NUMBER 64 SPRING 2010

THE BULLETIN

MASSACHUSETTS CHIEF JUSTICE MARSHALL: PROTECT INDEPENDENCE OF COURTS

Chief Justice Margaret H. Marshall, the fi rst of her gender to hold that offi ce on the three hundred seventeen year old Supreme Judicial Court of Massachusetts, addressed the 59th Annual Meeting of the College in Boston. Address on page 8

This Issue: 76 Pages ERRATA

In the Fall 2009 issue of the Bulletin at page 32, we erroneously listed Emeri- tus Fellow John J. Kennelly of Oak Brook, Illinois as deceased. A mailing to Mr. Kennelly had been returned by the postal authorities, and a subsequent online search turned up the erroneous listing on which we relied in reporting his death. We apologize to Mr. Kennelly, who, as a 1958 inductee is among our most senior members. He will, incidentally, turn ninety-nine this year.

IN THIS ISSUE

Justice Marshall: Protect our Courts ... Cover Gumpert Award to Ontario Program ...... 39

From the Editorial Board...... 3 Boston Inductees ...... 40

Boston Meeting Overview ...... 4 Inductee Response ...... 42

Awards, Honors and Elections ...... 6 Minneapolis Bridge Pro Bono Case ...... 45

Codes of Conduct Revised ...... 7 Martin—Americans and the Constitution .... 46

Fellow to the Bench ...... 7 Shanor Recognized ...... 54

Bylaws Amended ...... 15 College Manuals a “Must” ...... 55

Fellows Represent Guantánamo Detainees ... 16 Lukey Installed as 59th President ...... 56

New Officers Elected ...... 23 Patent Case Manual Published ...... 58

Impact of Technology in the Courtroom ... 24 Four New Regents ...... 59

Gardner Museum Heist Unsolved ...... 30 Lieutenant Governor Welcomes Fellows .... 60

First Circuit Judge Issues Challenge ...... 34 In Memoriam ...... 62

Natalie DeWitt Retires ...... 38

A current calendar of College events is posted on the College website at www.actl.com, as is a current compendium of the ongoing projects of the College’s National Committees.

2  THE BULLETIN American College of Trial Lawyers FROM THE The Bulletin EDITORIAL BOARD Chancellor-Founder Hon. Emil Gumpert The College’s Annual Meeting in historic Boston com- (1895-1982) bined a trip through history with a disturbing look at mo- Officers dernity. Through the addresses of Massachusetts Chief Justice Margaret Marshall, of First Circuit Chief Judge Joan. A. Lukey, President Sandra Lynch, of Massachusetts Lieutenant Governor Gregory P. Joseph, President-Elect Chilton Davis Varner, Secretary Timothy P. Murray and of author-historian William Mar- Thomas H. Tongue, Treasurer tin, the attendees were led on the trip through history, John J. (Jack) Dalton, Immediate Past President with special emphasis on its present impact on our cho- Board of Regents sen profession. Paul D. Bekman Robert A. Goodin Panel discussions on the growing awareness of the nega- Baltimore, Maryland San Francisco, California tive impact on litigation and litigants of the almost un- Robert L. Byman Christy D. Jones Chicago, Illinois Jackson, Mississippi limited availability of information on the Internet and on

Bartholomew J. Dalton Gregory P. Joseph the unsolved theft of priceless art treasures from Boston’s Wilmington, Delaware New York, New York Isabella Stewart Gardner Museum were sobering looks at John J. (Jack) Dalton Joan A. Lukey contemporary reality. Atlanta, Georgia Boston, Massachusetts

Michel Decary, Q.C. Paul S. Meyer As has become our custom, we have tried to report in Montreal, Canada Costa Mesa, California separate articles the substance and the context of these John M. Famularo John S. Siffert presentations, both to refresh the recollections of those Lexington, Kentucky New York, New York who attended and to give those Fellows who did not the Bruce W. Felmly Michael W. Smith benefi t of some of the Boston program. We believe that Manchester, New Hampshire Richmond, Virginia you will fi nd the article entitled The Dark Side of Tech- Paul T. Fortino Thomas H. Tongue Portland, Oregon Portland, Oregon nology to be one that trial lawyers can ill afford to miss. Samuel H. Frankin Chilton Davis Varner Past President Michael A. Cooper’s report on the pro Birmingham, Alabama Atlanta, Georgia bono representation by forty-two Fellows of Guantánamo Phillip R. Garrison Francis M. Wikstrom Springfi eld, Missouri Salt Lake City, Utah detainees is must reading. It chronicles what may some- day be regarded as one of the College’s fi nest hours. In Editorial Board a similar vein, the account of the pro bono representation E. Osborne Ayscue, Jr., Charlotte, North Carolina, Chair by newly inducted Fellow Chris Messerly of victims of Susan S. Brewer, Morgantown, West Virginia, Vice Chair James J. Brosnahan, San Francisco, California the collapse of the highway bridge in Minneapolis, Min- Richard C. Cahn, Melville, New York nesota describes another exemplary effort. Andrew M. Coats, Norman, Oklahoma Michael A. Cooper, New York, New York Patricia D. S. (Trisha) Jackson, Toronto, Ontario You will also fi nd in this issue: a report of the elections of Timothy D. Kelly, Minneapolis, Minnesota Hon. Garr M. King, Portland, Oregon Offi cers and Regents for the coming year; an account of Warren B. Lightfoot, Birmingham, Alabama the rewriting of the College’s Codes of Trial and Pretrial C. Rufus Pennington, III, Jacksonville, Florida Simon V. Potter, Montreal, Quebec Conduct into one integrated document; a report of bylaw Conrad M. Shumadine, Norfolk, Virginia Michael A. Williams, Denver, Colorado changes affecting Emeritus Fellows, and a reminder of G. Gray Wilson, Winston-Salem, North Carolina the existence of manuals for both national and state and Samuel H. Franklin , Birmingham, Alabama, Regent Liaison province committees that are must reading for all com-

Marion A. Ellis, Editor mittee members. Telephone: 919.383.3737 Email: [email protected] And fi nally, we believe that in the fi nal article, entitled In Liz Doten, Art Direction and Design Email: [email protected] Memoriam, you will fi nd inspiring the description of the remarkable lives of Fellows no longer among us. American College of Trial Lawyers Dennis J. Maggi, CAE Executive Director 19900 MacArthur Boulevard, Suite 610, Irvine, California 92612 Telephone: 949.752.1801 Facsimile: 949.752.1674 Email: nationaloffi [email protected] Website: www.actl.com COPYRIGHT © 2010

THE BULLETIN 3 COLLEGE’S FIRST WOMAN PRESIDENT INDUCTED AT BOSTON MEETING

Boston, home of the original Tea Party, the USS Constitution, Paul Revere’s ride and Harvard Square, was host city for the Fifty-Ninth Annual Meeting of the American College of Trial Lawyers. In what may have been a dual fi rst, Joan A. Lukey, the fi rst woman President of the College, was thus installed as President at a meeting in her own home town.

Th e meeting was launched on Th ursday evening with a President’s Welcome Reception in the John Joseph Moakley U.S. Courthouse. Some of the Fellows had arrived early to attend a continuing education program on Th ursday afternoon entitled IP Issues: Perspectives and Policy.

Carrying the fi rst fl ag of the emerging nation, a fi fe and drum corps, dressed in the “uniforms” of the rebelling colonists launched the Friday morning session. After an invocation by Alain Hepner, Q.C., FACTL, of Calgary, Alberta and a moment of silence as the names of those Fellows who had died in the preceding year were displayed, President John J. (Jack) Dalton of Atlanta, Georgia introduced the Honorable Timothy P. Murphy, Lieutenant Governor of Massachusetts, who welcomed Flag, fi fe and drum opening of the Friday the visitors to his State. [His remarks and those of most session in Boston. of the other program participants are reported separately in this issue of Th e Bulletin.]

4  THE BULLETIN Murphy was followed to the say, Red Sox attire was very much Retiring Regents and Committee podium by Chief Judge Sandra in evidence. Chairs were then recognized for L. Lynch of the U.S. Court of their service to the College. Th e Appeals for the First Circuit, Massachusetts Chief Justice Saturday morning session was whose address, entitled Plain, Margaret H. Marshall, led followed by the annual business Honest Men, challenged the the Saturday program with meeting of the College, at which lawyers in the audience to assume a presentation entitled Our four new Regents were elected, their proper role in addressing American Constitution: Th e and by a reorganizational meeting honestly the problems of a Grammar of Human Freedom. of the Board of Regents, at which complex world. Th e experience of Justice the offi cers for the coming year Marshall, who had left her native were elected. Th ese elections are William Martin of Weston, South Africa before the end of reported elsewhere in this issue. Massachusetts, author of eight apartheid to come to the United books that combine American States to further her education, Th e inductees were guests at an history with contemporary was a poignant footnote to her informational breakfast, and mystery, entitled his remarks remarks. they and their spouses attended Americans Making and Made by a Saturday luncheon, where Past the Constitution. Drawing on Th e Emil Gumpert Award for President Warren B. Lightfoot his novel Th e Lost Constitution, excellence in improving the of Birmingham, Alabama shared he gave an engaging account of administration of justice was his vision of the College. the birth of the United States presented to Pro Bono Law Constitution, using vignettes Ontario, whose Executive Th e Annual Banquet commenced highlighting the roles of lesser Director, Lynn Burns of with an invocation by William known historical fi gures who Toronto, accepted. Gumpert Usher Norwood, III, FACTL, had helped to shape, or had been Award Committee chair William Atlanta, Georgia, followed by shaped by, the Constitution. J. Kayatta, Jr., FACTL, of the Induction Ceremony for new Portland, Maine, did the honors. Fellows. Past President Michael Th e Friday morning session E. Mone of Boston delivered the concluded with a panel discussion Th e Saturday morning program traditional Induction Charge. of the Isabella Stewart Gardner ended with a panel discussion John D. Saxon, Birmingham, Museum Heist, the largest, and with the dual title Th e Dark Side Alabama responded for the as yet unsolved, art theft in of Technology in the Courtroom inductees. Concert pianist history. Moderated by Regent and Online and Wired for Justice: Virginia Eskin of Boston, wife J. Donald Cowan, Jr., Raleigh, Why Jurors Turn to the Internet, of Joseph D. Steinfeld, FACTL, North Carolina, the panel moderated by Regent Philip J. gave a piano performance during was composed of Judah Best, Kessler. Th e panelists were Sean the dinner. FACTL, of Washington, D.C., M. Ellsworth, Miami, Florida, Boston private detective John P. litigation consultant Douglas At the end of the banquet, Joan A. DiNatale and Gardner Museum L. Keene, Ph.D. of Austin, Tex- Lukey was installed as President Director of Security Anthony as, Th e Honorable Donald W. of the College, and the Fellows Amore. Molloy, JFACTL, United States and their guests then enjoyed Judge for the District of Mon- dancing or the traditional Sing- Th e Friday night reception was tana and Elizabeth N. Mulvey, Along. focused on athletic teams, with FACTL, of Boston. Th e discus- the participants encouraged to sion dealt with the impact of the wear the cap or uniform shirt of Internet and the so-called social their favorite team. Needless to media on the litigation process.

THE BULLETIN 5 Let us be guided in our discussions, our dialogue, our understanding and to strengthen the camaraderie which has brought us all to Boston. Let us remember that our profession is a noble calling, not just about rules and rhetoric, but respecting and helping people in small and not-

so-small ways to make our world a little better. Let us know that the ability we have is to do what we do and to make a difference. I am proud to be among you.

We pray for help to give our individual and collective gift to our community. Bless our countries,

“the United States and Canada, that they be the strongholds of peace and justice and advocates among nations. Let us think of the men, women and children who need our prayers in war-torn, oppressed countries.

The rule of law is the premise upon which our entire profession is based, a belief we all hold so dear. We pray that the momentum of justice never stops and the concept of fairness as we know it “ does not fail. William Pitt, the former prime minister of England, once said, “When justice ends, tyranny begins,” and we can’t let that happen. Let us pray that our profession maintains the spirit, the obligation and the passion to help others, and our intention remains to make a difference in a world that has grown so small that it can be explored and conquered with a click of a mouse.

For all of this, and a few doses of good luck and grace, we give thanks.

Invocation, opening session, 59th Annual Meeting Alain Hepner, Q.C. Calgary, Alberta

AWARDS, HONORS and ELECTIONS

David Rudovsky of Philadelphia, Pennsylvania has received the Keystone of Civil Rights Award from the American Philosophical Society of Philadelphia.

6  THE BULLETIN CODES OF TRIAL AND PRETRIAL CONDUCT REVISED COMBINED IN ONE DOCUMENT

The College’s Code of Trial Conduct, originally published in 1956 and revised periodically thereafter, and its Code of Pretrial Conduct, originally published in 2003, have been revised to refl ect current conditions and combined in one document.

The current revision was the work of the College’s Legal Ethics and Professionalism Committee, initially chaired by the late Charles A. Harvey, Jr. of Portland, Maine and then by Randal H. Sellers of Birmingham, Alabama. It includes an introduction by Honorary Fellow Chief Justice John G. Roberts, Jr.

The original Code of Trial Conduct represented the College’s fi rst attempt to reach beyond its members to the entire trial bar. In publishing it in its entirety in March 1957, the ABA Journal noted that, so far as it was known, this was the fi rst time that any group of lawyers had “under- taken to promulgate a code of standards of ethics, deportment and conduct for the trial lawyer.”

The Board of Regents has approved the 2009 revision, which has been published and now ap- pears both in the 2010 “Blue Book” and on the College’s website.

The original Code and successive revisions have been often cited by courts as setting a standard of conduct for all trial lawyers, and they have been repeatedly used by Fellows of the College in programs on professionalism.

FELLOW TO THE BENCH

The College is pleased to announce the following new Judicial Fellow:

James G. Martin, III, Circuit Judge and Chancellor, 21st Judicial District, Part 2, Franklin, Tennessee.

THE BULLETIN 7 Continued from cover

OUR AMERICAN CONSTITUTIONS: THE GRAMMAR OF HUMAN FREEDOM

Chief Justice Margaret H. Marshall, born and raised in South Africa, earned her undergraduate degree from the University of Witwatersrand in Johannesburg. For three years she was President of the National Union of South African Students, an organization dedicated to ending oppressive minority rule and achieving equality for all South Africans. Coming to the United States to pursue her graduate education, she earned a master’s degree in education from Harvard and then completed four years of doctoral studies before enrolling in Yale Law School.

After graduation, she practiced law in Boston for sixteen years, specializing in intellectual property litigation. She served a term as President of the Boston Bar Association. She became a United States citizen in 1978. In 1992, she began a long string of “fi rsts” when she became the fi rst woman appointed Vice President and General Counsel of Harvard University. Four years later, she was appointed to the Supreme Judicial Court of Massachusetts and three years thereafter became its fi rst female Chief Justice.

She is married to two-time Pulitzer Prize-winning columnist, author and professor Anthony Lewis.

Drawing on her own background as Chief Justice, as chair of both the National Conference of Chief Justices and of the National Center for State Courts and as one who grew up in a segregated society, Chief Justice Marshall addressed the central place of law in society, the fundamental importance of strong, independent state courts and the current threats to them, focusing on inadequate funding, lack of access and increasing politicization.

8  THE BULLETIN I want to make a few remarks I was a university student sciousness of the value of an today, and I do so wearing there in the 1960s. Many of independent judiciary. My three hats . . . already touched my teachers and my friends experiences in South Afri- upon. were imprisoned, tortured ca have made me value pro- or forced to leave the coun- foundly the central place of First, I am the Chief Justice of try, as often as not because of law in American society, law the Supreme Judicial Court. I the views they held and the in the true sense of the word. am the immediate past-pres- ideas they expressed. Books For those of you who are born ident of the Conference of and periodicals and movies here or in Canada, you may Chief Justices; and . . . I am that the nationalist govern- take for granted the existence the child of a country with ment considered offensive of the idea of equal justice un- no respect for the rule of law. were outlawed. There was der law. But as an immigrant And wearing each of those no television, and stringent who came here at the age of hats, I stand here this morn- laws restricting the freedom twenty-four, I can never take ing to deliver a sobering mes- of the press were enacted. that for granted. For me, it is sage to you: State courts in the essence of what it means the United States are in peril. And more important, women to be an American. They are at the tipping point. and men were treated as sub- I want to say a little bit about human simply because of the THE HERITAGE OF each of the three hats and color of their skin. And there THE MASSACHUSETTS then explain to you why I’ve was no or little recourse to COURT reached that conclusion. the courts to challenge that And now my second hat. For system. I am a woman, and THE LEGACY OF A SEG- the past decade, I’ve served as you can see, I am white. REGATED SOCIETY as Chief Justice of the Su- And those two attributes preme Judicial Court of the gave me a great deal of pro- I was born and educated in Commonwealth of Massa- tection in South Africa. But in South Africa, the child of par- chusetts. For those of you 1966, I became a national stu- ents and grandparents and from Virginia, hold on: the dent leader in the forefront of great-grandparents and be- Supreme Judicial Court is the anti-apartheid activities, and yond who were also born in oldest court of continuous I traveled throughout that South Africa. And I grew up existence in our nation oper- country, speaking and or- during the apartheid years, ating under its oldest written ganizing against apartheid. where by statute and by rule constitution. and the application of the And my activities placed me rules, disagreement with the at considerable risk, and so The Massachusetts Consti- racial system of supremacy, I came to know personal- tution was adopted in 1780, white supremacy, was de- ly what it feels like to fear a drafted by John Adams sev- fi ned as a crime. People were knock on the door in the mid- en years before the adoption silenced, isolated, impris- dle of the night and to know of the United States Con- oned indefi nitely and with that if the government arrest- stitution. It is a great docu- no recourse to the courts. ed or banned me, as it had so ment, as vital today as at any many other student leaders, I time in our Commonwealth’s Now, almost twenty years af- could not turn to the court for history. It begins, not ends, ter the release of Nelson Man- refuge. with a ringing declaration of dela from his three decades of rights, “All people are born I came to this country in 1968, imprisonment, it may be dif- free and equal.“ It originally fi cult for you to imagine what alone as an immigrant, and South Africa was like when I have an immigrant’s con- L

THE BULLETIN 9 said all men are born free and – and I’m talking about fi l- erties. The fi rst constitutional equal, but we changed that: ings, not decisions, and ex- matter decided by my court “All people are born free and cluding bankruptcy cases – – the court goes back to 1692 equal, and have certain natu- was 384,000, approximately. – but the fi rst constitutional ral, essential, and unalienable 384,000 across the United matter was brought by a run- rights, among which may be States. For the same year, in away slave claiming his free- reckoned the right of enjoy- state courts, excluding traffi c dom under the fi rst article of ing and defending their lives offenses – perhaps you may the newly ratifi ed Massachu- and liberties.” But more of have a number in your head setts Constitution I have just that later. – 47.3 million cases were quoted, “All people are born fi led in trial and appellate free and equal.” And three THE FUNDAMENTAL IM- state courts, excluding traf- years after the Massachusetts PORTANCE OF STATE fi c offenses. The numbers Constitution was ratifi ed, the COURTS are striking, but do not tell a court concluded in 1783 that Third, as President of the whole story. slavery was “repugnant” to the constitutional guarantees Conference of Chief Justices, Consider the texture of cas- I have the great privilege of of equality and freedom. The es heard in state courts. The case was the fi rst anywhere traveling across this nation vast majority, of course, meeting and talking with in the world to abolish slav- make no headlines. And of ery. state court judges and their course it is federal law that judicial staffs. The views that unites our country under a And as is always the case in I express today are personal, set of common principles. our judicial system, the ap- of course, but they are deep- But state courts are closer to pellate judges learned from ly informed by what I have the pulse of everyday life. great trial lawyers. Two great learned in my travels. Where do the legal meanings Massachusetts trial lawyers, The health . . . of the en- of such elemental concepts Levi Lincoln and Theodore tire legal system, both state as birth and death and fam- Sedgwick, had argued before and federal, depends on a ily take shape? Largely in that case to juries successful- strong state judiciary. These state courts. State courts de- ly that slavery and the new are not my words, but the cide whether the bank may Massachusetts Constitution words of former Justice San- foreclose, or the tenant must were incompatible. And I dra Day O’Connor, herself a vacate, whether the crimi- should say, a portrait of The- state appellate justice before nal defendant was properly odore Sedgwick hangs in my her appointment to the Unit- charged, who gets custody chambers. Groundbreaking ed States Supreme Court. I of children, who complies decisions. agree, for as justice in our with zoning laws, whether the worker is entitled to com- Massachusetts courts were state courts goes, so goes jus- the fi rst or among the fi rst to tice in our nation. pensation or an injured pa- tient to recover from her doc- recognize the right of workers Sheer numbers tell the story, tor. Shifting legal and social to form unions, to improve at least in part. In 2007, the paradigms fi nd voice in state wages and working condi- latest date for which compar- court decisions. tions, a decision that fl ew in ative data are available, the the face of settled law deem- total number of cases fi led The Massachusetts Supreme ing such associations crimi- in federal, district and ap- Judicial Court has a long, nal conspiracies. We were the pellate courts, including the proud history of expanding fi rst to invalidate the use of United States Supreme Court the boundaries of human lib- peremptory challenges based

