Scodro was a was also the principal author for the E. Joshua Rosenkranz law clerk to the Honorable José A. Michigan Supreme Court’s Guide for E.Josh Rosenkranz Cabranes of the U.S. Court of Counsel, its guide to effective written heads the Appellate Appeals for the Second Circuit and and oral advocacy. Litigation Practice the Honorable Sandra Day O’Connor group at Orrick, Her- of the U.S. Supreme Court. Following Monica T. Monday rington & Sutcliffe. A several years in the appellate group at Monica T. Monday is former law clerk to U.S. Supreme Mayer Brown LLP, he became an the managing partner Court Justice William J. Brennan Jr. associate professor of law at Chicago- of the Virginia law and then-Judge Antonin Scalia on the Kent College of Law. In 2007, the firm Gentry Locke, D.C. Circuit, Mr. Rosenkranz has Illinois Attorney General named him where she heads the argued more than 180 appeals in state solicitor general, and he joined Jenner firm’s appellate practice group. Prior and federal appellate courts across the & Block as a partner in 2014. to joining Gentry Locke, she clerked nation, including 10 U.S. Supreme for the Honorable Lawrence L. Court cases in the past eight years, Mr. Scodro teaches a seminar on Koontz Jr., who was then chief judge and has served as attorney of record the U.S Supreme Court as a lecturer of the Court of Appeals of Virginia, in some 1,500 other appeals. Mr. in law at the University of Chicago and is now a senior justice on the Rosenkranz’s practice covers a wide Law School, serves as president of the Supreme Court of Virginia. Ms. range of subjects, including securities, Appellate Lawyers Association, was Monday has handled over 150 appeals intellectual property, antitrust, federal elected to membership in the Ameri- and frequently lectures and writes on preemption, insurance law, corporate can Law Institute, and is a member appellate issues. She currently chairs governance, criminal law, and con- of the ABA’s Council of Appellate the Appellate Practice Committee of stitutional litigation. Among his Lawyers and the Seventh Circuit Bar the Virginia State Bar Litigation Sec- recent clients are Apple, DIRECTV, Association, where he chairs the Com- tion and serves on the Fourth Circuit DISH Network, Facebook, First mittee on Administration of Justice. Rules Advisory Committee and the Republic Bank, Intel, Merck KGaA, Mr. Scodro also serves on the Illinois ’s Appellate Morgan Stanley, Nintendo, PG&E, Supreme Court Committee on Pro- Practice Section Council. and UBS. fessional Responsibility and formerly