10  THE BULLETIN on race and to provide coun- cause the implications are of circumstances threatens sel for indigent defendants in not as radical as when the much of what we know or criminal cases. More recent- United States Supreme Court think we know about our ly, my court was the fi rst to speaks. American system of justice. recognize marriage for same- gender couples. Justice Louis Brandeis’, a Let me mention just three Boston native’s, famous de- troubling recent develop- Other state courts have con- scription remains apt: “Our ments for state courts: Inad- tributed signifi cantly to para- state courts,” he said, “have equate funding, an inability digmatic shifts in the law. A a unique ability to ‘remold’ to provide access for all and few examples, which are so through experimentation the politicization of state ju- familiar to all of you: Perez v. our economic practices and diciaries. Sharp was a California state institutions to meet chal- case on interracial marriage lenging social and economic THE IMPACT OF INADE- that laid the groundwork for needs. It is one of the happy QUATE FUNDING the United States Supreme incidents of the federal sys- First, funding. These are Court decision in Loving v. tem,” he continued, “that a lean times for the states and Virginia nineteen years later. single courageous state may, the public sector in particu- The Buick Motor Company v. if its citizens choose, serve as lar. According to the Nation- MacPherson, remember that a laboratory; and try novel al Center for State Courts, one, in which Justice Cardozo social and economic experi- forty-seven states, from Cali- held in 1916 that Buick had a ments without the risk to the fornia to Massachusetts, face duty to third-party consum- rest of the country.” As jus- shortfalls – huge shortfalls ers to ensure that its automo- tice in our state courts go, so – in their budgets for fi scal biles were safe. MacPherson goes justice in our nation. year ‘09 and ‘10 and beyond. did not express national con- I need hardly emphasize to In one year, this past year, the sensus or anything close to it. Massachusetts judiciary has In fact, the opinion was wide- this audience that for state courts to meet the obligation seen a decline of more than ly rejected at fi rst. Yet no one $50 million in the appropri- today seriously argues that a to do justice in the dizzying array of matters that come ation it receives to conduct retail customer cannot recov- our operations. One state, er from an automobile mak- before them, they must oper- ate fairly and equitably. They $50 million. And the picture er for a defective product. grows gloomier every day. MacPherson led straight to must operate effi ciently, and they must be independent of The result? One-half of state the consumer protection law court systems will not be fi ll- as we know it today. outside infl uence, be it popu- lar prejudice or interference ing judicial vacancies or call- I dwell or mention those cas- from the elected branches. ing in retired judges to sit on es as exemplars of ways in That is our shared belief. That the bench. Massive reduc- which state courts have re- is our national commitment. tions in staff that provide di- fashioned whole areas of law rect adjudication support and far in advance of their gen- For two centuries and more, judicial offi ce support, are eral acceptance in the United we in the United States – and causing increased backlogs States and elsewhere. And I might say Canada – have in civil, criminal, family, ju- why this continuing vitality? benefi ted from an indepen- venile, all cases. Our budgets I believe it is so state courts dent judiciary. Do we now are being decimated even can more readily bend the take that for granted? In a as we know that in times of law in a new direction be- word, yes. A perfect storm L

THE BULLETIN 11 economic stress, people turn most basic needs: food, shel- As you may recall, the case to the courts in even greater ter, healthcare, physical safe- involved a $50 million jury numbers. State courts are the ty. Many have no money, and verdict in favor of Caperton, legal equivalent, Chief Judge neither legal services nor who charged that the coal Jonathan Lippman of New pro bono assistance can help company’s predatory practic- York has said, of the emer- all in need. Many have lim- es drove him out of business, gency room. When the econ- ited English profi ciency or a case familiar, no doubt, to omy declines, the need for are functionally illiterate, yet many of you in this room. court services increases. competent translators and The West Virginia Supreme simplifi ed forms can be hard Court of Appeals – dividing And this audience knows to fi nd. The disabled are con- three to two – reversed the that it matters, it really mat- fronted by courthouses, some judgment for Caperton and ters, whether a case moves built 100 years or more with declared victory for the coal expeditiously through the steep staircases and narrow company. court system. It matters to the corridors. You know them all. business damaged by theft of They’re in all of your states. But there was a problem. Jus- its intellectual property or tice Grant Benjamin, who Such circumstances are intol- the crime victim seeking jus- erable in a society founded cast the deciding vote in West tice, or the injured worker on the principle of equal jus- Virginia’s highest court, was with mounting medical bills. tice, and they are all too com- newly elected to that court, There is a funding level be- mon in our state courts. and the coal company’s chief low which state courts will executive offi cer had paid $3 be unable to function at even Just last week, the Brennan million to help Justice Ben- minimally adequate levels. Center for Justice released an jamin win election. Dividing Are we at that precipice? I in-depth study showing the fi ve to four, the United States worry that we are. high number of families that Supreme Court concluded face foreclosure proceedings that Justice Benjamin’s par- THE NEED FOR without the aid of legal coun- ticipation in the case violated EQUAL ACCESS sel. The study underscored Caperton’s right to due pro- A second, and closely relat- the overlap between the long- cess. Justice Kennedy’s opin- ed, challenge for state courts standing shortage of lawyers ion for the court, joined by is access to justice. “Freedom for the poor and the collapse Justices Stevens, Souter, Gins- and equality of justice are es- of our economy. Were the re- burg and Breyer, emphasized sential to a democracy,” said sults of the study a surprise? the extraordinary facts of the Boston lawyer Reginald He- Not if you have been paying case, the chief executive offi - ber Smith in his landmark attention to what is happen- cer’s signifi cant and dispro- work on the law and the poor ing in your state courts. portionate infl uence on the election and the temporal re- almost a century ago. “Deni- POLITICIZATION: THE lationship between the elec- al of justice,” he continued, ROLE OF MONEY “is the shortcut to anarchy.” tion and the pending case. The shortcut to anarchy. The decimation of state court And while the outcome in the budgets, lack of access to jus- United States Supreme Court The principle of equal jus- tice, and now the third dan- was an important victory for tice, as you know, fi nds its ger. Last term, the United those of us who have grave most palpable expression States Supreme Court de- concerns about the unprec- in our state courts. There, cided the case of Caperton v. edented amounts of special- our most vulnerable citizens A.T. Massey Coal Company. come to seek access to their interest money that now line

12  THE BULLETIN judicial coffers, four justices, tacks, some appropriate and you go about your legal work including Chief Justice John others not, the single great- complaining from time to Roberts, strongly disagreed, est threat to judicial indepen- time when a case is delayed apparently dismissing out of dence is fairly modern and or an unfair decision issued, hand the amicus brief fi led uniquely American, and that telling yourself that there’s by the Conference on behalf is the fl ood of money coming nothing that you can do to of the chief justices of fi fty into our courtrooms by way make a real difference? Or states and six territories. of increasingly expensive and will you use your consider- volatile judicial elections.” able voices, your skills, your Many of you – most of you, I The single greatest threat to energy, your advocacy and suggest – live in states where judicial elections. These are your infl uence, individually, all or part of your state judi- strong words from a respect- regionally and nationally, to ciaries are elected and then ed, a revered, justice. confront this crisis? face re-election. You have fi rst-hand experience with A CHALLENGE TO I turn again to Justice such elections. You know THE AUDIENCE O’Connor. “Knowledge about full well the ways in which the ideas embodied in the special-interest money, at- Seated this morning in this Constitution and the ways in tack ads and the loosening room are some of our nation’s which it shapes our lives is of ethical strictures on judi- most successful and powerful not passed down from gen- cial campaign speech have attorneys. The question for eration to generation through transformed the nature of ju- me is how you will respond the gene pool. It must be dicial elections. What were to the crisis in state courts. learned anew by each gen- once low-key, inexpensive Will you simply dig deeper eration,” she said. But who contests for a seat on the ju- into your pockets to pay for will be the teachers? diciary have become multi- ever more expensive election million dollar scorched-earth campaigns for judges? Will What will you take away campaigns of the sort John you stand mute, hoping that from this meeting in Boston? Grisham described in his re- elected judges will criticize Collegiality, of course. A re- cent book, The Appeal. judicial elections? Will you newed enjoyment of what it remain silent while distin- means to be a trial lawyer, as- When judges have to look guished, thoughtful, impar- suredly. A discovery that the over their shoulders before tial judges are driven from Red Sox are surely the best. I deciding a case – or worse, offi ce because of baseless at- hope so. when they make an implied tacks on them? And some of promise to look over their you know which states I’m But as you walk the Free- shoulder before deciding a talking about. dom Trail and visit Bunker case – when litigants enter Hill, as you confront modern the courtroom hoping that Unless you speak up, do you technology and learn about their attorney has contribut- really expect that the hate- the effects of social media on ed enough to a judge’s elec- mongering will disappear? jurors, I hope that you will tion coffers, we are in trou- Will you stand by while the also carry home with you ble, deep trouble. third branch of government the words of the Massachu- is brought to its knees by in- setts Constitution: “A gov- Once again, the eloquence of suffi cient funding, or will ernment of laws and not of Justice Sandra Day O’Connor: you cry out that justice is not men.” When John Adams “While our judiciary has al- the same as transportation placed that phrase into the ways faced signifi cant at- or yes, even healthcare? Will L

THE BULLETIN 13 Massachusetts Declaration naut of apartheid. At the time the consequences can be ex- of Rights in our Constitu- the impediments to estab- traordinary. The only thing tion, he was not indulging in lishing a free society founded necessary for the triumph of a rhetorical flourish. He was on principles of justice and evil is for good men and wom- expressing the aim of those equality seemed insurmount- en to do nothing. May that who, with him, framed the able. But the impediments charge never be made of you. Declaration of Independence were surmounted. The prin- and founded this republic, a ciples of justice and equality government of laws and not did prevail. How? How? Thank you. of men. I have learned that when each In South Africa as a young of us refuses to accept what student, I faced the jugger- appears to be the inevitable,

Photograph By George Panagakos Past Presidents facing inductees as induction charge is read.

14 w THE BULLETIN BYLAWS AMENDED AS TO EMERITUS FELLOWS

At its October meeting, the Board of Regents approved a revision of Section 3.1(c) of the College’s Bylaws, relating both to the status and the dues of Emeritus Fellows.

This amendment refl ects the current reality that many members who continue to prac- tice law well beyond the traditional retirement age have in the past had the choice of paying full dues or of being listed in the College roster in a category that implied that they were retired.

Under the revision, Fellows who have been dues-paying members of the College for at least ten years and who have attained the age of seventy-eight or who have ceased to engage in the active practice of law because of age, illness, infi rmity of other reasons determined by the Board of Regents to be suffi cient may, upon written application, be granted Emeritus status.

The revision creates two categories of Emeritus status, which will be separately noted in the published College roster.

Those Fellows who have attained the age of seventy-eight or older, but who have not ceased to engage in the active practice of law will, upon making such a request, be des- ignated in the College’s annual roster as “emera.” Commencing with the fi rst calendar year after being granted such status, such an Emeritus Fellow will have the obligation to pay thirty per cent of the dues then payable by regular Fellows.

Those fellows who have ceased to engage in the active practice of law will be designat- ed as “emerr” and, commencing with the fi rst calendar year after having been granted such status, will be relieved of the obligation to pay dues. Fellows who are initially granted Emeritus status because of their age and who thereafter retire will, upon notifi - cation to the College, be reclassifi ed as “emerr.”

In order to insure uniform interpretation and application of the Bylaw provisions relat- ing to Emeritus status, including a uniform defi nition of “active practice of law,” each such request will be routinely referred to the appropriate Regent before the Board of Regents acts on the application.

THE BULLETIN 15 FELLOWS STEP FORWARD TO REPRESENT GUANTÁNAMO DETAINEES “The experience of a lifetime”

A bedrock principle of the Rule of Law is the right of every person accused of crime or in the custody of a government, however despised he may be, to be represented by counsel. As we were reminded at the College’s Annual Meeting in Boston, that principle had found its way to the New World by 1770, when John Adams, who would someday be President of the United States, volunteered to defend British soldiers accused of the murder of colonists in what history refers to as The Boston Massacre.

In the wake of the terrorist attack of September 11, 2001 on the New York World Trade Center and the subsequent invasion of Afghanistan, many of those captured were classifi ed as enemy combatants and sent to the United States Naval Station at Guantánamo Bay, Cuba, a place the United States Government contended was beyond the reach of its federal courts. Later, a number of other persons who had been seized and held in other parts of the world were transferred to Guantánamo.

Their detainment has been the subject of ongoing debate. Indeed, in various national meeting programs over recent years, the College has attempted to air all sides of that debate, most recently in the Spring 2008 address of former General Counsel to the Department of Defense, William J. Haynes in Tucson.

In January 2005, the College’s Executive Committee had authorized the Access to Justice Committee, which has for a number of years made known to Fellows opportunities for pro bono representation, to offer them the opportunity to represent Guantánamo detainees. As in all such cases, the Fellows who volunteered undertook the representation as individuals, and not on behalf of the College, donating both their services and the attendant expense.

College Past President and current College Foundation President Michael A. Cooper of New York, who has represented one such detainee, has undertaken to collect and document the experience of the Fellows who undertook these representations. As is the case with his repre- sentation, his signed article which follows refl ects the experience─and the perspective─of an individual advocate representing a client.

16  THE BULLETIN New York, New York extern for several years. In 2004 Guantánamo counsel. Twenty- that extern was Gitanjali “Gita” six Fellows have responded. The December 2009 Gutierrez, who was spending the following report is drawn from year working with the Center for those survey responses. At least 42 Fellows have repre- Constitutional Rights (“CCR”) in sented, and many continue to rep- New York City. CCR was one of * * * * * * * * * * * * * * resent, detainees at the Guantá- the few public interest organiza- namo Bay Naval Station, almost tions to take up the cause of the The 84 detainees represented by certainly the largest number of Guantánamo detainees, and in- College Fellows come from twen- lawyers affi liated with any orga- deed it was the fi rst. ty countries: Afghanistan (5), nization to have responded to the Algeria (6), Bosnia (6), Canada need for volunteer counsel for a Griffi nger learned of CCR’s (1), Egypt (1), England (2), Iraq group who are not just unpopular, work through Gita Gutierrez and (2), Libya (3), Mauritania (1), but widely despised. brought it to the attention of the Morocco (2), Pakistan (3), Qatar College’s Access to Justice Com- (1), Russia (1) Saudi Arabia (32), That number was ascertained mittee, of which he was a mem- Sudan (1), Syria (2), Tunisia (1), by comparing the College roster ber. The Committee, then co- Tajikistan (1), Uzbekistan (1) and with a list of counsel representing chaired by William B. Crow of Yemen (12). detainees compiled by the Portland, Oregon and Christine Center for Constitutional Rights A. Carron of Montreal, endorsed My client, Adel El Ouerghi (Al (“CCR”). The results of that the concept of encouraging Fel- Wirghi), a Tunisian, was one of comparison were checked against lows to represent detainees. The four detainees needing counsel an article in the Spring 2005 Committee’s recommendation whose names were given to me edition of the College Bulletin. was enthusiastically supported by CCR. I chose to offer my Additional Fellows may have by Regent Liaison Dennis R. services to Adel because I had undertaken the representation of Suplee of Philadelphia, and the the names, address and telephone detainees since 2006. Executive Committee concluded number of his family, which during a conference call on Janu- I thought would enable me to ary 20, 2005 that it was appropri- obtain information that might be Fellows have volunteered from ate for the College, through the useful in representing him. The all over the country—from Access to Justice Committee, to address and telephone number Honolulu, Hawaii, to Burlington, offer Fellows the opportunity to turned out to be incorrect, but a Vermont, and from Portland, become involved. Tunisian lawyer with whom I Oregon, to Jacksonville Beach, was put in touch was able to track Florida. They have, in the words Almost fi ve years later, this them down. A second factor of one knowledgeable observer, seems an appropriate time to affecting my selection was my expanded the representation of gather information about the assumption that, as a prosperous, detainees “from lawyers only in experiences of Fellows who developed country, Tunisia had an DC and NYC to a national pro have represented detainees and acceptable human rights record, bono project.” to share that information with which would result in Adel’s the fellowship at large. To that appropriate treatment if he were This outpouring of volunteer Fel- end, in September 2009 James repatriated. lows is the result of the follow- R. Wyrsch of Kansas City, ing fortuitous coincidence. The Missouri, current Co-Chair of the (That assumption proved to be Gibbons PC law fi rm in Newark, Access to Justice Committee, and entirely incorrect. In fact, Tunisia New Jersey, of which Fellow Mi- I sent a survey questionnaire to has been found by the U.S. chael R. Griffi nger is a partner, the 42 Fellows I have been able has sponsored a public interest to identify as current or former L

THE BULLETIN 17 Department of State to “continue and a few weeks later committed can safely be returned to his to commit serious human rights suicide. George and Jeff have home country or resettled else- abuses.” U.S. Dep’t of State, been seeking information about where?) Tunisia: Country Reports on their former client’s treatment Human Rights Practices—2006 in a FOIA action in the Western Most of the detainees represented (March 2007), http:www.state/ District of North Carolina. by Fellows are unknown to the gov/g/drl/rls/hrrpt/2006/78864. world beyond their families. htm. Two former detainees Of the 84 detainees represented Their names will probably whom the United States by Fellows, 31 or more have die when they do. But at least repatriated to Tunisia in been repatriated to their home three will have their places 2007 have been tortured and countries, and 11 have been in constitutional and political convicted of terrorism-related resettled elsewhere. The history: Lakhdar Boumediene, offenses in trials falling far remainder fall into three Salim Ahmed Hamdan and below international standards categories: (i) some have Omar Khadr. for judicial proceedings. See been cleared for release and Human Rights Watch, Ill-Fated are awaiting repatriation or Boumediene, represented by Homecoming: A Tunisian Study resettlement, after having been Washington, D.C. Fellow Seth P. of Guantnamo Repatriations, determined not to be a threat to Waxman, was the successful http://hrw.org/reports/2007/ the security of the United States, Petitioner in the Supreme Court tunisia0907 (September 2007).) (ii) others are awaiting or are in decision bearing his name that trial before a federal district court established three landmark Each of the Guantánamo or military commission, and propositions: (i) Guantánamo representations by College (iii) still others are considered detainees are entitled to invoke Fellows has its own story, as too dangerous to be released, the constitutional privilege of does each of the detainees but cannot be brought to trial habeas corpus, (ii) the provisions represented. Some of those for one or more reasons, for of the Detainee Treatment Act of stories have had belated happy example, the fact that necessary, 2005 were not an adequate and endings. Thus, within the past self-incriminating evidence effective substitute for habeas few months, the Uzbek client given by them was obtained by corpus, and (iii) the Military of Past President Michael E. treatment now acknowledged Commission Act of 2006 Mone of Boston has been given to have met the universally operated as an unconstitutional refuge in Ireland, where he has accepted defi nition of torture and suspension of the writ. On recently been reunited with his consequently is inadmissible. remand, Boumediene’s counsel family in County Mayo. (Mike persuaded the District Court Mone is the fi rst to give credit (I am not permitted to tell you to grant their client’s habeas for the successful resettlement into which category my client petition, and he now lives as a of his client to his son, partner falls: a typical example of the free man in France. and in this instance co-counsel, often puzzling, indeed, seem- Michael.) ingly quixotic determination Another detainee, Salim Ahmed by the Government of whether Hamdan, has been represented In contrast, the representation information is classifi ed or not. by Fellow Harry H. Schneider, by Charlotte, North Carolina What conceivable national se- Jr. of Seattle. On Hamdan’s Fellows George Daly and curity interest is furthered by petition, the Supreme Court held Jeffrey J. Davis of Mane concealing the fact that an indi- in 2006 that the then existing Shaman al-Habardi ended vidual once detained as an en- military commission procedure when al-Habardi, who was on emy combatant is now viewed had not been authorized by a hunger strike, refused to see by our Government as suffi - Congress and violated both George (or so George was told) ciently non-threatening that he Common Article Three of the