Page 16 The Appellate Advocate n 2016 Issue 1 served on the Special Supreme Court Trial Lawyers and is a member of the good at heavy duty appellate motions’ Committee on Illinois Evidence, International Association of Defense and almost exclusively practices at which drafted and proposed the now- Counsel. He has served on the that level,” covering a “wide range adopted Illinois Rules of Evidence. American Bar Association’s Special of areas.” Woodward White’s The Commission on Evaluation of Profes- Best Lawyers in America lists her in Richard H. Sinkfield sional Standards and is also a trustee the areas of appellate and bet-the- Richard H. Sinkfield, of Vanderbilt University. company litigation. a partner with Rogers & Hardin LLP, has Virginia H. Snell Mark T. Stancil practiced law since Virginia H. Snell Mark T. Stancil has 1971. His primary chairs the Appellate argued five cases area of specialization is trial and Practice group at before the U.S. appellate advocacy in complex busi- Wyatt, Tarrant & Supreme Court, ness litigation, including securities; Combs, LLP in Lou- briefed many more, business torts; and director, officer, isville, Kentucky. She graduated and filed scores of briefs at the certio- and professional liability litigation. summa cum laude from the Plan II rari stage. Mr. Stancil has also argued Named for the second time as a Law- Honors Program at the University of a number of cases in the U.S. Courts yer of the Year by The Best Lawyers in Texas and then attended UT Law of Appeals for the First, Second, America, Mr. Sinkfield was recently School, where she worked as an arti- Third, Fourth, and Ninth Circuits, as named the 2014 Atlanta Lawyer of cles editor on the Law Review and well as the Supreme Court of Virginia. the Year in Litigation–M&A and was graduated Order of the Coif, with His practice has included matters for listed for inclusion as a Best Lawyer honors. She clerked for the Fifth major investment funds on a variety in six additional categories as selected Circuit before joining Wyatt. Ms. of issues, including the Foreign Sov- by his peers. He has been included in Snell is a master in the Brandeis Inn ereign Immunities Act, complex The Best Lawyers in America listings of Court. Among many professional bankruptcy disputes, breach-of-con- for 20 years, has regularly been rec- and civic activities, she has chaired tract actions (including breaches of ognized as a Georgia Super Lawyer, the ’s Appel- sovereign and high-yield bond inden- and is considered one among a hand- late Advocacy Section and served on tures), and constitutional claims and ful of the very best trial attorneys in the Kentucky Supreme Court’s Appel- defenses. Mr. Stancil has also handled Georgia. He also enjoys a preeminent late and Civil Rules Committees and cases involving partnership tax con- national reputation for his work most recently its Commission on Bar troversies, intellectual property litiga- defending corporate clients in “bet Admission. She also has been presi- tion (including copyright, trademark, the company” cases. He is a Top- dent, and now member, of The Law and trade secrets), employment dis- Ranked Lawyer in Chambers USA, Club, a 50-member organization of crimination, Section 1983 litigation which describes Mr. Sinkfield as “the lawyers and judges dedicated to and qualified immunity, federal quintessential trial lawyer,” and con- broadening professional scholarship. securities laws, accounting fraud and tinues, “Richard has built his reputa- accounting regulatory matters, SEC tion on a ‘magnificent courtroom Ms. Snell has been recognized for disclosure issues, and the Alien Tort presence’ that opponents concede has years in peer-review publications, Statute. In addition to litigating left them with ‘a lot of scar tissue.’” such as Benchmark Litigation and appeals, a substantial portion of Mr. Kentucky Super Lawyers. Chambers Stancil’s practice is devoted to provid- Mr. Sinkfield is a fellow of both the USA: America’s Leading Lawyers ing strategic advice in cases at the trial American College of Trial Lawyers for Business has stated that she was level, including preparing dispositive and the International Academy of “pinpointed by peers as ‘exceptionally or other significant motions, assisting

The Appellate Advocate n 2016 Issue 1 Page 17 trial counsel in the development of Ms. Sullivan holds a B.A. from Cor- True is a past-president of the Fed- legal arguments and strategy, and nell University, where she was a Col- eral Bar Association of the Western advising on error-preservation issues. lege Scholar and a Telluride Scholar; District of Washington, served as a an M.A. from Oxford University, lawyer representative to the Ninth Before entering private practice, Mr. which she attended as a Marshall Circuit Judicial Conference, was Stancil served as a law clerk to Chief Scholar; and a J.D. from Harvard elected to serve on the Ninth Circuit Justice William H. Rehnquist on Law School, where she won the Ames Judicial Conference Executive Com- the U.S. Supreme Court and to the Moot Court competition. She served mittee, and has served as a member Honorable David M. Ebel on the U.S. as a law clerk to Judge James L. Oakes (since 2008) and chair (since 2010) of Court of Appeals for the Tenth Cir- on the U.S. Court of Appeals for the the Ninth Circuit Lawyer Advisory cuit. Mr. Stancil has previously served Second Circuit. Board. He is an adjunct professor at as an adjunct professor at Georgetown the University of Washington School University Law Center, where he Todd D. True of Law and is an elected member of taught a seminar in constitutional Todd D. True is the the American College of Environ- theory, and he was a founding direc- managing attorney of mental Lawyers. Mr. True has been tor of the Supreme Court Litigation Earthjustice’s North- named one of Washington’s Top 100 Clinic at the University of Virginia west Office in Seattle, Lawyers by Washington Law & Politics School of Law. Washington. magazine and is listed in The Best Earthjustice is the nation’s largest Lawyers in America. Kathleen M. Sullivan nonprofit environmental law organi- Kathleen M. Sullivan zation. Mr. True joined Earthjustice Kim. M. Watterson is partner and chair of in 1987 as one of two attorneys who Kim M. Watterson is the national appellate opened the Seattle office. Since 1987, the practice group practice at Quinn he has handled numerous cases under leader of Reed Smith’s Emanuel Urquhart & a wide range of federal and state Appellate Group. She Sullivan, LLP, and is the first woman environmental laws, including the handles appeals, writs, named partner at any Am Law 100 Endangered Species Act; the Clean and post-trial motions for clients in firm. Her practice spans a wide range Water and Clean Air Acts; the federal and state courts around the of commercial matters. She has argued National Environmental Policy Act; country on a wide range of substan- nine times before the U.S. Supreme the National Forest Management Act; tive matters. Ms. Watterson has suc- Court and has litigated numerous and Washington’s Shorelines Manage- cessfully petitioned appellate courts cases in the U.S. Circuit Courts of ment Act, Forest Practices Act, and to grant discretionary review, includ- Appeals and state appellate courts, Water Resources Act. He has repre- ing the U.S. Supreme Court, several appearing before the First, Second, sented environmental and conserva- federal appellate courts, and the Third, Fifth, Seventh, Ninth, and tion groups before the U.S. Supreme Pennsylvania and Texas Supreme Federal Circuits and the highest Court and in federal and state appel- Courts. She has handled appeals in courts of California, New York, and late and trial courts. virtually every federal circuit court of West Virginia. Previously, Ms. Sul- appeals and 15 state appellate courts. livan was professor of law at Harvard Mr. True graduated from the Univer- Ms. Watterson’s experience encom- and Stanford Law Schools and served sity of Oregon School of Law in 1981, passes a wide range of substantive as dean of Stanford Law School, the where he was Order of the Coif and issues, including those impacting the first woman dean of any school at executive editor of the Oregon Law financial services industry, class Stanford. Her specialty was constitu- Review. He then clerked for The Hon- actions, complex jurisdictional ques- tional law, and she continues to orable Betty B. Fletcher, U.S. Court tions, data privacy, product liability, publish a classic casebook in that field. of Appeals for the Ninth Circuit. Mr. employment and higher education [continued on page 23]

Page 18 The Appellate Advocate n 2016 Issue 1 Report on the Academy’s Oral Argument Initiative

By James Martin, Fellow and Past President

Following on the excellent work of staff members to start a discussion March–June 2016: Set up initial the Oral Argument Task Force and on implementing the goals of the meetings with circuits and receive the principles outlined in its report Initiative (as outlined in AAAL’s updates on outreach efforts to (published on the Academy’s website), Task Force Report). other organizations, both local the Oral Argument Advancement and national. Committee is now starting to move the For continuity, Nancy, Charlie, or Academy’s “Oral Argument Initiative” I will try to attend the various local July–August 2016: Gather forward. The Advancement Com- circuit meetings when they take place. input from circuit meetings and mittee includes me (chair), Nancy Once we have our circuit committees work on next steps, as defined by Winkelman, Charlie Bird, Matt in place, we will update everyone on meetings. Lembke, Don Ayer, Alan Morri- the structure. Of course, if a fellow son, and Dan Polsenberg. By cover is called on to help with a circuit, we September–October 2016: letter sent in January, the Advance- hope you will join in. Line up articles and press for ment Committee has reached out to additional national and regional fellows nationwide to create a structure Apart from its monitoring and oversight publicity based on initial circuit to implement the Initiative, circuit- of the local circuit groups, the Advance- meetings. by-circuit. This outreach is designed ment Committee is also looking at ways to recruit fellows in each circuit who to publicize the Initiative in journals, November–December 2016: will take charge of their “home turf” with nationwide bar organizations, Finalize next steps with circuits by forming a circuit committee. and at appropriate legal media outlets. and continue to look for oppor- Input from the fellows also is welcome tunities for national and regional The various circuit committees, with on ways AAAL might best generate vis- publicity. oversight from one of the Advance- ibility for its efforts. As for next steps, ment Committee members, will have here is the current timeline: As always, support from the fel- three initial tasks: lows will be critical as the Initiative January 2016: Letters to pro- moves forward. And, as it moves 1. Recruiting other fellows, as posed circuit committees; form forward, we will do our best to needed, to carry out the Initiative committees; begin outreach to keep the fellows advised of develop- goals in their respective circuits. journals, national organizations, ments in the various circuits, with and media and evaluate and imple- any other organizations, and with 2. Figuring out which state or local ment advance publicity efforts. the print or electronic media. We bar groups should be approached know how important the Initiative to help support the circuit effort. February 2016: Call with circuit is to all of you and the Academy, committee leaders to discuss out- and we want you to be up to speed 3. Setting up meetings with the reach in circuits. Finalize approach on tHe progress of this important appropriate circuit judges and to advance publicity. endeavor.