18  THE BULLETIN Geneva Conventions and the not permitted any contact with grill. This friendly gesture has United States Code of Military a client for eighteen months fostered a sense of camaraderie Justice. In response to the because the judge assigned among individuals who in most decision, Congress passed the to the case delayed ruling on instances have not previously Military Commission Act of an unopposed motion to enter known each other but who have 2006, under which Hamdan was the omnibus protective order shared a common pursuit. the fi rst detainee to be tried. applicable to all detainee habeas After a three-week trial, Hamdan cases. All but one of the Fellows was convicted, but sentenced by serving as counsel to one or a military jury to serve only an Then, there have been the more volunteers have made additional fi ve months. complicated logistics of visiting the trip to Gitmo, one, John A. the client. Guantánamo can be Chandler of Atlanta, as many as The third detainee whose story reached by counsel by only one 20 times. In this respect, special is widely known is Omar Khadr, route, a 3-3½ hour fl ight from Fort notice must be taken of Edmund a Canadian citizen, the client Lauderdale in an ancient prop Burke, who has traveled from of Fellow Barry Coburn of plane that is deafening and has Honolulu to Guantánamo eight Washington, D.C. Khadr is no bathroom. Accommodations times, each trip requiring three or believed to be the only Westerner are provided on the leeward four days and travel of roughly remaining at Guantánamo and side of Guantánamo Bay in the 10,500 miles. perhaps the youngest detainee at Combined Bachelors Quarters the age of 23. He is charged with (renamed the Combined The routine of visits to detainees having murdered an American “Visitors” Quarters when the never changes. You take a serviceman when he was 15, in fi rst large press contingent came bus or walk from the CVQ to an encounter in which he was to cover the initial military the ferry dock on the leeward himself severely wounded. As of commission proceeding). There side of Guantánamo Bay for this writing, he is on trial before are two air carriers serving the 8:00 a.m. ferry. The ferry a military commission. Guantanamo: Lynx Air and Air ride takes about 20 minutes to Sunshine, known to some as “Air reach the dock on the windward Whoever the individual client Sometimes.” (I have actually side, where counsel is met by a may be, the Guantánamo seen a listing of FAA-regulated military escort and van. After representations undertaken by carriers in which Air Sunshine’s being given an identifi cation College Fellows have certain safety ranking was dead last.) badge, you are bussed to the site elements that distinguish them The incoming fl ight on Lynx of your interview, which is never from other court proceedings. Air arrives between 5:00 and identifi ed in advance. You meet 6:00 p.m., at which hour there your client in a secure room, First, having undertaken the is only one restaurant open near where he is tethered to the fl oor representation, counsel has the CVQ, and that restaurant by an ankle chain. My fi rst four not been able to visit his or her closes early, leaving only pizza visits were in a room measuring client until after having received and buffalo wings at the adjacent roughly a claustrophobic 6 feet security clearance, which can be bar. Necessity being the mother by 8 feet. On the way to the a painfully slow process. It took of invention, a nice tradition has camp, the driver stops at a fast Houston Fellow Murray Fogler developed over the years. At the food outlet, where you can buy eight months to get clearance end of an interview day, counsel eggs, toast or a muffi n and coffee for his fi rst visit. In my case already on the island purchase for your client. the process lasted fi ve months. food at the commissary for Securing clearance has not been counsel who will be arriving that The interview days vary little. the only obstacle to meeting afternoon, and both groups dine You arrive at the interview room with the client. Mike Mone was together at a communal outdoor L

THE BULLETIN 19 around 9:00-9:30 a.m., meet with relatively fortunate; visits by other tered by the court or the govern- your client until approximately counsel to Guantánamo have ment is proposing to transfer the 11:30, are escorted back to the been cancelled, without either client in the near future to anoth- fast food outlet, return to see your notice or explanation, leaving er country. client at 1:30 p.m. or thereabouts counsel with nothing to show for (with food, if he has expressed 24 hours or more of travel. Counsel’s experience in federal a desire for it), and conclude the court has also been frustrating. interview at 4:30 p.m. As noted Several Fellows have expressed The fi rst detainees arrived in above, a stop is made at the dismay at the obstacles the Guantánamo in January 2002, commissary for provisioning on Government has put in their yet it took two and one-half years the way to the ferry dock. way when they have sought to secure a determination by the to meet with their clients at Supreme Court in Rasul that the You are usually permitted to take Guantánamo. I’ve already noted federal courts had jurisdiction notes during the meeting with that it has taken some Fellows over the Guantánamo detention your client, but these notes are several months to obtain the facility and the claims asserted taken by the guards at the end security clearance necessary by individuals held there, of the meeting and given to a to visit Guantánamo. Other and another three years for military “privilege review team” Fellows have complained of the the Supreme Court to hold in to read before they are eventually short interview days (shortened Boumediene that detainees could mailed to you. You may not further when the client has not challenge their detention and leave any documents with your yet been brought from his cell conditions of confi nement on client at the end of the interview. to the interview room when constitutional grounds. The interview is monitored you arrive) and the inability to by video but supposedly not bring certain documents into the Due to venue requirements, wired for sound, although most interview room. These practices, the habeas petitions fi led on counsel prudently assume that which in many cases are varying behalf of detainees have been their clients interviews are being and unpredictable, have impeded centralized in the United States recorded. counsel’s ability to provide District Court for the District of effective representation. Columbia. It is my observation, Every once in a while, you and I’m sure I am not alone, that are told upon arriving at the Written communication between the receptivity of the individual interview site that your client, counsel and client is diffi cult and judges of that court to the who is not given advance notice time-consuming. You must send petitions and other applications of the interview, does not wish to a letter (in both English and a by detainees for relief has varied see you. I was refused a meeting language understood by the cli- widely. Indeed, Boumediene on my fi fth visit, which I found ent if he is not English-speaking) was in reality two consolidated puzzling because I thought I had for military review, presumably certiorari proceedings from developed a good rapport with to ensure that you are not com- contrary decisions by two district my client. I wrote him a letter municating classifi ed informa- judges as to whether detainees on the spot urging him to see me, tion. Only in the past year has could assert any constitutional to which he agreed. It turned it been possible to arrange a tele- rights in federal court. out that he had been sleeping phone conversation, which again soundly when awakened for the is monitored by a military repre- Although there has been a certain interview, of which he had not sentative. These impediments amount of common treatment of previously been apprised, and prove diffi cult when counsel procedural issues—for example, he semi-consciously waved off needs to communicate promptly there is a single order governing the messenger, turned over and with a client, as when an order the handling of classifi ed went back to sleep. I have been affecting the client has been en- information in all cases—

20  THE BULLETIN individual judges determine the do so and by the Government’s I assume that every Fellow merits and, in most respects, predilection for making argu- who volunteered to represent a the timing of the hearing and ments that are so specious as to detainee expected that within a disposition of procedural issues. verge on being unprofessional. year or two he or she would be As a result, some petitions have To give but one example, the participating in a merits hearing been handled with relative Government opposed the ini- in either a habeas proceeding expedition since Boumediene, tial next friend habeas petition I or a military commission while others remain effectively fi led, before I met my client and trial. Yet four to five years stalled, a source of great had been retained (thus neces- later, the vast majority of frustration for counsel—and sitating a next friend petition), the detainees have not been their clients. Some petitions on the ground, among others, brought to trial, and many— have been pending for more than that my detainee client did not perhaps most—of them never fi ve years, while the petitioners need a next friend because he will. It is also noteworthy that have been held in conditions of could have fi led a petition him- in the 38 habeas proceedings, close confi nement with limited self—even though the client did brought by Fellows and other ability to communicate with not speak or write English and lawyers, in which hearings on their families and counsel. had no concept of his even argu- the merits have been held, the able constitutional and statutory petitioners have prevailed in The delays have been compound- rights, much less any familiarity 30 and been denied relief in ed by the reluctance of Govern- with venue limitations and pro- only eight. ment counsel to provide discov- cedural requirements. ery unless and until ordered to

*******************************

For all its frustrations, the opportunity to represent Guantánamo detainees has been for most, if not all, Fellows serving as counsel “the experience of a lifetime” (as one has put it) and, in another’s words, “the best thing I have done.” The treatment of detainees by our Government has been, in many respects, a stain on the history of the administration of justice in this country. The lawyers who have represented detainees have tried, each in the circumstances of his or her case, to obliterate that stain and restore the rule of law. And those of us who are College Fellows hope that our service as counsel to detainees has refl ected well on the College, even though our representations have been undertaken in our individual or fi rm names.

I am reminded of a Boston lawyer who two centuries ago not only undertook the representation, but secured the acquittal, of the British captain charged with ordering the Boston Massacre. In his old age, that lawyer, John Adams, our second President, refl ecting on his long and productive life, observed that his defense of the British captain was “the best piece of service I ever rendered my country.” I, for one, feel that way about my representation of Adel El Ouerghi, and I know I am not alone.

Few of us would have had that opportunity were it not for those early conversations between Mike Griffi nger and Gita Gutierrez, the enthusiasm of the Access to Justice Committee and the support of the Executive Committee. They provided the impetus for what a long-time Fellow has called “the most noble thing that has come out of the College.”

Michael A. Cooper, New York

December 2009

THE BULLETIN 21 22  THE BULLETIN *Some responses stated that merits hearings had been held but did not state whether the petition was granted or denied or remains pending.

COLLEGE ELECTS NEW OFFICERS AT ANNUAL MEETING IN BOSTON

Joan A. Lukey of Boston, Massachusetts was installed as the College’s new President, succeeding John J. (Jack) Dalton of Atlanta, Georgia.

Gregory P. Joseph of New York, New York was chosen as President-Elect. Chilton Davis Varner of Atlanta, Georgia will serve as Secretary Thomas H. Tongue of Portland, Oregon will serve as Treasurer.

THE BULLETIN 23 THE DARK SIDE OF TECHNOLOGY IN THE COURTROOM: ONLINE AND WIRED FOR JUSTICE, WHY JURORS TURN TO THE INTERNET

“One of the social evolutions we’re looking at is much less deference to authority universally and much more a sense of entitlement to their own opinions and perspectives. And so we really need to assume that they’re not going to simply take the word of authority on its face without some appreciation for why it’s important.” Juror consultant Dr. Douglas L. Keene.

Th e Internet, emails, Google, Facebook, Twitter, MySpace and other technological breakthroughs have changed the way judges and lawyers need to deal with jury selection, jury instruction and jurors themselves, a continuing legal education panel emphasized at the College’s 59th Annual Meeting in Boston.

Regent Phil Kessler of Detroit, Michigan moderated the group, which consisted of Sean M. Ellsworth of Miami Beach, Florida, Dr. Douglas L. Keene of Austin, Texas, U.S. District Court Judge and Judicial Fellow Donald W. Molloy of Missoula, Montana, and Fellow Elizabeth N. Mulvey of Boston. Ellsworth and Mulvey had been involved in cases in which the Internet played a major role. Judge Molloy had presided over such a case. Dr. Keene is a clinical and forensic psychologist and litigation consultant with a national practice.

Douglas L. Keene “I think we proceed this morning on the premise that personal technology devices are, in fact, highly addic-

24  THE BULLETIN tive. Indeed, their use by mil- per cent of persons 18 to 30 use literally, well-intended jurors after lions of people across the country the Internet, 81 percent for those they get caught doing Internet and in other parts of the world 31 to 62 and 50 percent for ages research will go, ‘I didn’t know has become so ingrained as to be 63 and over. “Grandma has a that meant Googling,’ because refl exive . . ,” Kessler said in his cellphone now,” Keene told the it’s just second nature.” introduction. “Given this fact of audience. “Everybody does. Even contemporary life, it was inevita- my father. It’s amazing.” Keene also had a word of advice ble that the misuse of technology about law fi rm websites. “If you would invade the courtroom and Th e legal profession is no have in mind your website as a ultimately pose threats to the fair exception, he said. “Eighty-six marketing tool and you’re talking administration of justice.” He percent of young lawyers use about all of your success or your described examples where four social networks. But of those view of the justice system or years ago a prosecutor who was over 36 years old, 66 percent of whatever it may be, you have to trying an infamous gang mem- them are also engaged in social assume that jurors are reading ber . . . discovered that specta- networks. Th e American Bar that, and that whatever image tors were using camera phones Association did its own research you’ve created for yourself in your to photograph key witnesses, and found that 39 percent of eff ort to attract clients is going so that some of those witnesses lawyers use smartphones in court, to have some sort of resonance had to be relocated for their own but it’s jumped to 60 percent over with those jurors. Whether it’s safety. the last two years.” good or bad, you have to know it’s going to be the lens through “And then there’s the case of Th ere has been a 133 percent which they listen to every word the North Carolina judge who increase in Web use since 2000, you say at trial. And so you really was recently reprimanded for and 73 percent of the population need to kind of take a second friending a lawyer on Facebook,” has Internet access, Keene said. look at it. Th ey . . . don’t have Kessler said. “Th e lawyer Internet use has exploded further the same value as marketing tools happened to be involved at the with the advent of more and as they might have fi ve or ten time in a child custody hearing more portable devices, such as years ago. . . . [T]hey . . . are that was occurring before the BlackBerrys and Net Phones. image tools, and your challenge same judge. Th e judge was is to fi gure out, ‘Okay, what kind also reading and even posting “And then we have the impulse of image am I going to project, Internet messages about the to communicate automatically, and how is that going to strike a litigation while it was occurring. the irresistible impulse to be balance between the image that He accessed the websites of the sending email messages in the I need my clients to see as being parties as well. After the hearing, middle of important meetings. primary and that which a curious the judge disclosed his activities, We see it in courts all the time juror would fi nd of interest.’” disqualifi ed himself, and ordered where it’s obvious people are a new hearing.” using their BlackBerrys while Th e next panelist, Elizabeth N. their witness is on the stand,” Mulvey, described an actual case Keene led off the panel discussion Keene said. “We break the in which she represented the by saying the problems created rules without considering the family of a 12-year-old boy who by jurors’ independent research implications of them. Th e judges died of undiagnosed diabetes. are becoming worse by the give instructions about don’t Th e defendant doctor was month. He pointed out that 92 do independent research; and L

THE BULLETIN 25 blogging about the ongoing trial of all the defense lawyers. When it comes to instructing under a pseudonym. She was jurors not to do their own able to access the blog and used It was then Judge Donald research on the internet, Keene the doctor’s comments to settle Molloy’s turn to talk about the related the reaction to an article the case. eff ect of electronic technology he published on the subject. on the courtroom, asserting “[T]here are . . . people who said, Mulvey concluded her presenta- only half in jest that any lawyer ‘You will not deprive me of an tion by saying, “So the real ques- who communicates with his opportunity to do appropriate tion is, what lessons do you learn client by email ought also to research. Th at is true justice.’ from this? Th e fi rst one is obvi- notify his malpractice insurance Th ere is this sense of it being a ous. When the client walks into carrier. Molloy said that he read kind of a grassroots sort of . . . your offi ce, fi gure out, does the news reports about the mistrial the public fi nally has the power client have a blog? Does the cli- in Ellsworth’s case and used back again because they have the ent have a Facebook page? If the that as an occasion to modify opportunity to investigate things client is a business, what might instructions to the jury in a major on their own, and they don’t be on that business’s website case then in trial in his court. have to rely on whatever’s going that you wouldn’t want your op- He said that he also learned the on at the trial. . . . Nobody ponent reading? And 1.a. is, in power of the Internet when he refl ected any insight into the light of electronic discovery ob- allowed University of Montana hazards of doing that, the hazard ligations, is there anything you law and journalism students to of not being able to confront can and should do about it at blog the case and was astounded your accuser, not having an that point?” She also pointed out to fi nd there were over 100,000 opportunity to challenge the the need for trial management to hits on the blog in about a three- supposed authority, whatever lessen the misuse of information month period. that Internet information is. And from outside the trial record and I think really the vast majority the necessity of a lawyer’s know- Molloy went on to point out the of the problem is ignorance on ing what is out there that may problems created by the E-Gov- the part of the public, just kind aff ect his or her case. ernment Act, and by PACER. A of a naive lack of appreciation curious juror can access either for how it happens to create Panelist Sean Ellsworth then before trial, if he knows which problems.” continued the presentation by case he is being called for, or describing the unfortunate turn during trial such things as mo- In the course of the presentation, of events in a Florida trial in which tions in limine aimed at keeping the panelists had advice on he was defending a pharmacist information away from jurors, the kind of research and in an Internet pharmacy trial. plea agreements that could aff ect trial preparation that this After two and a half months of the veracity of witnesses, orders phenomenon calls for. Ellsworth trial, a juror admitted that he that have been entered in the related, “Well, the fi rst thing I’m had done independent research case . . .indeed everything that going to do is fi nd out what’s over the Internet. When the has happened in the case that out there on them, whether they judge polled the jury, seven has to be put on the record. In know it or not. . . . [W]e are other jurors admitted the same addition, Internet research can now in a world where in civil behavior and the judge declared uncover such things as prior law- cases as well as criminal cases, the a mistrial. Among other things, suits on the same issue involving expression used to be, ‘Don’t say they had looked at the websites the same parties. anything on the phone that you

26  THE BULLETIN wouldn’t want the government pretrial strategy may need to be and, I think, the fairness of the to hear’ that now goes, ‘Don’t shaped in light of the possibility process.” . . . email anything or post that jurors may examine the record anything or blog anything that in the case online. Th is may, for Molloy then quoted from a you wouldn’t want everyone to instance, call for withholding book, In the Hands of the People, know,’ because when you’re in a motions in limine until the case by William Dwyer, a Federal lawsuit . . . you come under a is called for trial. District Judge in the Western microscope. And the people that District of Washington: “For are looking into that microscope Molloy observed, “I think the a long time the jury remained are making decisions that are lawyers have to work with the self-informing. It relied on the going to aff ect the rest of your local courts, state courts, federal knowledge it already had. As lives. If you have enough time courts, to establish what the communities grew, as jurors and you’re fortunate enough to parameters are and what the needed more information, get somebody at the beginning rules are going to be, because if witnesses were sometimes called where you can tell them that, you don’t do that, you’re going to testify. Th e door through that’s great. Sometimes they to get into lots of situations which the trial lawyer would come into our offi ce and there’s that there are just going to eventually walk was open. Th e too much stuff out there, and be complications.” Molloy assumption that the jury would there’s nothing we can do other continued, “I guess my point know enough to decide without than know what’s out there. If would be that the lawyers have help gave way gradually to the they come into our offi ce, we to be aware of this technology assumption that it would need can have this conversation and and all of its imaginable uses to hear evidence. Many cases we can say, ‘Listen, it’s a small and misuses and help the courts, were decided on a combination world, everything you post is the judges, deal with it, because of what the jurors knew at the going to be something that the there are a lot of us who think start and what they learned in prosecutor is going to look at, we know something about what’s court.” the plaintiff ’s lawyer is going to going on, and we really don’t.” look at, the defense lawyer is “By the end of the 17th century, going to look at and the jurors Th e judge said the problem seems the law required the verdict be are going to look at, so be careful to be getting bigger. “[T]he based solely on the evidence what you post.’” tension is that in a democracy received in court. It was seen you want transparency, and you that fairness and impartiality are As to trial preparation, the want the public to be able to served by lack of foreknowledge. panelists suggested that a lawyer understand what is going on. We had moved from requiring should know everything that is But the fl ipside of that is that that a juror know about the case available on the Internet about in the advocacy system, the trial to assuming that he would not themselves, opposing counsel, process, if the purpose of it is to know enough to requiring that their own client, all the other get as close as we can to the truth he know as little as possible.” parties, witnesses and, if the jury and to have that judgment made list is available, jurors. Th ey have by uninformed or unbiased Molloy ended the program to assume that their opponent persons, then you have this remarking, “And I think it may and perhaps even the jurors will confl ict with the ready access of be back to the future.” have done the same. Th ey also information . . . and there’s a real suggested that in some instances tension between transparency

THE BULLETIN 27 bon mot

HUMOR FROM THE DARK SIDE

I can recall some years ago being astonished when a lawyer who I know very well, a talented, sensible, disciplined trial lawyer, told me that he routinely locks his BlackBerry in the trunk of his car when driving. . . . [H]e said, “[H]onestly, I can’t resist using it if it’s in the compartment of the car with me, even when I’m driving at high speeds.” This technology addict is not a Generation Y lawyer. He’s 67 years old. . . .

A few years ago, I was preparing to argue a case in the Sixth Circuit . . . and the general counsel of a . . . company that I was representing traveled from across the country to meet with me in my offi ce to see to it that I was properly prepared for the argument and to evaluate the state of my presentation. He brought with him his primary outside litigation counsel. And this was a meeting that was . . . very important to the outside counsel, because he received most of his relatively vast caseload from this lawyer . . . . And so I watched with alarm in my conference room as he repeatedly succumbed to the temptation of using his new BlackBerry while the general counsel was making observations and putting important and sometimes diffi cult questions to me. My friend displayed all too clearly the telltale signs that you all have seen and probably displayed from time to time: eyes looking down, fi ngers working feverishly on the little keyboard. No one in the room misunderstood what was going on except the lawyer who was locked in the seductive trance of the BlackBerry.

So what did I do? Because he’s a friend, as suddenly as I could, I began fi rmly kicking him under the table. . . . And . . . when I infl icted enough pain, I broke the trance. He awakened to the problem. He put his BlackBerry away, and we continued to work on the preparation for the case. This addicted friend of mine was in his fi fties at the time that this occurred. He is an outstanding trial lawyer and as conscientious a professional as one could expect to fi nd.

And by the way, if anyone in the room might be wondering if we have any addicts in the College, the answer is, “Of course we do.” In fact, I have to tell you that both of the lawyers in these two stories are Fellows of the College.

Regent Philip J. Kessler, Introducing the Dark Side Panel bon mot 28  THE BULLETIN bon mot

We were in the middle of the W.R. Grace case, which was the largest environmental crime charge in the history of the United States. The case had gone on for fi ve years before we started trial. I think I have probably the record of being one of the few federal district judges to be reversed three times before the trial started.

District Judge Donald W. Molloy, JFACTL

From January to April of this year, I was in federal court in the Southern District of Florida, defending a pharmacist in an Internet pharmacy trial, and this is basically doctors and pharmacists who would interact with patients to distribute medications. We, as the defense, called it tele-medicine. The government called it drug traffi cking.

Sean M. Ellsworth

But, in fact, if you have grown up in an era where that kind of access to information and dissemination of information is just automatic— Twitter: bizarre notion. Why anyone thinks anyone wants to know those things about what you’re doing is just amazing, but hundreds and hundreds of millions of people are on this crazy network explaining what kind of Starbucks coffee they got today.

Dr. Douglas L. Keene

We actually had . . . somebody summoned for jury service, that wrote about a four-page letter to me, telling me that he was a good patriotic American and he was coming and he would do his jury service and that was his civic responsibility, but he was far better trained in the use of fi rearms than anybody in the court, and so he would serve as a juror, but under his Second Amendment rights, he was going to bring his fi rearm with him. So that would have been interesting in the jury room.

Judge Donald M. Molloy

Did you know that there’s a search part of Google that allows you to search in newsgroups and commentaries? It’s sort of terrifying. When I did it on myself, I found my mother on a food group talking about my husband’s appetite, which happened to be true, but . . . .

Elizabeth Mulvey bon mot L THE BULLETIN 29 THE THEFT FROM THE GARDNER MUSEUM

THE WORLD’S LARGEST UNSOLVED ART THEFT

In the early morning hours of Sunday, March the 18th, 1990, as Boston was recovering from Saint Patrick’s Day, two men wearing police uniforms knocked on the side door of the Isabella Stewart Gardner Museum and in less that an hour and a half committed what remains the world’s largest unsolved art theft. They cut paintings, including three Rembrandts, a Manet and a Vermeer, out of their frames, stealing a total of eleven paintings and drawings, one Chinese artifact and the gold fi nial from a frame housing a Napoleonic fl ag, art works valued today at over $500 million.

Gardner Heist Panel In a far-ranging panel discussion moderated by Regent J. Donald Cowan, (left to right) Jr., three speakers addressed different aspects of the Gardner theft. College Judah Best, Fellow Judah Best, a frequent lecturer on art theft, addressed the modern Anthony Amore and response of museums. Boston Private Detective John P. DiNatale, who John P. DiNatale had initially evaluated the museum’s security system, but had not been involved in the ongoing investigation, described how the heist was carried out and gave what he termed a “street view” of where the stolen works might now be. Anthony Amore, the current Director of Security at the Museum, described his ongoing efforts to solve the theft and to recover the stolen art works.

30  THE BULLETIN THE THEFT There was no insurance on the and over 120,000 stolen paint- stolen objects. There is a stand- ings and other works of art are Designed, constructed and ing $5,000,000 reward, offered listed in its fi les. Its staff scans completely fi nanced by Isabel- by the museum itself, for their art auction catalogs, eBay and la Stewart Gardner, a wealthy return. The statute of limita- art fairs worldwide. The FBI patron of the arts, the Museum tions has run on the original has an art crime team, which was opened to the public in 1903 crime, yet nineteen years later also maintains a fi le on stolen and soon became recognized as it remains the world’s largest art. It estimates that losses one of the fi nest private art col- unsolved art theft. from art thefts approach $8 lections in the world. On the billion each year. night of the theft, there were MODERN MEASURES TO two museum guards inside the PREVENT ART THEFT The usual reasons for stealing Gardner, one seated at a panel art are to create forgeries and of video camera screens, the Judah Best, of Washington, sell the original, to steal on other seated next to an alarm D.C., a past chair of the ABA “consignment” from corrupt directly connected to the po- Litigation Section and a Com- collectors or to collect a ran- lice. When two men wearing missioner of the Smithsonian som, usually from an insurer. police uniforms appeared at a Museum of Art, began his pre- Security creates a conundrum. side entrance to the museum sentation by showing slides of The expense of modern secu- and told one of the guards that the stolen Gardner Museum rity is burdensome to galler- they were there to investigate works and of many other fa- ies, and some security devices a disturbance on the grounds, mous works of art, including make the art inaccessible to he let them in. He was soon the Mona Lisa, that have been viewers. Some security ex- lured from behind his desk, stolen in the past, some even- perts regard inside jobs as a where the alarm was located, tually recovered, some still larger threat than even a pro- and was then handcuffed and lost. These thefts have victim- fessionally planned break-in. heavily taped, as was then the ized public museums, private second guard. Both were taken museums, private homes and Modern technology raises to the basement of the Gardner, churches. the possibility of implanting where they were found the next microchips in works of art to morning, handcuffed to pipes. Modern art theft and issues of utilize radio frequency identi- ownership and authenticity fi cation (RFID). This is a mea- The two men wearing police prompted the 1969 creation sure, however, that curators uniforms proceeded to go of the International Founda- fear will damage or compro- through the Gardner art tion of Art Research (IFAR) to mise the work of art. In addi- collections. When one of the study and combat fraudulent tion, this would require some men began to cut a Rembrandt art practices, including theft. sort of global positioning sys- from its frame, an alarm went IFAR, along with insurance tem to track the location of the off. He smashed the alarm, companies, helped to create stolen work. Several larger nothing happened and he the Art Loss Register, which galleries are already employ- went on about his mission. uses data from its register ing this technology. Incredibly, the thieves left and from Interpol to publish untouched a painting by a quarterly stolen art report. Best summarized his presenta- Titian, The Rape of Europa, then It has the world’s largest da- tion thus: “[T]he tide is turning considered to be one of the tabase of stolen art and antiq- with regard to the protection fi nest paintings in the world. uities. Over twelve hundred of art. Electronic information items are added each month, L

THE BULLETIN 31 about art makes registration the museum’s then director and the FBI had hampered simpler. Sophisticated da- of security said, “As a matter the investigation. Offering tabases make accurate prov- of fact, there were. You know, his “street level” perspective, enances easier [to document]. we had an incident where he noted that in the past, sto- RFID and global positioning there looked to be a fi ght out len art had been used as a “get will make art identifi able and on the street and somebody out of jail card” by people ar- locatable. Security is more banging on the door, ‘help rested for other crimes and sophisticated, and the pub- us, help us, help us,‘ but the who had traded the art for a lic is more aware of potential guards didn’t let them in..” lighter sentence. In prepa- damage and danger to fragile And there had been anoth- ration for his appearance, works of art.” er incident involving some he had inquired among his problem out on the street. former clients, in and out of Nevertheless, he concluded, From this DiNatale deduced, jail, their counsel, retired law “thieves will always be with “Clearly the people who were enforcement people and cor- us, so take care.” involved in this were looking rections offi cers about where to see what is it going to take the stolen works might be. THE STREET VIEW to get somebody out? And if He could eliminate many of we can’t get them out, we’re the usual suspects, since they John P. DiNatale has two col- going to have to fi gure out had served long prison terms lege degrees and thirty-two how to get in.” and had not used the works years of investigative experi- as a “get out of jail card.” ence. One of his clients was DiNatale speculated that the a trustee of the Gardner Mu- thieves had had the museum His conclusion was that the seum, and so he was called in under surveillance for a time. crime was committed by lo- to do an initial evaluation of They could watch people cal people, that the people the museum’s security and come and go. They could take directly involved might long how the theft could have hap- down license plate numbers ago have been paid off by pened. “As my dad [a Boston and get the name and address those for whom they carried policeman] used to say, ‘Se- of the owner of the vehicle out the heist and thus would curity systems are designed from the Registry of Motor not now know where the art to keep honest people honest. Vehicles. Thus, they probably is, that the art may still be in You need to catch the thieves knew who the guards were. the Boston area and that it one at a time.’” Indeed, he They had learned that they may well someday surface. found that the museum’s se- were not going to get them curity system was designed out of the museum, and so THE VIEW FROM principally to make sure that they had to devise some way INSIDE THE MUSEUM no one did anything to harm of getting in. Clearly the se- the paintings while the mu- curity staff was ill-trained to Anthony Amore, who after seum was open. prevent this. 9/11 was instrumental in re- organizing national security He asked the museum staff, DiNatale, not involved in the efforts and was the Federal “[H]ad there been any sort of ongoing investigation of the Aviation Agency’s lead agent incidents involved in the last theft, speculated about the in responding to the attempt- week or the last month, any- present whereabouts of the ed terrorist attack of Rich- thing at all that would lead art works. He remarked that ard Reid, the so-called “shoe you to believe that maybe you ongoing animosity between bomber,” has been the Gard- were being watched?” And local law enforcement people ner Museum‘s Director of Se-

32  THE BULLETIN curity since 2005. He began bilities. Noting that many re- million reward comes from his presentation by asserting tired investigators have kept the museum itself and that that he believes the stolen art their records, he has under- he is willing to deal directly is in the local area and that it taken to create a database to with whoever now has the will not be long before it is use for what had come to be stolen art and to go to the seen again. known in his former employ- government authorities to ment with Homeland Securi- seek an immunity agreement He noted that for fi fteen years ty as “link analysis,” fi nding in exchange for its return. He the museum had sat back and commonalities between leads ended his presentation by so- let the public authorities do that come in, information he liciting any information that the investigation their way has researched himself and might aid him in his efforts. without success, and that he things that were known from himself has now undertaken the beginning. to sort through the evidence, trying to narrow the possi- Amore asserted that the $5

And, in fact, they started binding the hands of the two security guards [at the Gardner Museum]. The guards said, “Why are we being arrested?” They said, “You’re not being arrested. This is a robbery. Just keep your mouth shut, and you won’t get hurt.”. . .

About . . . the fi fth year anniversary [of the Gardner Museum theft], I got a call from a reporter . . . . She said, “You know, one of the things that’s come up is people don’t really think these people were profes- sionals that pulled this off.” I said, “Well, I don’t know, but it’s been fi ve years. They just walked away with the largest art heist in the history of the United States. They left no physical evidence. Nobody knows who they are or where they are. I’d have to say if they weren’t professionals then, they’re profes- sionals now. If there’s a test you have to take, they passed it. . . .

I’ve been involved in the return of a priceless Stradivarius violin that had been stolen from an individual. My dad [a policeman] happened to be friends with the owner of the building where he [the thief] lived, and they got us involved, and we got involved with the FBI. And it was one of the fi rst times I had been really working on the street with the FBI and got to see how they work fi rst-hand. And my job was, when I got a high sign from my father, that I was going to come over with $25,000 in cash, hand it to the driver. My dad was going to take the violin, and we were all going to get arrested.

So I got the high sign. I went in. I gave him the money, and the next thing, the big bullhorn. “This is the FBI.” And everyone’s looking and everybody’s hands are up in the air. . . . We get arrested, we get hand- cuffed, we’re thrown in the back of the car. They take the perpetrators off, and my dad and I get out, and they take the handcuffs off us.”

Well, around 9:30, 10:00 that night, my dad calls me. He says, “Where’s the money?” I said, “What are you talking about?” He said, “The FBI just called me, and they said you still have the money.” I said, “Dad, I gave the guy the money. He put it under the front seat.” “I’ll call you back.” He calls me back ten minutes later. “Guess what? They let them go, and they gave them the car.”

Detective John P. DiNatale, Speaking about the Isabella Stewart Gardner Art Theft bon mot THE BULLETIN 33 FIRST CIRCUIT CHIEF JUDGE ADDRESSES BOSTON MEETING

Sandra L. Lynch, Chief Judge of the United States Court of Appeals for the First Circuit, the fi rst woman appointed to that court, fi lling the seat vacated by Associate Justice Stephen Breyer, addressed the 59th Annual Meeting of the American College of Trial Lawyers.

A graduate of Wellesley, where she was a phi- losophy major, and of the Boston University Law School, where she was Articles Editor of the Law Review, she clerked for Judge Raymond J. Pettine of the U.S. District Court for Rhode Island, then served for one year as an Assistant Attorney Gen- eral of the Commonwealth of Massachusetts and four years as General Counsel to the Massachusetts Department of Education. She then practiced law for seventeen years at Foley, Hoag and Eliot in Bos- ton, where she was head of the litigation depart- ment, handling complex litigation. She also served a term as President of the Boston Bar Association.

Sandra L. Lynch Named to the Court of Appeals in 1995, she became Chief Judge in 2008. One law review survey found that among all the United States Circuit Court Judges hers were the most frequently cited opinions.

34  THE BULLETIN ********************* LAWYERS AND HONESTY know the story that a client sent him $25 and he returned “Plain, That is the reason for the title, $10 and said, “You must Honest Men.” and I want to tie and talk think I’m a high-priced man.

about lawyers and honesty. You’re too liberal with your I welcome you to the ranks of Early in April of this year, the money. $15 is enough for the local counsel in Boston, and New York Times had a story job. I send you a receipt for this is indeed a special group which was headlined “A Land 15 and return to you a $10 of lawyers. Why the title of in Mourning for Honesty.” bill.” Lincoln was not only my speech? Well, it actually is I read the headline, and I honest himself, but he valued not a description of the male thought they were talking honesty. In eulogizing a population of Boston. It’s like about this country, because friend, he said, “In truth, he Lake Wobegon. We all know in many ways our country was the noblest work of God, they’re all handsome and is a land in mourning for an honest man.” clever and everything else. honesty. But it was not about the United States. It was Both of these honest and de- But the title is “Plain, Honest about Argentina. And it was cent presidents were lawyers, Men,” and it actually comes about the outpouring of grief, and there is no surprise in from a phrase used about the the spontaneous outpouring that. Honesty is an important framers of the Constitution. of grief of hundreds of part of being a good lawyer, Now early on, the brilliance thousands of people in important to our profession, of the Constitution as a docu- Argentina on the death of and, for reasons I want to dis- ment, as a theory of govern- their former president, Raúl cuss, important to our coun- ment, was recognized; and so Alfonsin. try. Now, we all know many the framers were duly com- of the substantive doctrines plimented, and then some. Now, he had last been presi- of law are meant to reinforce The framers were back at the dent in 1989, about twenty honesty. Our securities laws time compared to gods who years earlier. And why was require full disclosure of ma- had given us a sacred text. he so spontaneously mourn- terial information without

ed? One citizen said that Mr. misrepresentation. A de- Now, one of the framers Alfonsin represented honesty, mand for honesty is woven became annoyed by this consensus-building, dialogue into the fabric of the law. It deifi cation, and he would and transparency. I thought underlies our formal system have none of it. Gouverneur the phrasing was memorable: of ethics and our status as a Morris of Pennsylvania, honesty, consensus-building, profession. who played a key role, said, dialogue and transparency. “While some have boasted COMPLEXITY AND of the constitution as a word And I then thought about HONESTY from heaven, others have American presidents, and given it a less righteous it reminded me of the great I’m not going to use the term origin. I have many reasons American president who “honesty” to talk about our to believe that it is the work was known for his honesty system of ethics. You are a of plain, honest men.” and integrity, Honest Abe, Abraham Lincoln. You all L

THE BULLETIN 35 very sophisticated group of thing as being right. You I heard Christina Romer, people, and I would not de- can very rationally reach the head of the Council of mean you. But what I want wrong result. Economic Advisors, speak to talk about is the relation- two nights ago, and she said, ship between complexity Judge Posner, Seventh Cir- “We, as a country, simply and honesty, and the fact that cuit, has said, “What has now did not realize the fi nancial lawyers are very well-suited plunged the world into de- regulatory structure we put to look at complexity, ana- pression is a cascade of mis- in place after the Depression lyze it and pierce it. That’s takes by rational business- had not kept up.” And she because in the law, our prob- men, government offi cials, identifi ed a series of things. lems are rarely black and academic economists, con- Some of them had to do with white. To use the song from sumers, homebuyers, operat- we simply didn’t understand the ‘60s, they’re often paler ing in an unexpected, fragile the effect of the instruments shades of gray. economic environment.” He from non-bank fi nancial went on to say that what is institutions. But more than The problems facing our retarding recovery is not the that, more seriously, she said country and our profession unreasoning fear of which we had no mechanism to now seem to be, to me, Franklin Roosevelt so fa- assess the risk to the entire more diffi cult than any of mously spoke, but the ratio- fi nancial system, because the problems we have faced nal fears of everyday people. it never occurred to us that during my lifetime. And so, individual failures could when we look at our present So if the explanation is not trigger a risk to the entire dismal economic crisis, what downright fraud and it is not fi nancial system. can we learn about honesty? irrationality, what was going on? Well, partly, as Samuel So why did this failure to I’d like to reject two themes Johnson said over 200 years understand complexities and about how we got into this ago, “It is much more from consider the implications of mess, and they’re themes carelessness about truth than complexity happen? One you’ve heard. The fi rst is from intentional lying that answer, of course, is the that the major reason for our there is so much falsehood in simple fear of thinking about economic woes is simply the world.” But I also think, complexity. Another answer that there was massive, in part, we are here because was given by Attorney old-fashioned fraud of the of a fear of complexity, that Brooksley Born, of whom sort practiced by Bernie many people simply did not I’m enormously proud. She Madoff. Surely there was understand the fi nancial in- was then the chair of the old-fashioned fraud, but struments that led us to this Commodity Futures Trading that is entirely too simple an situation. Corporation. She predicted answer. what would happen, but Arthur Levitt, the former chair no one would listen to her. Another thesis is that the of the SEC, said, “Regulators Her explanation was, while crisis was caused by irrational should have considered the it’s complex, recognizing behavior. I don’t think so. implications of the exploding the danger wasn’t rocket Being rational is not the same derivatives market.” And science, but it was contrary

36  THE BULLETIN to conventional wisdom and a huge public rage out there power. contrary to the economic about the failure of honesty I think in that context, interests of Wall Street at in our economic institutions lawyers are going to have the time. and in our government. to play a larger role in ensuring the honesty of our Even Larry Summers in Now, in my view, in our institutions. Honest lawyers his baccalaureate speech to society there have been two willing to take on big and Harvard students as he left great outside forces which complex issues are needed in in 2006 warned students to have kept our government our country even more today be mindful of the threats and our private institutions than in Abraham Lincoln’s that come from elevating to standards of integrity and time. the values of consensus, honesty. One is the bar and conformity and comfort the law. The other is a free Our former Treasury above the truth. investigative press. Secretary, Robert Rubin, in his book In An Uncertain LAWYERS AND THE PRESS But let’s consider the present World, said that we have IN A COMPLEX WORLD status of the free investigative to recognize that almost press. In Boston, one of all signifi cant issues are Now, there’s one group of our newspapers, a great enormously complex and people in our society who do newspaper, The Boston Globe, demand that one delve into have the skills to analyze and its very survival is at risk. the complexities to identify address complexity and give The Globe’s investigative the relevant considerations honest assessment of risks. stories revealed sexual abuse and the inevitable tradeoffs. It’s lawyers, and in particular of children by priests and There is a risk as we delve into it is trial lawyers, and in the corruption of FBI agents those complexities that we particular it is this group. I cooperating with organized will do what H.L. Mencken think that there is an even crime. This exposure, along warned about: “For every greater need emerging now with the work of trial lawyers complex problem,” Mencken in this country for lawyers on both of those topics, led to said, “there is a solution to play that role of being the reform. which is neat, simple and honest brokers in our society. wrong.” I am very worried about what Some people predicted that happens to the integrity of I’m asking your help in we would see changes in our institutions when there is keeping our society honest. I our culture which would no longer any press watchdog think you are the best group ultimately demand greater and there is no one taking out there that could possibly honesty and greater the place of investigative address this need. compliance with the law. journalists. One might Tamar Frankel wrote a book predict there will be a rise Thank you very much. called Trust and Honesty: in corruption in public and America’s Business Culture at a private institutions because Crossroad in 2006. I think she there is less of a check on has quite a passion. There is improprieties by those in

THE BULLETIN 37 bon mot She joins us today to address the topic Plain, Honest Men. Chief Judge Lynch, I must say, that the title for your talk has the men here this morning expecting your remarks are all about them, yet the women here this morning know better. Please welcome Chief Judge Sandra Lynch. President John J. (Jack) Dalton, introducing First Circuit Chief Judge Sandra L. Lynch.

Judge Lynch: Of course I’m using the term “men” in a generic sense.