The Appellate Advocate n 2016 Issue 1 Page 19 FROM THE EDITOR

More Miscellany

By Fellow Michael King

For those fortunate enough to be able continued to do good service as a family members it was the Defen- to attend the 25th Anniversary Meet- photographer at the 25th Anniversary dant who shot him, and this eyewit- ing in our nation’s capital, it proved a Meeting): ness identification was admitted into powerful affirmation of the value both evidence under the excited utterance of the Academy as an organization Speakers at Academy meetings are exception to hearsay rule. The other and of being able to share individu- often on the cutting edge. In Bos- eyewitness identification was by a ally in the fellowship that comes from ton in 2007, we had speaker James female companion who was sitting Academy membership. Doyle talk about trends in eyewit- with the Victim on the steps when a ness identification for the benefit man dressed all in black approached Presumably, readers have come to of members who might be doing the house and began shooting at this column after first perusing this criminal appeals. In particular, he them; the companion admitted issue of the newsletter. If so, I urge not only noted the problems that that she had seen the Defendant you to postpone reading this and to testing showed with what is often only once or twice before shooting, go back and give a closer read to the wrongly regarded as the gold stan- and did not know him. A quali- several articles covering our 25th Anni- dard for proof in criminal cases, but fied expert would have presented versary Meeting. From stimulating also pointed to efforts by criminal relevant and probative testimony sessions about practicing law before defense counsel to educate jurors directly addressing the State’s only our nation’s highest court, to special about those problems. evidence against the Defendant. The presentations allowing attendees to trial court’s reasons for denying the look back at our beginnings and see Fast forward to 2016, and we find admission of the expert’s testimony just how far we have come, to a mag- the Illinois Supreme Court declaring were expressly contradicted by the nificent evening at the Supreme court it was an error for the trial court to expert’s report and inconsistent with of the United States, culminating in deny use of a defense expert who was actual facts. Under these specific the induction of 12 new fellows—this going to testify about the unreliabil- facts, the trial court abused its discre- was everything one could hope our ity of eyewitness identification: tion when it denied the Defendant’s 25th Anniversary celebration would be. motion to allow expert testimony People v. Lerma, 2016 IL 118496, as to the reliability of eyewitness Back from that re-read? Good. Now 2016 WL 280709 (January 22, identifications. GARMAN, FREE- for the balance of your editor’s two 2016) (Trial Court: Cook Co.) MAN, KILBRIDE, KARMEIER, cents’ worth! (Appellate Court: 1st Dist.) (affirm- BURKE, and THEIS, concurring. ing reversal and order of new trial). Confirmation that our Hear in our programs about where meeting presentations are THOMAS, J.: The Victim was shot the law is headed! Then see the deci- truly cutting edge. to death while sitting on the unlit sions reflecting the content of those The following was passed along front steps of his home. The Victim, programs in the advance sheets, in from Fellow Mike Rathsack (who immediately after being shot, told due course!