* * * * * * * * * * * * I’d like to share with you one of my favorite stories from the federal judiciary. It’s not about a Court of Appeals judge. It’s about a federal trial judge in New York who is a former criminal prosecutor and had been an experienced trial judge for a while. A criminal defendant appears before him, and the man is standing there alone, and he’s wearing a long white fl owing robe, and he’s got his hair down to his shoulders. The judge looks at the defendant rather quizzically and says, “Don’t you have a lawyer with you?” And the defendant said, “God is my lawyer.” And the trial judge said, “I suggest you get local counsel.”

Chief Judge Sandra L. Lynch First Circuit Court of Appeals bon mot

NATALIE DEWITT RETIRES Natalie DeWitt, former Membership Manager for the College, retired December 31, 2009 after 17+ years of service for the College. Her organizational skills and wide ranged base of knowledge and experience through the years will be greatly missed by her colleagues. Her tenure began in 1992 with the Annual Meeting in London and Paris and her fi nal venue in 2009 was the Annual Meeting in Boston. She looks forward to spending more time with her family and to future endeavors and new opportunities in retirement.

38  THE BULLETIN GUMPERT AWARD TO PRO BONO LAW ONTARIO

The 2009 Emil Gumpert Award for Excellence in Improving the Administration of Justice, went to Toronto-based Pro Bono Law Ontario (PBLO). The fi fth winner of this award, PBLO had originally established a pilot program in Toronto that recruited, organized and trained private practitioners to staff a courthouse facility where income-qualifi ed litigants could receive in-person brief services.

Named in honor of the College’s founder and chancellor, the Gumpert award is the most prestigious award conferred by the College upon a public or private program.

According to Gumpert Committee chair William J. Kayatta, Jr. of Portland, Maine, the Committee found that in Canada there have not been as many institutionalized structures for matching eligible clients with private practitioners who are willing to provide pro bono assistance as there are in many parts of the United States. There are private lawyers willing to fi ll that need, but a relative absence of structures for matching them with clients.

PBLO proposed in its application to the Gumpert Committee to use the $50,000 grant that accompanies the award to open up a full-blown offi ce in Ottawa, the nation’s capital, with the hope that it would succeed in and of itself, but more importantly, that it would spark replication across Canada.

Kayatta noted that all nineteen members of the Gumpert Committee had read every one of the thirty-fi ve applications, narrowing them down to three fi nalists. Then, due diligence teams composed of two committee members each visited each fi nalist. From the reports of those teams, the committee recommended a winner to the Board of Regents.

Kayatta said, “By selecting PBLO, we sought to encourage and challenge our colleagues in Canada to speed up and broaden the change in the culture and practice of organized, systematic pro bono representation of low-income Canadians.

PBLO Executive Director Lynn Burns, accepting the award, disclosed that it would go to help launch the Law Help Ottawa Center. She noted that the Toronto pilot program had demonstrated the existence of a huge unmet need by serving 4,000 low-income unrepresented people in the fi rst eight months of 2009.

THE BULLETIN 39 COLLEGE INDUCTS 129 AT BOSTON MEETING

UNITED STATES John H. Feeney, DeMaurice F. Smith, ILLINOIS: LOUISIANA: Richard H. Schoenberger, Washington Jonathan C. Bunge, Charles S. McCowan, Jr., San Francisco, James A. Christman, John Michael Parker, ALABAMA: Robert M. Slattery, FLORIDA: Kevin P. Durkin, Baton Rouge Charles P. Gaines, Walnut Creek Edward K. Cheff y, Chicago, Talladega, Naples James J. Hagle, MARYLAND: Wilbor J. Hust, Jr., SOUTHERN Urbana, Guy R. Ayres III, Tuscaloosa, CALIFORNIA: GEORGIA: Ocean City, Benjamin H. Brewton, Steven L. Larson, Anthony A. Joseph, David C. Scheper, Libertyville, Gregg L. Bernstein, John D. Saxon, Michael H. Steinberg, Augusta, Baltimore, George P. (Pete) Paul R. Lynch, Joe R. Whatley, Jr., Los Angeles Mount Vernon, John J. McCarthy, Birmingham Donaldson, III, Rockville, COLORADO: Albany, James E. Neville, Belleville Timothy J. Sullivan, ARIZONA: James R. Allison, Robert C. Martin, Jr., Greenbelt Anthony J. Hancock, Denver Columbus, IOWA: Phillip H. Stanfi eld, Douglas N. Peters, MASSACHUSETTS: CONNECTICUT: Connie L. Diekema, Phoenix, Decatur, Des Moines, Miriam Conrad, Anna C. Ortiz, Cindy L. Robinson, Elizabeth V. Tanis, Edward T. Hinchey, Bridgeport John C. Gray, Globe, Atlanta Sioux City, Th omas F. Maff ei, Rick A. Unklesbay, DELAWARE: Th omas D. Waterman, Joseph F. Savage, Jr., Tucson HAWAII: Boston, Beth H. Christman, Peter B. Carlisle, Davenport Wilmington David P. Hoose, NORTHERN Brook Hart, KANSAS: Northampton CALIFORNIA: DISTRICT OF Honolulu Bruce Keplinger, Christopher J. Beeman, COLUMBIA: Overland Park, MICHIGAN: Pleasanton, IDAHO: Keefe A. Brooks, Robert G. Abrams, William G. Dryden, Scott K. Logan, Richard C. Bennett, Michael J. Barta, Prairie Village, Birmingham, Oakland, Raymond D. Powers, Paul J. Manion, Bruce R. Genderson, Boise, Zackery E. Reynolds, Patrick W. Emery, David G. Handzo, Fort Scott Detroit, Jamie O. Th istlethwaite, Peter C. Erbland, Norman H. (Skip) Pylman, Adam S. Hoffi nger, Coeur d’Alene, Santa Rosa, Bruce J. Klores, KENTUCKY: II, R. Keith Roark, James T. Gilbert, Grand Rapids Steven J. Roman, Hailey Brian L. Schwalb, Richmond

40  THE BULLETIN MINNESOTA: Bobbi C. Sternheim, PENNSYLVANIA: TEXAS: CANADA John P. Mandler, Joseph F. Wayland, Samuel W. Braver, Sam F. Baxter, Chris Messerly, New York Kevin P. Lucas, Marshall, ATLANTIC Michael T. Nilan, Pittsburgh, Eugene W. (Chip) Brees, II, Minneapolis UPSTATE NEW YORK: Francis J. Deasey, Austin, PROVINCES: Joseph E. Zdarsky, Dianne B. Elderkin, Jim Burnham, Robert G. Grant, Q.C., MISSISSIPPI: Buff alo John A. (Jack) Guernsey, Dallas, Raymond F. Larkin, Q.C., Paul V. Cassisa, Jr., Halifax NORTH CAROLINA: Michael M. Mustokoff , Tom Godbold, Oxford, Philadelphia, Houston, Ralph E. Chapman, W. Douglas Parsons, BRITISH COLUMBIA: Clinton, Steven E. (Tim) Riley, Jr., Douglas W. Poole, Richard B. Lindsay, Q.C., Clarksdale, Erie Galveston Alan W. Perry, Mack Sperling, Vancouver Greensboro Jackson PUERTO RICO: VERMONT: ONTARIO: Francisco J. Colon-Pagan, Richard I. Rubin, MONTANA: NORTH DAKOTA: Peter Cronyn, Keith W. Reisenauer, San Juan Barre, Ottawa, Michael D. Cok, Robert L. Sand, Bozeman Fargo RHODE ISLAND: Patrick J. Ducharme, White River Junction Windsor, OHIO: Marc DeSisto, NEBRASKA: Providence VIRGINIA: Marie Henein, Th omas J. Shomaker, Robert M. Kincaid, Jr., Michael E. Royce, Columbus, Robert M. Galumbeck, Brien M. Welch, SOUTH CAROLINA: Tazewell, Toronto Omaha John F. McCaff rey, Terry E. Richardson, Jr., Roger M. Synenberg, C. J. Steuart Th omas, III, QUEBEC: Barnwell, Staunton NEW JERSEY: Cleveland G. Trenholm Walker, Yvan Bolduc, Ronald B. Grayzel, Charleston WASHINGTON: Marie-Josee Hogue, Edison OKLAHOMA: Doug Mitchell, David B. Donchin, John L. Messina, Tacoma, Montreal Robert G. McCampbell, TENNESSEE: DOWNSTATE Oklahoma City Martin L. Salina, Olen G. Haynes, Spokane NEW YORK: Johnson City J. Bruce Maff eo, OREGON: Roland G. Riopelle, Joseph C. Arellano, Anthony M. Sola, Robert A. Shlachter, Portland

THE BULLETIN 41 INDUCTEE, RESPONDING, PRAISES JURY SYSTEM

As the verdict was read, Albert, not that tall but with a broad chest and strong arms, threw his arms around me and hugged me so tightly I literally had trouble breathing. With tears streaming down that grown man’s cheeks, he said, “Thank you. I have never had anybody fi ght for me before. Thank you.” And that’s why I’m a trial lawyer.

Th e response of inductee John D. Saxon of Birmingham, Ala- bama, given on behalf of his fellow inductees, was an eloquent tribute both to the trial bar and to the jury system. ************** [I]am a fi rst-generation lawyer. Th ere were no lawyers or judges in my family. My father never got past the eleventh grade, my mother never got past the seventh grade. No lawyers lived in our neighborhood or went to our church. Th e fi rst lawyers I met were at a men’s clothing store at 1018 Noble Street in An- niston, Alabama called Th e Locker Room. I had worked there in high school and during college breaks. . . .

In my practice in Alabama I represent individuals, usually in Federal court, who have been mistreated in the workplace, of which we have no shortage. For all the things I do, for all the things I enjoy, there is nothing, nothing, like trying a case. You all know that, or you wouldn’t be here. I’ll never forget Albert Watson, an African-American truck driver for an independent John D. Saxon petroleum company, called a racial slur by his boss. He object- Photograph by George Panagakos ed. Th e company took prompt remedial action: it fi red him. We tried his racial retaliation case . . . . When the jury returned, and it didn’t take them long, they found for the plaintiff and awarded a six-fi gure verdict.

As the verdict was read, Albert, not that tall but with a broad chest and strong arms, threw his arms around me

42  THE BULLETIN and hugged me so tightly I literally the shop fl oor who’s been grabbed terfered with under the Family and had trouble breathing. With tears and groped, called the N-word, made Medical Leave Act. And yet they streaming down that grown man’s fun of because of a disability or de- do come together, choosing using cheeks, he said, “Th ank you. I have nied a promotion because of her age, one of their own to lead them. Th ey never had anybody fi ght for me be- only in the courtroom does the word then debate and discuss and deliber- fore. Th ank you.” And that’s why of that employee count as much as ate. Th ey sift and sort the charts and I’m a trial lawyer. the foreman on the line, the HR di- the graphs, the accident reports and rector, the plant manager, the senior the photos, the fi re code records, the You are no diff erent. You are all here VP for Human Resources, only in emails, the memos, the performance because of your God-given talent, the courtroom, that great leveler of evaluations, the confl icting testi- your skills, your discipline, your hard North American society. mony, the arguments of counsel and work, your tenacity, a little bit of the charges, often confusing charges, luck, an overriding commitment to With our judges as our gatekeepers, or special jury interrogatories given your clients and to the adversary sys- we then do something that is abso- them by the judge. tem and a bed-rock belief in the rule lutely astonishing. While not every of law. We are all North America’s case results in a jury trial, in many Miraculously, out of that process advocates, whether we represent the cases we entrust the resolution of our these judicial novices, these new- government or the accused, corpo- disputes and disagreements, matters comers to the courtroom give us a rations or individuals, employers or often involving life and death, matters product called justice. It’s absolutely employees, manufacturers or con- often involving large sums of money, amazing. When we fi nally hear that sumers, insurers or insured, doctors to a collective group of individu- knock on the door, we bolt upright or patients, plaintiff s or defendants. als— not the learned class, not men in our chair, the adrenalin pumping, We are fi ghters and crusaders to de- and women trained for their role as our hearts racing, and we listen in fend and vindicate the rights of our fi nders of fact, but average people off rapt attention as that verdict is read, clients in the cause of justice. the street— the woman who changes for the courtroom, lest we forget, is our sheets at the motel, the man who not for the faint of heart. Half of Th e product liability lawyers in the handles our bags at the airport, the us rejoice at that verdict, but half do room know that a piece of earth-mov- retired English teacher, the secretary, not. And let’s be honest. All of us, ing equipment made by Caterpillar the unemployed handyman, the doc- all of us in this room have won cases can literally level a hill in no time, tor’s wife, the purchasing manager we thought we would lose and lost that a blast-hole drill manufactured of the local utility, the banker who cases we thought we would win. by Ingersoll Rand can tear away the loans us money to buy our cars, the face of the cliff . But we all know in salesman at the dealership who sells But for all its failings, all its imperfec- our minds and believe in our hearts it to us, the mechanic who works on tions, all its limitations, all its short- that the greatest leveler known to it, these are our jurors. comings, the jury system is unlike man is not a piece of equipment. It any other. It is majestic. And most is the courtroom. Th ey come together, most often hav- of the time they get it right: Th e duty ing never met before, six or twelve was breached, plaintiff was harmed, Only in the courtroom is the tiniest, strong, and they come knowing causation proved and the plaintiff loneliest, frailest individual or the nothing, nothing of self defense or recovered, or the plaintiff is exposed smallest of businesses on equal foot- reasonable doubt or bad faith or as a malingerer or a faker. Th e de- ing with the most powerful corpora- stress fractures on ball joints or the fendant was guilty of the crime and tion or entity of government. Only failure to warn or the failure to heed was convicted, or the jury concluded in the courtroom is the holder of a warnings, of the last clear chance doc- that, even though they might have single share of stock on equal foot- trine, of comparative or contributory thought that the defendant did it, on ing with the most respected, savvi- negligence, of the standard of care this particular day in this particular est board of directors. Only in the for inserting a catheter or whether courtroom, the prosecution did not courtroom is the lowly employee on the employee’s rights have been in- L

THE BULLETIN 43 meet its burden of proof, and the to say that I am a lawyer, that I am lawyers than trial lawyers, and there defendant walks. For novices, they especially proud to say that I am a is no higher honor for a trial lawyer do it pretty well. trial lawyer, and that I am honored than to be a Fellow of the College, tonight, as are my fellow inductees, for which high honor we sincerely It is because of that level playing fi eld to be a Fellow of the American Col- thank you. called the courtroom, it is because of lege of Trial Lawyers. Th ere is no that magical collection of individu- nobler profession, there is no higher als called the jury that I am proud calling, there is no greater group of

One of my courtroom heroes back in Alabama is Warren Lightfoot, President of the College from 2002-2003. Tonight (y’all can clap), tonight in tribute to Warren, I am going to deliver these remarks on behalf of all the Inductees in the same way in which he gave his closing arguments. I am going to start very slowly and just gradually peter out. . . .

I want to thank Jack Dalton for extending the invitation to me and the high honor to respond on behalf of my fellow inductees. When President Jack called, I was in Mobile in depositions. I returned to fi nd a voicemail message that said, “This is Jack Dalton. I am a lawyer in Atlanta and President of the American College of Trial Lawyers. I need you to call me back.” I thought, “Uh-oh, he’s going to say there’s been a mistake, or a recount, that as fi ne a fellow as I am, and as good a lawyer, I am just not quite American College of Trial Lawyers material, and because it would be so embarrassing for the College, they were going to make the President himself call that guy down in Alabama, and tell him the bad news.”

Well, thank God, he didn’t say anything like that. All he said was that he wanted me to stand up and speak on behalf of all the inductees to the very best trial lawyers in North America. Thanks Jack, no pressure there.

My wife asked me about this. She said would there be a lot of speeches, a lot of drinking. I said, “No, honey, actually, I don’t think there will be much of either. It’s just going to be lawyers and judges.”. . .

I mentioned my wife, Betsy. The honor of my induction belongs at least fi fty percent to her. For thirty-six years she has supported me in my every endeavor. She is my best friend, my biggest fan and my harshest critic. . . . Someone recently asked me . . , “Gosh, thirty-six years, that’s a long time. What’s the secret to being married for thirty-six years?” I said, “It’s easy. For thirty-six years we’ve both been in love─with the same man.”. . .

I . . . learned from Senator [Howell] Hefl in that a good lawyer has to have a sense of humor. You have to indulge the foolishness we put up with from some of the judges we appear before. Senator Hefl in regaled . . . with his stories of a small-town lawyer in northwest Alabama named No-Tie Hawkins. You would hear how No-Tie would win a case and go out and celebrate. He would stagger home at night, fumble with his keys, stumble across the threshold, falling down in the process. The commotion would wake his wife and she would holler down the stairs, “What do you have to say for yourself?” And No-Tie would holler back, “I don’t have an opening statement, but I will take questions from the fl oor.” Or No-Tie would lose a case and drown his sorrows at the pub. Again, he would stumble home, again he would wake his wife, again she would shout down the stairs. She said, “What do you mean coming home half drunk.” And he would say, “I ran out of money.” bon mot John D. Saxon 44  THE BULLETIN PRO BONO EFFORTS GO BEYOND COURTROOM

Most successful pro bono efforts do not involve a trip to the legislature to lobby for a new law, but that’s exactly what Fellow Chris Messerly of Minneapolis, Minnesota had to undertake in his efforts to achieve justice for victims of the 2007 collapse of the I-35W bridge.

Thirteen people died and fund of $36.64 million for 145 were injured when the 117 clients. bridge over the Mississippi River at Minneapolis fell Messerly, a partner in on August 1, 2007. Robins, Kaplan, Miller & Ciresi, was the chief But most victims would counsel for his law fi rm and receive very little, Messerly a consortium of 20 small knew, since Minnesota law fi rms across Minnesota capped the state’s liability who decided to take on the for any single incident at case pro bono. $1 million, to be divided among all the victims. His fi rm donated more than $2 million in time—2,250 As president of a state- hours in 2008 alone. The wide trial lawyers group, Chris Messerly fi rm also spent more than Messerly had experience $1.2 million on medical lobbying the state legislature, and so he led the and engineering experts and other expenses. effort to St. Paul to gain more compensation for victims and their families. Messerly is the recipient of the second annual “Pro Bono Award” from the American During the 2008 session, Messerly testifi ed Association for Justice for his role in the bridge more than fi fteen times before various collapse effort. committees, accompanied by some of the victims of the disaster. Eventually he helped draft the legislation that created a special state

THE BULLETIN 45 AMERICANS MAKING AND MADE BY THE CONSTITUTION

Massachusetts author William Martin, who has blended the historical novel and the mystery-thriller to create a unique genre, kept the Annual Meeting of the College in Boston spellbound with an address entitled, Americans Making and Made by the Constitution.

Drawing on his own work, particularly his latest book, The Lost Constitution, he gave his audience a tour, laced with humor, of some of the lesser-known byways of American history. In introducing him, Past President Stuart D. Shanor described Martin’s art as a master storyteller thus:

“In alternating chapters, William Martin creates . . . a fi ctional family, the members of which interact with . . . players in American history. He details the triumphs and the tragedies of this family from one generation to another . . . as he traces the devolution of an historic treasure. That historic treasure becomes the object of the . . . modern-day search of [his protagonist] Peter Fallon. . . . [H]e truly brings history to life . . . with meticulously researched historical fact and with vivid descriptions of the roads and the highways, the trails, the streets, landscapes, historic William Martin buildings, the well-known watering holes of Boston and New England as they were then, and as they have evolved to a modern day.”