Page 20 The Appellate Advocate n 2016 Issue 1 The Academy continues its lawyers hearing of this case for the first response, and resolution lies the virtue public service as a friend of the time respond, “of course.” of the appellate process.” Coffin,The Supreme Court of the United Ways of a Judge (1980), p. 174. States. The Supreme Court recognizes that In her column, President Winkelman the authority of a court “depends Argument will be heard by the Court alerted us to another Academy amicus in large measure on the public’s on February 29. A detailed report on curiae effort before the Supreme Court willingness to respect and follow its the outcome will appear in the next of the United States. Here is additional decisions.” Williams-Yulee v. Florida issue of the newsletter. Fellows wishing information about that effort, which Bar, 135 S.Ct. 1656, 1666 (2015). The to read the Academy’s brief can find it involves a brief the Academy filed Academy’s amicus brief argues that on the front page of the website under in Williams v. Pennsylvania, No. recusal of a potentially biased judge “Latest News.” 1505040. My thanks to Fellow Wendy is essential beyond the interests of Lascher who was the principal author the individual parties to a case. The More on the Appellate of the Academy’s brief, and who pre- perception of neutrality, as well as the “1 Percent.” pared this report for me to pass along reality, is essential to maintaining an As the Sessions Reports for the 25th as part of my column. effective legal system and preserving Anniversary found elsewhere in this respect for law. Moreover, if the bias newsletter reflect, attendees received In 2010, the Academy adopted eight of an appellate decision-maker affects an insightful briefing from Joan Principles of State Appellate Disqualifi- his or her reasoning about an appeal, Biskupic, the author of several books cation. Number one is that every state “then the taint of that biased decision on recent and current members of the should have procedures to protect “[t] extends to every future litigant whose U.S. Supreme Court, on the results he right to review on the merits by case may be affected by the appellate of a study she headed up for Reuters judges whose impartiality cannot rea- decision under the principle of stare about the increasing dominance of the sonably be questioned.” This principle decisis.” Principles of State Appellate Court’s docket by a small group of pri- is at the heart of the amicus curiae brief Disqualification, p. 2. vate practice attorneys. Along similar filed inWilliams v. Pennsylvania. lines, Fellow Luther Munford brought The second question presented in to my attention a recent e-posting The first question presented inWil - Williams poses the stickier appellate in Law360 about the firms with the liams spells out the facts: “Whether the issue: “Are the Eighth and Fourteenth highest success rates in getting their Eighth and Fourteenth Amendments Amendments violated by the participa- cert petitions granted and those with are violated where a state supreme tion of a potentially biased jurist on the highest success rates in opposing court justice declines to recuse him- a multimember tribunal deciding a cert petitions. The title of the report self in a capital case in which he had capital case, regardless of whether his is “The Firms Getting the Most Love personally approved the decision to vote is ultimately decisive?” In other From the Supreme Court,” and it was pursue capital punishment against words, could the participation of a circulated by Law360 on January 26, the defendant in his prior capacity as potentially biased appellate judge be 2016. Among the facts set forth in an elected prosecutor and continued harmless error? Our answer is again the report: The firm with the highest to head the prosecutors’ office that “yes.” The collegial nature of appellate success rate in grants is Goldstein & defended the death verdict on appeal, decision-making prohibits participa- Russell PC, which won grants in 30 and where he had publicly expressed tion of a biased judge, whether the percent of its 60 petitions over the strong support for capital punishment court is divided or unanimous. In the 12-year period studied. Goldstein & during his judicial election campaign words of Judge Frank Coffin, “The Russell’s co-founder is Academy Fellow by referencing the number of defen- different perceptions, premises, logic, Tom Goldstein, whose annual report dants he had ‘sent’ to death row, and values of three or more judges on highlights of the Supreme Court’s including the defendant in the case ensure a better judgment. In these dif- latest term has been a feature of this now before the court.” Most appellate ferences and in the process of criticism, newsletter for the past several years.