Descended from a long line of Irish storytellers, Mar- tin, by his own account, majored in English before lunch at Harvard, worked as a historical research

46  THE BULLETIN assistant in the afternoon and that fl ag was right over here does not begin in 1776, and directed theater at night. Set- on Prospect Hill in Somerville whenever I come down here, I ting out for Hollywood, he . . . . It was January 1, 1776. . . . look out in that harbor, and earned a Masters in Fine Art George Washington had been I see the ship Arabella coming in Motion Picture Production watching his army melt away into Massachusetts Bay and from the University of South- . . . . The enlistments had up into Boston Harbor in 1630, ern California. He had written ended on January 1st. The the arrival of the Puritans. his fi rst novel, Back Bay, which British could have broken They dropped anchor, and had not yet been published, out of Boston (which was John Winthrop gave a speech, when he was given an op- under siege at the time) . . . a sermon, on the deck of the portunity to write the script in any direction and knocked ship . . . in which he looked for his only movie, Humanoids a hole in the Continental out at this land, which then from the Deep, which became a line and probably ended the was all green and much hillier cult classic. Revolution right there. and completely wild, and he said, “We must make of this a Back Bay became a New York But George Washington said, city upon a hill. And if we fail Times best seller, and Martin “Let’s put on a show.” And at this work, we will become a has since written seven more so, he had that fl ag, which story and a byword for all the historical novels, has over three had just been agreed upon. world.” And so, that in a way million copies of his books in . . the thirteen colonies, but is where American history print, and has authored a PBS the Union Jack in the corner, begins. . . . And I guess that’s documentary on the life of showing that . . . [they were] what we like to think we have George Washington. still loyal to the King, because been trying to do in American they had made something history ever since. . . . Plunging into his subject called the “Olive Branch by commenting on the Petition” to the King, and MARTIN’S APPROACH procession that had launched they were hoping that there TO HIS WORK the morning program, Martin could be reconciliation. led the audience on a trip Why am I drawn to historical through some of the more They rode out to the hill in fi ction? . . . First of all, you can obscure byways of history. Somerville, and they raised never have writer’s block . . . His remarks, edited for the fl ag. And the British on there’s always research to do. brevity, follow: Bunker Hill looked over and Secondly, there are always thought, “Those look like a characters, . . . characters you THE FLAG OF THE clown’s pantaloons. Or is it love, characters you love to GRAND UNION a surrender fl ag?” Well, they hate, characters you hate. . . . found out differently over the And you always have three- It was a pleasure to walk in next eight years. [T]hat story act structures. . . . [Y]ou can [to the dais] behind the fl ag of just popped into my mind as I analyze something as enor- The Grand Union. . . . [S]ome walked in behind that fl ag. . . . mous as the movement of of you may have noticed . . . those white Europeans from the 13 stripes and the Union Boston Harbor . . . all the way Jack in the canton. It’s just AMERICAN to the West Coast of America, one more little piece of New HISTORY BEGINS or something as discrete as England history. . . . [T]he fi rst the three days at Gettysburg, time that the British ever saw But Massachusetts history L

THE BULLETIN 47 and you will see the three-act “That one did pretty well fi rst draft of the Constitution structure by which all good . . . . That Peter Fallon charac- that’s been annotated?” And storytelling exists, the begin- ter is really becoming a fran- without missing a beat, he ning, the middle, the end: chise character for you. . . . said, “We have one.”. . . the character confronts the [A] few years ago when I was decision to act; the character thinking about what my next When I walked into the li- acts, the character confronts Peter Fallon novel would be, brary of the Massachusetts the consequences of his ac- I sat down with my agent in Historical Society, . . . waiting tions. Or, as I like to say, get New York, . . . and he said for me on a library table were the character up in the tree, to me, “How about a novel three manila folders. I opened throw rocks at him, and get about a lost fi rst draft of the the fi rst folder, and there, by him down out of the tree. United States Constitution God, is the fi rst draft of the Three-act structure is implicit on which all of the delegates United States Constitution. in historical momentum and have left their thoughts on Fifty-fi ve copies printed on in historical movements. . . . what the government really August 6, 1787, after they’ve ought to look like? And if we gone through a lot of the [A] little bit about some of my can get our hands on that lost debates, but before they’ve books and about the idea of fi rst draft, we will fi nd that hammered out the details, be- the lost artifact that becomes their vision of what America fore they’re fi nished. . . . The a talisman that holds a a story was supposed to be all about paper was heavy, heavy and together. I have used that ar- was completely different from well-made paper, large folio tifact through several books: what it turned out to be.” sheets, four of them, seven a lost tea set in Back Bay, the columns of type on the four lost log of the Mayfl ower in Well, I poked a few holes folio sheets, large column of Cape Cod, a lost Shakespeare in that. I said, “First of all, type down the right side of manuscript in Harvard Yard nothing was supposed to the page, 16-, 18-point type, . . . . One of the things I try to leave the room. There was a large enough to read from a do in these novels is not just to pact made by those gentlemen distance, and then a column show you the grand ideals of as they sat and debated that was blank. The column the historical fi gures that pass through those three long on the left was available for through the story, but also months in Philadelphia that notations. some of their failings as well. nobody would talk outside . . . [Harvard Yard] is about a of the room unless they were Then I moved to the second lost Shakespeare manuscript, in committee session.”. . . I draft. September 16, 1787, lost in the John Harvard Li- mentioned also that they that one quite similar to brary. And if those Puritans did ratify a Constitution the fi rst draft. And then I had gotten their hands on it, eventually, and so what did moved fi nally to the third they would have burned it, it matter what the notes were folder. I opened that, and because they hated Shake- on the fi rst draft? there was the printed copy as speare. . . . . it was promulgated in “The None of these things would Broadside,” printed in the THE GENESIS OF THE sway him. . . . I called Pennsylvania Packet and Daily LOST CONSTITUTION up a friend of mine at the Advertiser, September 17, Massachusetts Historical 1787, the fi nal Constitution, [A]fter I fi nished Harvard Society . . . and I said, “Peter, the one that they’re going to Yard, my agent said to me, have you ever heard of a try to get ratifi ed. Now, that

48  THE BULLETIN copy, of which thousands word, every punctuation thoughts on the document as were printed, today . . mark in this document to what a Bill of Rights ought . the last . . . one . . . went decides a question between to look like, and that’s the for $250,000 at auction. . . liberty and power.” jumping off point. . I go back and look at that fi rst one again: fi fty-fi ve The last article on that fi rst And in the modern story, Pe- copies printed for the fi fty- draft was the one that made ter Fallon gets involved be- fi ve delegates. Only sixteen me decide that I wanted to cause there is a move afoot of those copies still exist. write a novel . . . . The last to repeal the Second Amend- George Washington’s copy article in the fi rst draft, it ment, “A well-regulated mi- is at the National Archives. later got folded in a little bit litia being a necessity to the There is not a mark on it. . . . earlier in the second draft, security of the free state, the states that every offi ce holder right of the people to keep The draft that I’m looking in this government, federal, and bear arms shall not be at there, though, belonged judiciary and legislative infringed.” You all know to Elbridge Gerry of branches, shall take an oath that one. . . . I just use that Massachusetts, a delegate to to this Constitution. . . . We as a jumping-off point into a The Continental Congress, a all accept that. But then novel about the United States delegate to The Constitutional Elbridge Gerry, in his small, Constitution and some of the Convention, later the tight careful little script, people who have, in the pro- Governor of Massachusetts, puts in a caret between cess of being changed by it, Vice President of the the word “Constitution” helped to change the country. United States, and the man and the period, and writes Let me introduce you to three who gave his name to the beneath it “but no religious of them. term “gerrymandering.” test shall ever be required Elbridge Gerry’s draft of of any offi ceholder in this SHAYS REBELLION the Constitution contains government.” his annotations. It contains The fi rst of them is a stolid some of his thoughts and Just in case you’ve missed farmer, a man who basically ruminations. the part about the separation tills the soil, leaves no great of church and state, there thoughts behind, leaves Then I go back and look at it it is in his handwriting. I very little written record more closely. . . . There are saw that, and . . . it gave me of himself. We don’t really additions; there are deletions; chills. I said, “I have to write even know what he looked there are things marked out, a novel about this.” And so, like. He arrived back from there are little carets with I hatched a novel about a the American Revolution little sentences written in fi rst draft of the Constitution . . . at his farm in Pelham, the margins. A period is that belongs to one of the Massachusetts in the early changed to a semicolon, a New England delegates, and 1780s and soon saw his comma to a colon, et cetera, et the New England delegates neighbors losing their farms. cetera. When you look at this in caucus all start leaving document, when you look at their notations on it, because They were losing their farms Elbridge Gerry’s notations Elbridge Gerry is saying to because . . . Massachusetts on the document, you are them “I will not sign this had raised the taxes and had reminded of something that unless it has a Bill of Rights,” James Madison wrote: “Every and so they all leave their L

THE BULLETIN 49 stopped taking the Conti- disappeared back through a plaints of farmers like this, nental script that these men blizzard, back into the hills they needed a fi nancial sys- had been paid after their ser- of central Massachusetts. tem that did not work on the vice in the American Revolu- basis of barter and only with- tion. The state was only tak- While this rebellion was in the States, but would com- ing gold, because it was with going on, men from across municate across the thirteen the gold that they were pay- America were watching it. states. And they needed a ing back their debts from the George Washington watched real army to put down rebel- American Revolution. And it and said in a letter to Henry lions like this. every fall, the courts [came] . . Knox, “Only a Britain or a . . There would be bankruptcy Tory could have conceived of With all of that in mind, proceedings issued against such a dark cloud rising upon the men who went to farmers who had come back the brightest sun that has Philadelphia in May of 1787 from the American Revolu- ever risen upon democracy.”. . . . . had gone there only tion, and they would lose . . From France, Thomas to address the Articles of their farms, one after another. Jefferson observed what Confederation, but with the these Massachusetts farmers awareness of what rebellion Daniel Shays joined with were doing and said with like Shays’ Rebellion could a group of other farmers his sort of sanguine way in a do, they went hammer throughout Massachusetts letter to the president of Yale, and tongs at the Articles of and said, “This must stop. “Oh, what signify the deaths Confederation. They went We will close the Courts of of a few in a few centuries. completely outside of the Common Pleas, and we will The tree of liberty must be purview of their charge from rebel, and we will keep this watered from time to time the individual states and rebellion up until the State by the blood of patriots and began the process of creating of Massachusetts gives us tyrants both. It is the natural a Constitution under which some kind of relief.” And manure.”. . . we now live. . . . so in the fall of 1786, they marched on the courthouse Henry Knox wrote back to [Y]ou can walk all over in Northampton, and then on George Washington in a let- Boston and see the homes of the courthouse in Worcester, ter something that was also the men who helped to start and then on the courthouse echoed by Alexander Ham- the American Revolution. in Taunton, and nearby here ilton in one of the Federalist But when you go out to in Concord, and in Western Papers. “This time it’s just a central Massachusetts to see Massachusetts as well. farmer from Massachusetts, Daniel Shays’s house, you just a lieutenant from your won’t see it. . . . [W]hile the This was Shays’ Rebellion. In army. Next time it could be a house survived in a falling- January, in a blizzard, he and Caesar or a Cromwell. What down condition until the a column of farmers, some of will we do then?” early 1900s, the men of Boston them former military men, fi nally had their victory. attacked an armory on the THE BIRTH OF THE They bought up four towns high plain above Springfi eld. CONSTITUTION in central Massachusetts in . . . Grapeshot was fi red the 1930’s and damned the over their heads, and then With that knowledge that Swift River, and it began grapeshot was fi red into they needed systems by to rise and inundate those them, and they retreated, which to address the com- four towns. And one of the

50  THE BULLETIN fi rst things that it inundated wrote that book that started at Petersburg. . . . He was left was the property on which this great big war?” for dead on the fi eld. He was Daniel Shays had done his breveted to brigadier general farming. It then inundated Directly across the street at the time. He went home, the property on which the from that house is a . . . house he recovered, and then he tavern had stood where . . . that was lived in by a announced that he was going the rebellion had begun. . . young professor of rhetoric back. And they said, “Why . So all physical evidence of by the name of Joshua Law- are you going back? You’ve Daniel Shays─even how he rence Chamberlain. Cham- served enough.” He said, “It looked─has been erased. berlain saw what was hap- is fate. It is ordained. The pening in the Civil War, and South has defi ed the honor THE ROLE OF PLACE even though he was sup- and authority of the Union. posed to have gone on sab- They have defi ed the Consti- One of the things that I like batical in the spring of 1862, tution.”. . . to do in these novels is write . . Chamberlain looked at [a] about places as much as . . . small civil war between [His] service was so highly about people and give you a couple of religious groups regarded that at the end of a perspective on places, like [at Bowdoin] and decided American Civil War, the very Daniel Shays’ home having that the much larger civil end when the Grand Army of been transmuted into the war that was exploding on the Republic paraded down Quabbin Reservoir. the American scene was a far Pennsylvania Avenue that more signifi cant event, went spring, the last man in the There is a place in Bruns- to Augusta, Maine and told parade, riding on his horse, wick, Maine where you can the governor that he’d like to carrying the American fl ag stand and you can look to be part of the next regiment in the position of absolute your left and you can look to that was raised. honor, was Joshua Lawrence your right, and in one span Chamberlain. He went back of your gaze, you will see the And the governor of Maine to Maine, returned to that very beginning and the very said to . . . Chamberlain, “You little house across the street end of the American Civil don’t know a lot of military from the church where War, the alpha and omega. matters.” And he said, “No, Harriet Beecher Stowe had To your left you will see a but I have always been inter- been inspired. He would Carpenter Gothic church, in ested, and what I don’t know, become the president of which on a March Sunday in I will learn.” . . . Joshua Law- Bowdoin, he would teach 1851 a woman . . . the wife of rence Chamberlain learned so every course at the college Calvin Stowe, Professor of well that on the second day at and he would become the Natural and Revealed Reli- Gettysburg, he made a series Governor of Maine. gion at Bowdoin, . . Harriet of command decisions wor- Beecher Stowe, had a vision thy of a four-year graduate WOMEN’S SUFFRAGE of a slave rising up to his of West Point, which saved rightful reward. She went the federal left on that day. . In 1870, . . the fi nal amendment home and wrote a novel. Ten . . “Stand fi rm, ye boys from of the American Civil War was years later, Abraham Lincoln Maine.”. . . You will meet him ratifi ed in the Constitution met her in the White House, in The Lost Constitution. . . . the 15th Amendment. shook her hand and said, “So you’re the little woman who Chamberlain was wounded L

THE BULLETIN 51 That amendment stated that Prohibition as well. But there CONCLUSION voting rights would not was another amendment that be withheld or rescinded needed to be enacted. And So, there you have three on the basis of race, color in 1916, she joined with other Americans making and or previous condition of women and formed what was made by the Constitution: A servitude. During that called the Front Door Lobby. reluctant farmer, a ferocious period of the Civil War, there They went to Capitol Hill defender of the Constitution had been women on Capitol and pounded on every door and a woman who used Hill who had been working of every Senator and every the system in its most very hard, led by Susan B. Representative in order to get sophisticated way in order to Anthony and Elizabeth Cady them to get that amendment achieve an important change Stanton, trying to have one out to the States. in American society. more word put into the 15th Amendment: “Gender.” And Now, as you all know, the When Ben Franklin left the they could not get it. Constitution provides . . . Constitutional Convention a mechanism for its own on the night after it had About year after. . . Cham- change, but it isn’t a very easy been signed, after the berlain became governor, mechanism to make operate: Constitution had been signed a young woman was born two-thirds majorities in the in Independence Hall, . . Mrs. in Melrose, Massachusetts. House and Senate, and then Powell . . . the party-giver at . . . [Her] name was Maud you have to go back and the time in Philadelphia , . . Wood Park . . . . She grew get a three-quarter majority looked at Ben and said to him, up, attended Radcliffe Col- of the States approving the “So what have you given us, lege, graduated in the class amendment. Is it any wonder a republic or a monarchy?” of 1898 and was astonished that since the Bill of Rights in To which Franklin replied, “A to fi nd that . . . only two of 1791, there have been some republic, if you can keep it.” the 72 graduates with her 10,000 efforts to amend the agreed that women should United States Constitution A few years later, Ben wrote have the vote. She became and only 17 successful to a friend in Paris, “The an important fi gure in the amendments beyond that Constitution is now well- National Woman’s Suffrage initial 10? established and seems to give Association. She attended an appearance of permanence. the last convention at which But she succeeded. A Sena- But in this life, it can be said Susan B. Anthony spoke. tor would later say of Maud that nothing is certain except She emerged into a period Wood Park, “She gave lobby- death and taxes.” of enormous constitutional ing a good name.”. . . When change or enormous period the National Woman’s Suf- And so, ladies and gentlemen of amendment activity. frage Association achieved -- and this is an audience to victory in 1920, she went on which I do not need to make From 1870 to 1913, there had to form the League of Women this fi nal urging: be vigilant. not been an Amendment, and Voters, a new way to educate then in short order, we saw women into their new role in the income tax amendment . . American society. And it was . . We saw the direct election all done through her work of senators amendment, and with the mechanism that the we saw the enactment of Constitution had left for her.

52  THE BULLETIN bon mot HUMOR OF WILLIAM MARTIN

One more little story about the American Revolution: the commandant of the British troops who were occupying the City of Boston of course had to report back to King George, and in one of his reports, he was asked about the revolutionary fervor in New England. And he said “If I could just get rid of all of the lawyers in Boston, this revolution would die.”

* * * * * * * * * * *

I graduated from Harvard, and I said to my father, “Dad, I want to go to fi lm school.” And he said, “Film school? I’d really rather see you go to law school. But if you don’t do what you want to do when you’re young, you’ll spend the rest of your life looking over your shoulder. So I went to fi lm school.”

Some 30 years later, my second son graduated from Harvard and said, “Dad, I want to go to fi lm school.” And I said, “Film school? I’d really rather see you go to law school, but as your grandfather said to me . . . .”

He’s now working in Hollywood.

* * * * * * * * * * *

I write novels. Or, as one of my kids once said when he was six or seven years old─they were all talking about what their fathers did─ and he said, “Well, my dad goes up into a room every day and makes stuff up.” And so I have been doing that, and believe me, it beats real work.

* * * * * * * * * * *

They said to me, Bill, we have the title, and we have the tagline . . . .[for the only movie script that Martin wrote, Humanoids from the Deep. . . .] And the tagline, forgive me, ladies, was, “They’re not human, but they hunt human women, not for killing─for mating.” So, now you know why my wife was embarrassed to stand up and take a bow.

* * * * * * * * * * *

[From a conference with his literary agent] “Bill, you’ve got to do this book. You’ve got to do this book. This could be like, this could be like, like The DaVinci Code.

Every day since that book was published, there has been, somewhere in New York, an agent sitting with a writer, leaning across the table, and saying, “It could be like The DaVinci Code.”

bon motL THE BULLETIN 53 SHANOR RECOGNIZED FOR COLLEGE FOUNDATION LEADERSHIP

At the Annual Meeting in Boston, Stuart D. Shanor of Roswell, New Mexico, retiring President of the Foundation of the American College of Trial Lawyers, was recognized for his leadership of the Foundation. President of the College in 2001-2002, after his term on the College’s Executive Committee was over, Shanor had become a Trustee and then President of the Foundation.

In recognizing Shanor’s contribution, College President John J. (Jack) Dalton said:

“As the 501(c)(3) nonprofi t arm of the College, the Foundation is funded by your voluntary contributions, memorial gifts and bequests. The Foundation awards grants to assist worthy groups making contributions to the legal community. A few of the past recipients have Stuart D. Shanor been the National Criminal Defense College, the National College of District Attorneys and awards to law students in debate competitions and essay contests in both the United States and in Canada. The signifi cant grant of funds in the Emil Gumpert Award comes from our Foundation.”

“Stu Shanor fi rst served as a member of the Board of the Foundation for two years, and then for four years as its President, increasing and monitoring both contributions and gifts with patience and precision. His professionalism and devotion to the ideals of College have been boundless. This commitment to those of us lucky enough to know him and work with him has been appreciated by all.”

“I am proud to recognize Stu Shanor for his many contributions to the College.”

54  THE BULLETIN COLLEGE MANUALS: “MUST” READING FOR ALL FELLOWS

Th e College functions principally through its tained in Appendix C to the Manual for General committees. Both the Manual for General Com- Committees and Chairs. mittees and Chairs and the Manual for State and Province Committees and Chairs are posted in Th ese oversights have in turn led to frustration the Publications section of the College website. on the part of those who have invested time and energy in such projects. On occasion, a lack of In the wake of the recent chairs workshops, at general familiarity with previous College publi- which it became apparent that these manuals are cations listed on the website has led to consider- not being fully utilized or in some instances are ation, discussion and debate on issues dealt with being ignored, it came to light that these manuals in the past on which the College had already are listed on the website under titles that errone- taken a position. ously imply that they are intended for committee chairs only. On the contrary, they are intended to At the state and province level, the Manual for guide every member of a College committee. State and Province Committees and Chairs, a It is important that every member of a commit- substantial part of which describes the process tee, and not just the chair, becomes familiar with by which potential new Fellows are identifi ed the contents of the relevant manual. and processed, should be required reading for all Fellows. Th e College’s continued viability as the Th e website listings are being revised to refl ect leading organization for trial lawyers is dimin- that they are indeed intended to be read and fol- ished when lawyers who should be considered lowed by all committee members, and not just for membership are overlooked because of a lack the chairs. of general understanding of the qualifi cations for fellowship and the process by which they are In the past, lack of familiarity with these manu- identifi ed and evaluated. als has in some instances led general committees or subcommittees to undertake projects that have Every Fellow is encouraged to log onto the College not been approved in advance by the Board of Re- website, entering his or her name and password, gents or the Executive Committee. Th is approval so as to gain access to these internal publications, process is necessary to assure that a proposed proj- which are located in the “members only” section ect is an appropriate one for the College and is of the website, and to take the time to become not redundant of past or ongoing work of another familiar with the contents of these manuals. committee. Some projects have been unnecessarily delayed by the drafting of a proposed publication that did not follow the publication guidelines con-

THE BULLETIN 55 JOAN LUKEY INSTALLED AS FIFTY-NINTH PRESIDENT

FIRST FEMALE PRESIDENT

In accepting the maul that is the symbol of the presidency of the College, Joan A. Lukey of Boston, the College’s fi rst female president, placed the College’s recent history in a larger historical context.

Joan A. Lukey President Lukey pointed out that there was “a trial less than a mile from and here in 1768 that involved the young John Adams in his early years as a John J. (Jack) Dalton trial lawyer. I am not speaking of the Boston Massacre trial . . . . This was Photograph by a case of much less note in terms of the substance of what was involved, George Panagakos but you will understand in a moment why it was so important. In 1768, John Hancock was prosecuted by the Crown for allegedly smuggling 300 barrels of wine into the port on his sloop, the Liberty, and he smuggled it in order to avoid paying the customs taxes on it. . . .

56  THE BULLETIN “Now Adams was hired by Lukey then went on to point vulnerable detainees at Hancock to represent him in out the respects in which Guantánamo Bay. They have that, and the outcome isn’t the College, either acting done it with skill, they have very important. It was sort collectively or through its done it without compensation, of a compromise outcome. Fellows acting individually, and they have done it because What was important was the has played a key role in it was the right thing to do.” nature of the court in front furthering the administration of which the young Adams of justice over the last fi fty- Lukey enumerated some of was required to defend his nine years. First, she reminded the more recent signifi cant ac- friend. It was called the the Fellows that when the complishments of the College, Vice-Admiralty Court. The Supreme Court decided to including the publication of judges’ compensation was end racial segregation and an updated aspirational code a contingent fee based on Alabama Governor George of pretrial and trial conduct, the amount of the tax they Wallace announced his with a glowing preface by imposed on the litigants in intention to defy that, “[I]t Chief Justice John Roberts, the front of them. . . . was Fellows of this College publication of a new work, The who called him out on that Anatomy of a Patent Case, and “John Adams was so appalled and ultimately forced the the approval by the Board of by the notion that a court could Governor to comply with that Regents of Model Rules, pre- be one whose compensation . . . Supreme Court decision.” pared by the College’s Task was determined by whether, Force on Discovery and Civil and to what extent, it “Secondly,” she continued, Justice, “an attempt to make imposed penalties on the “when we in our generation suggestions to the state and litigants being prosecuted had our own version of the federal judiciary as to ways in that he became passionately Teapot Dome Scandal— I am which we might stem the tide committed to the concept of referring, of course, to the of the vanishing jury trial.” an independent judiciary. Watergate years— it was both That passion appeared in the a Fellow of the College who “As we heard from our Massachusetts Constitution, defended President Nixon, my wonderful responder tonight,” for which he was the principal former partner, now deceased she observed, “the jury trial is drafter, and as you heard from Jim St. Clair, and it was a Fellow the core of what we do. If we Chief Justice Marshall, that of the College, Leon Jaworski, don’t save it, nobody will.” Constitution was the principal who prosecuted that matter in basis of the United States perhaps the greatest political Quoting Associate Justice Constitution, under which scandal of our generation.” Sandra Day O’Connor about we still live today. Now, two the burden of being the fi rst and a half centuries later after “And fi nally,” she concluded, at anything, Lukey thanked the trial of John Hancock, “and I think maybe of most all of those who have stepped we have obviously come a import to the crowd that forward to assure her of their very long way in terms of the sits here today, many, many support in making her year independence of the judiciary Fellows of this College have at the helm of the College a and the administration of defended the Great Writ, success. justice generally.” the writ of habeas corpus, by defending disenfranchised,

THE BULLETIN 57 bon mot This week you have seen and heard a lot about the historic city of Boston and Commonwealth of Massachusetts. I just wanted to quickly be sure that you were aware of some of the laws and statutes of this jurisdiction that can’t be found, as far as I know, anywhere else in the country, or probably the world. For example, it is of historic signifi cance that you can duel to the death on Boston Common on Sunday, but only if the Governor is present. . . [Y]ou cannot be either a Quaker or a witch in Massachusetts, but equally important, you may not add─I’m not kidding─you may not add tomatoes to your clam chowder, which would make it too close to Manhattan chowder. And my personal favorite─this is an existing law─it is illegal to keep a mule on the second fl oor of a house unless you have two exits.

Joan A. Lukey, in her acceptance speech

PATENT CASE MANUAL IS NOW AVAILABLE

In response to the recent increase in patent the same page in the handling of a patent litigation, the College’s Complex Litigation case, starting with a proper read of the patent Committee has produced a concise manual to through the appeal and possible remand.” detail each phase of a patent case for judges and lawyers. Hon. Paul R. Michel, Chief Judge of U.S. Courts of Appeals for the Federal Circuit, Titled Anatomy of a Patent Case, the manual added, “In this unique manual, a group of vet- is available for $155 through the College’s eran patent litigators and a Judicial Board of Web site, actl.com. Review of appellate and district court judges combined their talents to guide trial judges A Judicial Board of Advisors from the U.S. and practitioners through the web of com- Courts of Appeals for the Federal Circuit, the plex problems arising in patent infringement Third Circuit and District Courts reviewed the actions as they proceed from fi ling to trial written manuscript to provide commentary judgment. Perfectly meshing legal theory with and the benefi t of their expertise. trial practice, this manual will serve advocates “District judges confronting a patent case and and adjudicators equally well.” the lawyers litigating the case owe a debt of Fellow George F. Pappas is chair of the gratitude to the (College’s) Complex Litiga- Complex Litigation Committee. tion Committee . . .” commented Hon. Avern Cohn, Senior District Court Judge for the Eastern District of Michigan. “It is a practi- cal guide which puts judges and lawyers on

58  THE BULLETIN FOUR NEW REGENTS

Bartholomew J. Dalton, Dalton & Associates, PA, Wilmington, Delaware, is a 1974 graduate of St. Joseph’s College in Philadelphia and received his law degree in 1977 from the University of Tulsa College of Law. A Fellow since 2004, he was Delaware State Chair in 2005-2007 and is a past presi- dent of the Delaware Trial Lawyers Association. He becomes Regent for Delaware, New Jersey and Pennsylvania.

John M. Famularo, Stites & Harbison PLLC, Lexington, Kentucky, is the new Regent for Kentucky, Michigan, Ohio and Tennessee. A 1992 inductee, he is a 1968 graduate of Loyola University and received his J.D. in 1971 from the University of Kentucky. A former Kentucky assistant attorney gen- eral, he also has served as assistant commonwealth attorney, and as chief district court judge.

Samuel H. Franklin, of Birmingham, Alabama takes over as Regent for Alabama, Florida and Georgia. A founding partner of Lightfoot, Franklin & White, LLC, he graduated with high honors in 1969 from Auburn Univer- sity and received his law degree in 1972 from the University of Alabama School of Law. He then received his LL.M. degree in 1973 from Harvard University. A Fellow since 1992, he was Alabama State Chair in 2006-2008 and is a past president of the Alabama Defense Lawyers Association and the Alabama Law Foundation.

Michael W. Smith, Christian & Barton LLP, Richmond, Virginia, a Fellow since 1989, is the new Regent for North Carolina, South Carolina, Virginia and West Virginia. A 1966 graduate of Presbyterian College in Clinton, South Carolina, he received his law degree in 1969 from the University of South Carolina. A past president of the Richmond Bar Association, he also served as clerk for U.S. District Court Judge Robert R. Merhige.

THE BULLETIN 59 LIEUTENANT GOVERNOR WELCOMES COLLEGE TO BOSTON

The Honorable Timothy P. Murray, Lieutenant Governor of the Commonwealth of Massachusetts and former three-term mayor of that state’s second largest city, Worcester, welcomed the College to Boston, reminding the Fellows of that city’s place in American history. His remarks follow:

On behalf of the people of Massachusetts, it is my pleasure to welcome the American College of Trial Lawyers here to Boston and to the Commonwealth, the birthplace of our American freedom . . . . And we are certainly proud that one of our own, Joan Lukey, is stepping up to lead this fi ne organization shortly. We wish you, Joan, great success in your presidency. . . .

Of course I may be biased, but I can’t think of a better place for you to host this event because of your mission and because of the history of our American judicial system. It traces its roots right back to the city.

So let me welcome you to Massachusetts by relating two brief stories from our Commonwealth’s legal history. Th e fi rst story may be familiar, and the second may not. First, the rule of law, equal rights for all, the ability to resolve disputes peaceably, these are the workings of our judicial system. Th ey’re what separate our society from the tyrannies Timothy P. Murray of this world, and they were framed for America right here by the Massachusetts Constitution, ratifi ed on June 16, 1780, and which served as the template for the United States Constitution.

John Adams, the principal author of our state constitution, included within it a Declaration of Rights, which is the

60  THE BULLETIN template of the US Bill of Rights. 1763, his widow married Nathaniel of government, by which the Th e fundamental contract in that Jennison, and Quock Walker people of this Commonwealth declaration, as Adams wrote, is became the property of Jennison. have solemnly bound themselves, that Massachusetts must “have a declare that all men are born free government of laws, not of men.” Some eighteen years later when and equal, and that every subject Adams believed that liberty rests Walker was twenty-eight years old, is entitled to liberty and to have it on a judicial system that protects he ran away from the Jennison guarded by the laws, as well as his the rights of all people, and that a farm to assert his freedom. Walker life and property. In short, slavery proper defense for anyone accused said that his original master, the is, in my judgment, as eff ectively is a critical element of its system. elder Caldwell, had promised him abolished as it can be.” Th e jury Without a proper defense, all of freedom by the age of twenty-fi ve. convicted Jennison, fi ned him 40 our freedoms are in jeopardy. Walker fl ed to the old Caldwell shillings, and set Walker free. Th is homestead, where his former case ended slavery in Massachusetts Adams not only believed in it master’s sons gave him shelter and and stoked the passions of abolition in theory, he also lived it. As a supported his claim for freedom. elsewhere. lawyer in Boston in the midst of a Jennison, however, recaptured revolution, John Adams stood up Walker, hauled him back to his It would take another generation and defended the British soldiers own farm, beat him severely for his in the searing heat of the Civil accused in the Boston Massacre, attempted fl ight to freedom. War to fi nally consume the awful and he won acquittal for all but two institution of slavery throughout of them, because in fact they were When word spread of the incident the United States, but ideal of true acting in self-defense. John Adams, and the assault, two of Worcester’s freedom for all people in this country an ardent patriot, who worked leading attorneys, Caleb Strong began here in Massachusetts. It to throw off the yoke of colonial and Levi Lincoln, Sr., took up the echoed with the shot heard ‘round oppression, took that case because case in Walker’s defense. Not only the world. It followed through the he knew that the rule of law and the did Levi Lincoln and many of his quill pen Adams used to draft our integrity of our justice system were contemporaries believe slavery Constitution. It leapt to life on the more important to establishing a was morally wrong, they believed fl oor of the Supreme Judicial Court free society than the passions of the it violated the newly ratifi ed as Levi Lincoln, Sr. argued his case, day. He called it one of the most Massachusetts Constitution. A and it was codifi ed for the nation important contributions he made series of civil and criminal cases by Levi Lincoln’s descendant, in public service . . . . ensued, and eventually Quock Abraham Lincoln, with his Walker’s case made it to the Emancipation Proclamation. Now, a bit of Massachusetts history Massachusetts Supreme Judicial you may not know. Levi Lincoln, Court. At that trial, Levi Lincoln, So as you see, the planners of this Sr. was a lieutenant governor and Sr. took the lead and based conference had great historical a governor of Massachusetts, and his argument on the freedoms wisdom to bring you here, to the he served as US Attorney General John Adams wrote in our state very place where our judicial system for Th omas Jeff erson. Before all of Constitution. was built and where the legacies that, Levi was a lawyer in Worcester, of Lincoln and Adams continue Massachusetts. And in 1781, Given the rules of the day, the case to inspire us all to do our part for he took a case of a runaway slave was tried before a Worcester County freedom, justice and equal rights named Quock Walker. Walker jury, sitting with the Supreme for all Americans. was an African sold into slavery as Judicial Court. In his charge to that an infant in 1754, along with his jury, Chief Justice William Cushing parents, to a farmer named James said the following, and I quote, Caldwell. After Caldwell’s death in “Th e framers of our constitution

THE BULLETIN 61 IN MEMORIAM

In this issue we note the passing of 37 Fellows, the oldest at 96, the youngest at 48. Twenty- six of these had some sort of military service, 20 of them in World War II, 5 of whom also served in the Korean Confl ict, 4 who served solely in the Korean Confl ict and two with peacetime service. They include: a World War II veteran who, part of the prosecution team at Nuremberg, interviewed Hermann Goering, head of the Luftwaffe and organizer of the Gestapo; one who served in General George Patton’s army and later led a M.A.S.H. unit in Korea; one who participated in two of the bloodiest battles in Marine Corps history, witnessed the raising of the fl ag on Mount Suribachi during the battle for Iwo Jima, then fought in the Battle of Chosin River; one who at his retirement as a Major General was the highest ranking member of the Marine Corps Reserve, and one who fl ew a weather reconnaissance mission westward from Guam on the eve of the bombing of Hiroshima. They include civil rights activists: one who participated in Martin Luther King’s march from Selma to Montgomery; one whose experience as an African- American soldier stationed in the South led him to participate in civil rights cases, and ultimately to become a criminal lawyer whose clients had included Reuben “Hurricane” Carter and a number of black radicals such as H. Rap Brown in the turmoil of the sixties; one who was a national fi gure in the legal services movement; one who represented the Diocese of Washington, defending against a suit challenging the permit that allowed Pope John Paul II to celebrate Mass on the National Mall, and one who, as a retiree in his late seventies working through an Innocence Project, achieved the release on DNA evidence of a defendant wrongly imprisoned for life. They include athletes: one who won his state’s open men’s doubles tennis championship four times, playing each time with a different partner; one who was captain and most valuable player on his college lacrosse team, and one who, as a catcher playing AAA ball, regularly caught for major league pitcher-to-be Vic Raschi. They include outdoorsmen and adventurers: one who fi rst went skydiving at age 69 and who, two months before his death of cancer, rode the world’s longest alpine zip line; one who was instrumental in the creation of Biscayne National Park, and chose to have his ashes scattered over the waters of Everglades National Park; one who organized a legendary Sea Scouts group, and one who in retirement became an avid sailor who chose to be buried at sea. One was a high school graduate at 15; one was a former Regent of the College who had mentored four young lawyers who became judges; one was the husband of a sitting state Secretary of State and one the father-in-law of a sitting United States Senator. Perhaps most remarkably, many of those who knew them did not know their histories while they were alive.

Note: The numbers in parentheses note the year of the Fellow’s induction into the College.

62  THE BULLETIN Roger W. Barrett (63), a Fellow Emeritus, of Contemporary Art in Chicago. A widower, from Winnetka, Illinois, retired from Mayer his survivors include two daughters. Brown, died January 5, 2010 at age 94. The son of a lawyer and a graduate of Princeton and of Robert J. Beckham (82), Jacksonville, Florida, the Northwestern University School of Law, he a Fellow Emeritus and a member of Holland had practiced law briefl y before joining the US & Knight, LLP, died September 14, 2009 at Army in World War II. After the war, he was age 79 of heart-related problems. A native of assigned as a JAG offi cer to the prosecution Miami and a personal injury and professional team for the Nuremberg war crimes trials and malpractice lawyer, he was a graduate of Emory given the task of assembling the prosecution’s University and of the University of Florida evidence against the Nazi defendants. In the College of Law, where he was editor-in-chief of process, he went over some of the evidence his law review and a member of the Order of the with former Luftwaffe commander Hermann Coif. In his late seventies, working pro bono Goering, founder of the Gestapo and one-time through the Innocence Project, he had, using heir apparent to Adolph Hitler, and sat at the DNA evidence, helped to secure the release of a table with Supreme Court Associate Justice prisoner serving a life sentence for murder. He Robert Jackson, the chief prosecutor, during the had been retained by the Governor of Florida trials. After the war, he and Justice Jackson’s to handle major matters involving mining son had co-authored the offi cial eight-volume and mineral rights in Florida waters, had both work on the evidence at Nuremberg. His career represented appellate judges before the Judicial included many high-profi le trials, including Qualifi cations Commission and served as chair representing the executor of an heir to the King of the Judicial Nominating Commission for the Ranch in a breach of trust case and defending Florida Supreme Court. His survivors include ADT in a suit brought by Brinks in the wake of his wife and three sons. the famous Brinks Boston burglary. Following in the footsteps of his father, who collected Raymond A. Brown (68), Newark, New Jersey, Lincoln memorabilia and whose collection Brown & Brown PC, died October 9, 2009 was a major resource for Carl Sandburg’s six- at age 94 of chronic obstructive pulmonary volume biography of Lincoln, Barrett collected disease. Born in Florida, the son of a railroad both historical documents and modern art. He mechanic, he was a graduate of Florida A&M had been senior vice-president of the Museum L

THE BULLETIN 63 University and, paying his way by working as a Fellow at the next national meeting of as a longshoreman, attended and graduated the College, then President John J. (Jack) from Fordham Law School. Motivated by Dalton, with the concurrence of the Board his experiences as an African-American of Regents, had inducted her in a special soldier assigned to Army bases in the South ceremony in Macon on April 7, 2009. Of in World War II, he developed his reputation Jamaican and African heritage, she was born in southern civil rights cases in the sixties. in England and came to the United States His practice ranged from civil rights cases to with her parents when she was ten years old. defending in criminal cases a mayor prosecuted She was a graduate of Eckerd College and of in the Abscam bribery case, boxer Reuben Mercer University Law School. A colorful “Hurricane” Carter in his original murder trial, criminal defense attorney and a charismatic an alleged Soviet spy, a New Jersey doctor fi gure who wore Mohawk dreadlocks, she had accused of murdering patients with an overdose defended the accused in numerous high-profi le of muscle relaxant, and a number of black criminal cases. She had been a Court TV radicals, including LeRoi Jones, members commentator and was a frequent continuing of the Black Liberation Army and the Black education lecturer. She had served as chair Panthers and H. Rap Brown. He had been of the State Bar Disciplinary Panel Review president of the New Jersey NAACP for twelve Commission, as a special prosecutor for the years. During the Newark riots in 1967, he was Judicial Qualifi cations Commission and as serving as a member of the National Guard, vice president of the Georgia Association of walked the streets to quiet the disturbances. Criminal Defense Lawyers. She had also He was later appointed vice-chair of the served as General Counsel for the Greater commission that investigated the incident. A Macon Chamber of Commerce and had been widower who had remarried, his survivors a part-time Municipal Court judge. A lover of include his second wife, two children and two reggae music, she had frequently served as a step-children. DJ for weekend parties, weddings and other occasions. Her survivors include her parents, Althea Lorraine Buafo (09), Macon, Georgia, three children and a life partner. died October 20, 2009 of cancer of the brain at age 48. Fearing that she might succumb Hon. Robert E. Cahill, Sr. (78), a Judicial to the disease before she could be inducted Fellow, retired from the Baltimore (Maryland)

64  THE BULLETIN County Circuit Court, died December 14, 2009 as a ball turret gunner in the 8th Air Force in of gallbladder cancer at age 77. The son of a World War II. A graduate of Seton Hall and tavern owner who had not fi nished grammar of Rutgers Law School, he had been for ten school, he was a graduate of the College of years a trial attorney for the Motor Club of the Holy Cross and of Georgetown University America. He had been president of his county Law School. After serving as an Assistant Bar, a trustee of the New Jersey State Bar United States Attorney and as a senior trial and President of the Trial Attorneys of New attorney in the tax division of the United Jersey. His survivors include his wife of sixty States Department of Justice under Attorney years, who died seven weeks after his death, a General Robert F. Kennedy, he engaged in daughter and two sons. private practice until his 1990 appointment to the bench. A member of the Board of the Edward L. (Ned) Clark, Jr. (81), a Fellow Pawtuxet Institution, he had been president of Emeritus, retired from Clark, Marsh, Lindauer the Baltimore City Bar Association and had and McClinton, Salem, Oregon , died October chaired its ethics committee. He had served 30, 2009 at age 86 of Alzheimer’s and two terms on the Board of Governors of the Parkinson’s diseases. The son of a college Maryland State Bar Association and was a president, he was a Phi Beta Kappa graduate of long-time member of its character committee, Occidental College in Los Angeles. A Marine which screens applicants to the Bar. He had Corps veteran of World War II, he graduated chaired the College’s Attorney-Client Relations from the University of Oregon Law School and Committee. Proud of his Irish heritage, he was was called back into service as a JAG offi cer a member of the Friendly Sons of St. Patrick during the Korean Confl ict. He had served and of the Ancient Order of Hibernians. His as President of the Oregon State Bar and in survivors include his wife, four sons and a 1995 had received that organization’s Award daughter. His brother, William W. Cahill, Jr., of Merit. In 2002 he had been named Trial also a Fellow, predeceased him. Lawyer of the Year by the American Board of Trial Advocates and in 2006 received his local Andrew V. Clark (70), a Fellow Emeritus, Bar’s Professionalism Award. He had also retired to Delray Beach, Florida from Seaman served in or as counsel to various governmental & Clark, Perth Amboy, New Jersey died organizations. He had served on the board of February 13, 2009 at age 84. He had served the Methodist Home in Salem and in retirement L