The Appellate Advocate n 2016 Issue 1 Page 21 Another call for articles. Miller and the Supreme Court During and under both the 14th and 15th In the last issue, we published an article the Civil Rights Era, by Michael Ross Amendments. But that abandonment by past president and fellow Sylvia (Louisiana State University Press, was not the work of the Waite Court Walbolt on recent developments in Baton Rouge, 2003). The second is a of which Miller and Bradley formed Florida’s harmless error doctrine. I said history of the Supreme Court’s Recon- so vital a part, but of the later Fuller at the time that this article was the first struction jurisprudence: Rethinking the Court—the Court of Plessy v. Ferguson of what the Publications Committee Judicial Settlement of Reconstruction, and, perhaps even more important, of hopes will become a regular feature of by Pamela Brandwein (Cambridge voting rights decisions in the 1900s the newsletter, in which fellows address University Press, New York, New that effectively put an end to the fed- substantive areas of appellate practice, York, 2011). eral government’s ability to extend any bringing to bear insights gleaned from protection to African-American exer- many years of distinguished practice I came to these two books persuaded cise of the franchise. And this aban- in the field of appellate law. We don’t by the historical narrative that sees in donment should also be understood as have the next such article in this issue Miller’s opinion for the Court in The a political ratification by the judicial (partly because we have dedicated as Slaughter-House Cases a repudiation branch of government of legislative much space as we have to reporting of Reconstruction as an exercise in change wrought by a resurgent Demo- on the 25th Anniversary), but we do social and political futility, and the cratic Party, which, under Cleveland, hope to have that next piece in the subsequent embrace of the state action repealed federal statutory protections subsequent issue. If you have an idea requirement as the fatal judicial body for African-American voting rights for such a piece, please contact me blow that opened the door to the resto- virtually en masse. To be sure, neither directly ([email protected]) and ration of white supremacy throughout Miller nor Bradley believed in the let me know what topic you would like the former Confederacy. I am now social equality of African-Americans, to address. persuaded by the scholarship of Ross and the fact of that permeating and Brandwein that Miller intended prejudice among “moderate” (white) More "Read the Law": no turning away from Reconstruc- Republicans, as much as anything Reconstruction Redux. tion, but rather was concerned about else, fatally undermined the ability Readers may recall that in my last upholding the ability of state govern- of the North to sustain the effort to installment of “Read the Law,” I ment to act against what Miller saw as secure African-American rights in featured a book on a critical moment an increasingly dangerous concentra- the face of the outright terrorism that in the constitutional history of Recon- tion of economic power in corporate characterized the forces of resurging struction: Charles Lane’s The Day hands. As for the Court’s embrace of Southern white supremacism. But Freedom Died: The Colfax Massacre, the “state action” limitation on federal both of them did see a role for the the Supreme Court, and the Betrayal action under the 14th Amendment, federal government in securing the of Reconstruction (Henry Holt & Justice Joseph Bradley’s opinion sitting civil and political rights of those so Co., New York, New York, 2008). as a circuit judge in the Colfax Mas- recently held in bondage, and on their At the risk of being found guilty sacre case of U.S. v. Cruikshank turns watch, the Court continued to support of having “Reconstruction on the out, on closer examination, to have such efforts. The Supreme Court’s brain,” I offer two more books that left more room for federal government turning away from that effort would reflect my continuing exploration of action to protect the civil and voting come later—and as we know, once this still crucial period in American rights of African-Americans than writ- the Court did turn away, it would be constitutional history. The first is a ers such as Charles Lane have been many decades before the Court would biography of Justice Samuel Miller, prepared to admit. rededicate itself to the protection of the author of the majority opinion in civil and voting rights. (Whether the The Slaughter-House Cases: Justice of To be sure, there would come a judicial Court remains dedicated to that effort Shattered Dreams: Samuel Freeman abandonment of African-Americans, is a topic I will leave to others.)

Page 22 The Appellate Advocate n 2016 Issue 1 Spring Meeting in Seattle President’s Column Profile of Inductees [continued from page 2] [continued from page 3] [continued from page 18]

Appellate Practice: Specialization about the recognition you have Programs and Specialty Bars.” Fel- achieved.” We need to be mindful law, and constitutional issues. Her lows Doug Alexander (Texas), to spread the word about the Acad- legal work on constitutional issues, Dennis Fischer (California), and emy—to clients, to trial lawyers, to particularly First Amendment Bruce Rogow (Florida) will share everyone with a stake in appellate issues, arises out of cases she han- the experiences with state special- practice. (On this front, please take dles for both firm clients and the ization certification programs and a moment to post your picture with American Civil Liberties Union. discuss the establishment of state your bio on the Academy website. She also has substantial experience appellate associations as a means “Blank faces” do not go far in with issues relating to the Federal of increasing the profile of appel- spreading the word!) Arbitration Act, including arbitra- late practice on a panel moderated bility of class actions and class by Fellow Cate Smith. Second, given that 40 percent of arbitration waivers. our fellows intend to retire within The local committee has some spe- five years, it is imperative that we Prior to focusing her practice cial treats in store for dine-around stay vigilant in nominating new on appellate law, Ms. Watterson options on Saturday night. Seattle ones—always maintaining our gained considerable jury and bench has an amazing restaurant scene. standards of excellence and keeping trial and preliminary injunction For those of you willing to make diversity in mind. The nomination proceeding experience, which she the hike (or Uber/cab ride) up to process is painless (you can find the calls on as she regularly represents Capitol Hill, we are trying to put form on the website). clients in appeals after trials. She together some unusual options, has been selected for inclusion in including a “speakeasy” option for Third, much of the work of the The Best Lawyers in America in craft cocktail lovers. And, if you Academy is conducted through its Appellate Law and Best Lawyers’ didn’t get enough music the night committees and task forces. These 2015 “Lawyer of the Year” for before, you may want to check out are listed on the website. If any of Appellate Practice in Pittsburgh. dinner at Tula’s, a local jazz club, them interest you, let me know, Ms. Watterson is a graduate of the before it falls to the wrecking ball and I will do my best to get you University of Pittsburgh School of to make way for more condos in the involved. Law, summa cum laude, and ranked fastest growing city in the country. first in her class. Her devotion to Lastly, as this goes to press, we Pitt extends to its renowned Hon- So come to Seattle! If you haven’t have news that yet another of our ors College, where she worked been here since the last Academy fellows has become an appellate while a graduate student, and its meeting 10 years ago, you won’t judge: Diane Bratvold, now of sports teams. believe the changes! If you’ve never the Minnesota Court of Appeals. been here, it’s way past time! And, We congratulate Diane and know if you come to love it as much as that Minnesota will be well served. your Pacific Northwest Fellows, you’ll know the 2016 Spring Onward to Seattle! Meeting will be the perfect rea- son for another trip to “the other Washington.”

The Appellate Advocate n 2016 Issue 1 Page 23 9707 Key West Avenue, Suite 100 Rockville, MD 20850

American Academy of Appellate Lawyers The Appellate Advocate is the newsletter of the American Academy of Appellate OFFICERS AND DIRECTORS PAST PRESIDENTS Lawyers, published twice a year. Comments, suggestions, letters, and articles may be sent to the editor, Mike King, Carney Badley James C. Martin Nancy Winkelman Spellman, Seattle, Washington 98104 or Roger D. Townsend PRESIDENT by email to [email protected], or to any Wendy Cole Lascher of the officers or directors of the Academy. Susan M. Freeman Donald B. Ayer Photographs for this issue were provided by Fellow Michael Rathsack, Law Offices of PRESIDENT-ELECT Karen L. Kendall Michael Rathsack, Chicago, Illinois. Hon. Diane B. Bratvold Timothy J. Berg AAAL Administrative Staff TREASURER Catherine Wright Smith Beth W. Palys, FASAE, CAE Charles E. Carpenter Jr. Matthew H. Lembke Executive Director athleen c ree ewis SECRETARY K M C L Lynne Agoston David F. Herr Director of Editorial Services Charles Bird Michael J. Meehan Jon Benjamin IMMEDIATE PAST-PRESIDENT Kenneth C. Bass III Senior Graphic Designer Lynn Turner Catherine R. Connors Sidney K. Powell Senior Member Services Manager DIRECTOR Peter W. Davis Grace L. Jan, CAE, CMP Alan B. Morrison Kevin H. Dubose Vice President—Meetings ric agnuson DIRECTOR E J. M Morgan Wisher Sanford Svetcov Meeting Planner Howard M. Goodfriend Sylvia H. Walbolt DIRECTOR AAAL Administrative Offices Luther T. Munford 9707 Key West Avenue, Suite 100 Thomas B. Weaver Malcolm L. Edwards Rockville, MD 20850 DIRECTOR Mark I. Harrison Phone: (240) 404-6498 E. Barrett Prettyman Jr. Fax: (301) 990-9771 Email: [email protected] Arthur J. England Jr. Website: www.appellateacademy.org