THE BULLETIN 65 was involved in a food bank at his church. His Corlett Killian, Coral Gables, died November survivors include his wife and fi ve sons. 23, 2009 at age 85 of cancer and heart disease. A World War II veteran, he was a graduate John T. Conners, Jr. (81), a Fellow Emeritus of the University of Florida and of its School from Nashville, Tennessee, retired from Boult, of Law. A civil defense lawyer, he had been Cummings, Conners & Berry, died September President of the Federation of Insurance 8, 2009 at age 89. A graduate of Vanderbilt Counsel, of the Florida Defense Lawyers’ and of its School of Law, he had begun his Association and of the Southeast Defense Bar career defending civil cases, but switched to Association and had been a member of the representing plaintiffs in 1980. He had served Board of the Defense Research Institute. He on the Boards of Saint Thomas Hospital and had served on a Federal Judicial Nominating the Middle Tennessee Medical Center. His Commission in the Reagan Administration survivors include nine children. and on an advisory panel to the Department of the Interior in the George H. W. Bush Earle C. Cooley (83), Boston, Massachusetts, Administration. An avid outdoorsman and a founding partner of Cooley Manion & Jones, fi sherman, he was one of the leaders in LLP, died October 16, 2009 at age 77. A the creation of Biscayne National Park. A graduate of the University of Connecticut and master Angler, he was past President of the of the Boston University School of Law, where Metropolitan Fishing Tournament. He was he was editor-in-chief of his law review, the Chairman of the Board of Trustees of the faculty had selected him as the outstanding International Oceanographic Foundation. member of his graduating class. He had His ashes were spread over the waters of been president of his law school’s alumni Everglades National Park. His survivors association, a trustee and then Chair of the include his wife, a son and a daughter. Board of Trustees of Boston University. Once divorced, his survivors include his second wife, C. Harris Dittmar (69), a Fellow Emeritus four daughters, two sons, two step-sons and and former Regent from Jacksonville, Florida, two step-daughters. retired from Bedell, Dittmar, Devault, Pillans & Coxe, the fi rm in which he practiced for Edward S. Corlett, III (82), a Fellow his entire career, died September 13, 2009 of Emeritus from Pinecrest, Florida, retired from complications from heart and lung problems

66  THE BULLETIN at age 83 after a lengthy illness. Entering the of Board of Regents’ lexicon. His survivors United States Army when he graduated from include his wife, a son and a daughter. high school, he served in the infantry in Europe in World War II, then entered the University of Hon. Roger J. Donahue (68), Barnstable, Florida, where he earned his undergraduate and Massachusetts, a retired Massachusetts law degrees, serving as editor-in- chief of his Superior Court Judge, died October 27, 2009 law review and graduating with high honors. after a brief illness at age 86. Originally He had served on the Board of Governors enlisting in the infantry in World War II, he of the Florida Bar and in the American Bar became an aviation cadet, then became a fl ight Association House of Delegates. He had offi cer and was ultimately the navigator of a served as chair of the College’s Admission to B-24 bomber. A post-war graduate of Harvard Fellowship Committee and of the Courageous and of the Harvard Law School, he began Advocacy Award Committee. A generalist, practice with Warner Stackpole in Boston both a civil and criminal lawyer, he had and in 1954 founded his own law fi rm. He successfully defended a sitting United States had served as Assistant Attorney General of Senator in a prolonged criminal trial and, Massachusetts. He had been President of the representing a plaintiff in a civil fraud trial, Massachusetts Junior Bar Association and a recovered what was for that time a huge member of the Executive Council of the Boston verdict. He was the mentor to at least four Bar Association. He had taught as an adjunct lawyers who became judges. As a member of professor at several Boston area law schools. the College’s Board of Regents representing Appointed to the bench in 1973, he had chaired Florida, Georgia and Alabama, his wit was numerous committees within the court’s legendary. Once a past president somewhat structure. His survivors include his wife and grumpily interrupted his presentation of a two sons. controversial nominee by asking, “What is the Regent’s recommendation?” Dittmar laughed R. Nicholas Gimbel (07), Philadelphia, and replied, “I need to fi nish hearing the rest Pennsylvania, McCarter & English LLP, died of what I have to say before I decide.” His November 19 of amyotrophic lateral sclerosis description of one nominee as a “prismatic (ALS) at age 58. A magna cum laude graduate SOB: no matter how you hold him up to the of Yale, he received his law degree from the light, he is an SOB” thereafter became a part University of Chicago, where he was Comment L

THE BULLETIN 67 Editor of the law review. Early in his career he Sicily, seeing action at the victory at Ortona, had been an Assistant United States Attorney, and participating in the fi nal push through had served in the Offi ce of the General Counsel Holland. He led the litigation department of of the Securities and Exchange Commission Brown Montgomery (now Olgivy Renault and had been a partner in two other fi rms LLP) for many years. A widower who before joining McCarter & English in 2002. remarried, his survivors include his wife, a In one high profi le case, he had recovered a daughter, a son and four step-children jury verdict in excess of $100 million. He had served as editor of Litigation, the publication Charles Tilden Hagan (73), a Fellow of the American Bar Association Litigation Emeritus from Greensboro, North Carolina, Section. His survivors include his wife and retired from Adams, Kleemeier, Hagan, two daughters. Hannah & Fouts, died October 16, 2009 at age 96. Educated at the University of North Jack R. Givens (89), Tulsa, Oklahoma, Givens Carolina and the University of Virginia School & Givens, PLLC, died August 31, 2009 at age of Law, in the thirties he had joined the United 80. A graduate of Oklahoma State University States Marine Corps Reserve, participating and of the University of Oklahoma Law in its fi rst platoon leader’s class. Called to School, where he fi nished second in his class, active duty in February 1941, he fi rst served he was a veteran of the Korean Confl ict. He in Brazil. After the attack on Pearl Harbor, was a past president of his local bar and a past he joined the 4th Marine Division, serving in Vice-President of the Oklahoma State Bar and Saipan, Roi-Namur, Tinian and Iwo Jima. He was a co-founder of the American Inn of Court received a Bronze Star with Combat V for in Tulsa. His survivors include his wife, a heroic achievement on Tinian, a Letter of daughter and a son. Commendation, a Presidential Unit Citation and numerous campaign ribbons. Following William A. Grant, Q.C. (81), a Fellow the war, he remained in the Marine Corps Emeritus from Knowlton, Quebec, died Reserve and, as a member of the Reserve November 9, 2009 at age 88. Educated at Forces Policy Board, served in Vietnam during Ashbury College and McGill University, he the Vietnam War. When, as a Major General, served as an offi cer with the Canadian 1st he retired from the Marine Reserves in 1973, Infantry Division, in World War II, landing in he was the highest ranking USMC Reserve

68  THE BULLETIN offi cer in the country. He began practice as founding member of the Caverna Memorial a local prosecutor and was later called on Hospital and the Horse Cave Theater and had by the state’s Attorney General to prosecute served on numerous boards, including that of high-profi le white-collar crimes. An Elder Commonwealth Health Foundation and P.B.I. in his church, he had served as President of Bank. His survivors include his wife, three both the Greensboro Bar Association and the daughters and a step-daughter. Greensboro Chamber of Commerce and for many years was Chairman of the Greensboro Henry A. Hentemann (95), Davis & Young Coliseum Commission, which created the Co. LPA, Cleveland, Ohio, died October 19, Greensboro War Memorial Coliseum. Pursuing 2009 at age 74 after an extended illness. A his love of sailing, in his middle twenties graduate of Cleveland State University and he organized a Sea Scout Ship, the Davey of the Cleveland-Marshall School of Law, he Jones, which was the National Flagship of Sea had served as president of the International Scouting for three consecutive years. A mentor Association of Defense Counsel. He was the to many young lawyers, his irrepressible sense author of the Hentemann Handbook for Trial of humor and his personal modesty despite his Attorneys, an annually updated publication resume made him a role model. A widower on Ohio insurance law. Before his death, who was also predeceased by one son, his he had been selected to receive the Ohio survivors include fi ve children. His daughter- Association of Civil Trial Attorneys’ award for in-law, Kay R. Hagan, is a member of the Distinguished Contributions to the Profession, United States Senate. and the award was given posthumously at that organization’s annual meeting. His survivors Robert B. Hensley (82), Hensley & Ross, include his wife, a daughter and three sons. Horse Cave, Kentucky, died November 11, 2009 in Casablanca, Morocco at age 76. A Frank M. Hockensmith (65), a Fellow graduate of Western Kentucky University Emeritus from Grand Junction, Colorado, long and of the University of Kentucky Law retired from Younge & Hockensmith has died. School, he had served in the United States We have been informed that he probably died Army. A former county attorney, he had in 2002. Born in 1919, he was a graduate of served as a Special Justice on the Kentucky the University of Colorado and of its School of Supreme Court. A civic activist, he was a Law and had been President of his county Bar. L

THE BULLETIN 69 Daniel S. Hoffman (72), Denver, Colorado, William Henry Holdford (92), Narron Of Counsel to Hogan & Hartson, died August & Holdford, Wilson, North Carolina, died 8, 2009 at age 78 of a stroke. Graduating from November 28, 2009 at age 77 of cancer. A high school at age 15, he entered the University graduate of the University of North Carolina of Colorado at age 16. After graduating from and of its School of Law, he had once been the University of Denver School of Law, he the subject of an article in True Detective was fi rst employed as safety manager in the when he defended a fi rst degree murder case local government in Denver, charged with that was being prosecuted by his brother. A cleaning up a thievery ring in the Denver civil and criminal trial lawyer, he had been police department. He participated in Martin President of both his county Bar and the Luther King’s march from Selma, Alabama to North Carolina Academy of Trial Lawyers. A Montgomery, was state director for Senator founding member of Lawyers Mutual Liability Robert Kennedy’s 1968 presidential campaign Insurance Company, the fi rst state-bar- and then joined the protests later that year at the sponsored malpractice insurer, for twenty years Democratic National Convention in Chicago. he chaired its claims committee. He had served In the early 1970s he became part owner of the as Senior Warden of his Episcopal church, Denver Nuggets of the old American Basketball as a Scoutmaster and as chair of the local Association and negotiated the merger of the chapter of the American Cancer Society. He ABA with the NBA. From 1978 to 1984 he had been inducted into the North Carolina Bar was Dean of the Denver University School of Association’s General Practice Hall of Fame. Law. He once represented Michael Jackson An adventurer, he had sailed, skied, hiked and in civil litigation in the local federal court kayaked, at age sixty-nine had made his fi rst and in the course of his direct examination, skydive and two months before his death had had Jackson sing for the jury. He had served gone glacier trekking in Alaska and taken a as the College’s Colorado State Chair and ride on the world’s longest alpine zip line. A was a member of its Access to Justice and widower who had remarried, his survivors Legal Services Committee at the time of his include his wife, Elaine Marshall, the North death. His survivors include his wife and three Carolina Secretary of State, and two daughters. daughters.

70  THE BULLETIN James M. Howley (78), Scranton, grandfather, until his retirement. A civil rights Pennsylvania, founding partner of Scanlon, activist, he had been President of his local Bar Howley & Doherty, died December 3, 2009 and as Vice-President and a member of the after a long illness at age 81. A graduate of the Board of Governors on the Maryland State Bar University of Scranton and of the University Association. For years he was a member of of Pennsylvania School of Law, he had the Maryland Court of Appeals Committee on served as county prosecutor and as counsel Rules of Practice and Procedure. He had been to the Lackawanna Industrial Development President of the Washington College Alumni Authority. A past chair of the Pennsylvania Association, served on the college’s Board of Ethics Commission, he had served on a number Visitors and Governors for over thirty years, of judicial selection committees and on the and had been honored by his alma mater with Lawyers’ Advisory Committee of the Federal a number of awards. His survivors include his Middle District of Pennsylvania and the Third wife, two daughters and a son. Circuit Court of Appeals. He had served on and chaired the Board of Trustees of Marywood John Keith Madden, Jr. (82), of counsel University and had received its highest award, to Blackburn & McCune, PLLC, Nashville, the Presidential Medal. He had also served as Tennessee, died October 28, 2009 of a heart the director of the local March of Dimes and the attack at age 82. After serving in both the American Cancer Society. His survivors include United States Army and Navy at the end of his wife and a daughter. World War II, he completed his undergraduate and law degrees at Vanderbilt University. His Alexander Gray “Sandy” Jones (82), a Fellow survivors include his wife and three daughters. Emeritus from Chestertown, Maryland, died October 31, 2009 of multiple organ F. Wm. McCalpin (78), a Fellow Emeritus failure at age 82. A veteran of World War II, from St. Louis, Missouri, died December 9 at he had graduated from Washington College in age 88 of complications from a fall. Graduating Chestertown and the University of Maryland from St. Louis University, he joined the United School of Law and had studied at the University States Marines, served in the Pacifi c Theater of Sheffi eld in England on a Fulbright in World War II and, after graduating from Scholarship. He had practiced in Princess Anne Harvard Law School, was recalled to duty in with Jones & Jones, a fi rm established by his L

THE BULLETIN 71 the Korean Confl ict. Widely regarded as a Leonard Brown Melvin, Jr. (93), Melvin & hero in the Legal Services community or his Melvin, Laurel, Mississippi, died October 16, public stand when the Reagan Administration 2009 at age 84. A graduate of the University had tried to defund the Legal Services of Mississippi and of its School of Law and a Corporation, he had chaired the American Bar tank commander in General George S. Patton’s Association’s Committee on the Availability Third Army in World War II, he commanded of Legal Services, its Committee on Legal Aid a M.A.S.H. unit in the Korean Confl ict. He and Indigent Defendants and its Commission had been a county prosecuting attorney and had on Legal Problems of the Elderly. He had served as President of the Mississippi chapter also been Director of the Legal Aid Society of of the Federal Bar Association, the Mississippi St. Louis, President of the Missouri Legal Aid Bar Association, the Mississippi Association for Society and President of the National Legal Justice and the Mississippi chapter of ABOTA. Aid and Defender Association. His survivors A widower, his survivors include a son, a include his wife, two sons and three daughters. daughter.

F. Timothy McNamara (86), Hartford, The Honourable Gerald R. Morin (86), a Connecticut, F. Timothy McNamara, PC, died Judicial Fellow from Ottawa, Ontario, died December 10, 2009. Born in 1926, he had September 4, 2009 at age 72. A graduate of earned his undergraduate, masters and law the University of Ottawa Law School, fi rst in degrees from the University of Connecticut, his class, he was called to the Bar of Ontario the latter as valedictorian of his class. He had in 1965 and was appointed Queen’s Counsel served in the 11th Airborne Division in both in 1979. A partner in the Ottawa fi rm, Solway, World War II and the Korean Confl ict. He had Wright, he was appointed a judge of the Ontario served in the United States Attorney’s offi ce, Superior Court of Justice in 1991. He had in the Connecticut House of Representatives been honored with the Carlton County Law and as Executive Director of the Judicial Association Medal in 2005. He had retired in Review Council and had been town attorney May 2008. His survivors include his wife, two for East Hartford. He owned and fl ew his own daughters and two sons. plane. His survivors include his wife a son and a daughter. Ronald E. Oliveira (91), Martin & Oliveira, Pittsfi eld, Massachusetts, died December 7

72  THE BULLETIN at age 74. A graduate of the University of Texas Southern University School of Law and Massachusetts and of the Boston College served on its board for ten years, as well as School of Law, he had been President of serving as a Trustee of the Southwestern Legal his county Bar and for ten years an adjunct Foundation. A chair has been named in his professor of law at Harvard. A widower, both honor at the University of Texas. A biblical of his sons predeceased him. scholar, he taught a Sunday School class at his church and held various positions in the Joe H. Reynolds (62), Schwartz Junell Southern Baptist Convention. His survivors Greenberg & Oathout, LLP, Houston, Texas, include his wife and two sons. died December 18, 2009 at age 88 of natural causes. A graduate of Tyler Junior College, James D. Robinson (89), Chattanooga, Baylor University and Baylor Law School, Tennessee, died August 28, 2009 at age 76. A where he was fi rst in his class, he had served in graduate of the University of Tennessee and of the United States Marine Corps in World War its School of Law, he had served in the United II and in the Korean Confl ict. A veteran of two States Army before beginning the practice of of the bloodiest battles in Marine Corps history, law. At the time of his retirement, he was a on Iwo Jima, he witnessed the famous raising of senior partner in Robinson, Smith & Wells. the fl ag atop Mount Suribachi and was seriously He had served as Special Judge in the Circuit wounded. Called back to serve in the Korean Court of Hamilton County and as President of Confl ict, he landed at Inchon and fought in his local Bar. He had served as vice-president the Battle of the Chosin River, the “Frozen of the Tennessee Defense Lawyers Association. Chosin,” where he suffered severe frostbite and He had served as an adjunct professor at the other injuries. He had fi rst served in the trial University of Tennessee at Chattanooga and division of the Texas Attorney General’s offi ce. was a charter member of his local Legal Aid He was recently named a “Texas Legal Legend” Society. A college tennis player, he had won by the State Bar of Texas. He had opposed the the Tennessee State Men’s Open Doubles late Thurgood Marshall in a landmark case. Championship four times with four different He had served for sixteen years as a Regent at partners. He had run the USLTA Boys’ 14 and Texas A&M University, whose medical school under National Tennis Tournament and various is housed in the Joe H. Reynolds Building. other amateur tennis tournaments in Tennessee. He also organized the Board of Visitors of He had served on the Board of the SENTENGA L

THE BULLETIN 73 Chapter of the Multiple Sclerosis Foundation. 1960 and then helped coordinate his campaign In retirement, in remembrance of his late wife’s in New Jersey, managed the Borough of Queens public school teaching career, he had worked as in Robert Kennedy’s 1964 senatorial campaign a volunteer reading tutor for students at a local and participated in his presidential campaign elementary school. He is survived by a son. and in the campaigns of Senator Edward Kennedy. He initiated drug education programs Matthew J. Ryan, Jr. (79), a Fellow Emeritus in public schools, introduced both witness from Springfi eld, Massachusetts, retired from protection and victim compensation programs Doherty, Wallace, Pillsbury & Murphy, PC, died as a District Attorney and was instrumental August 22, 2009 at age 91. A graduate of the in establishing a national witness advocate University of Massachusetts, he quarterbacked program. His survivors include his wife, three the football team and was the starting catcher sons and two daughters. on the baseball team. Playing Triple A baseball, he frequently caught for major league pitcher- Warren S. (Turk) Stafford (90), Taylor, to-be, Vic Raschi, the “Springfi eld Rifl e.” A Stafford, Clithero, FitzGerald & Harris, LLP, graduate of the Georgetown University School Springfi eld, Missouri, died October 26, 2009 of Law, he served in World War II as navigator at age 81. A graduate of Southwest Missouri on a modifi ed B-24 in the 55th Weather State University and of the University of Reconnaissance Squadron, stationed on Guam. Missouri School of Law, he served in the He fl ew a reconnaissance mission just prior to United States Navy in World War II and in the bombing of Hiroshima. He was the catcher the Korean Confl ict. He had been president on the Marianas Island All-Star baseball club of his local bar, which had honored him with that won the Army Olympics Mid-Pacifi c its Distinguished Attorney Award in 2004. A Championship and played on the basketball daughter survives. team that won the island championship on Guam. For thirty-two years he was a prosecutor James K. Thomas (72), a Fellow Emeritus at the city and district court level, trying over from Ft. Myers, Florida, died September 11, twenty-fi ve murder cases. A political activist, 2009 at age 87. An offi cer in Battery B, 557th he was a delegate to three Democratic National Anti-Aircraft Artillery Automatic Weapons Conventions, was a part of the team that Battalion in World War II, he saw action in engineered John F. Kennedy’s nomination in Northern France, the Ardennes, Rhineland

74  THE BULLETIN and Central Europe. He graduated from a graduate of the University of Michigan Law the Pittsburgh Law School and practiced in School and a veteran of World War II. Harrisburg. He had been President of his County Bar and of the Cumberland County Stephen Asbury Trimble (77), a Fellow School Board. In his retirement he became an Emeritus from Washington, District of avid sailor and was Commodore of the Royal Columbia, retired from Hamilton and Hamilton, Palm Yacht Club. His life was celebrated by died August 5, 2009 from complications from burial at sea. A widower, his survivors include emphysema at age 76. A graduate of the two sons and a daughter. University of North Carolina, where he was Battalion Commander of the Navy ROTC unit Robert C. Tilden (75), a Fellow Emeritus from and the co-captain and the most valuable player Cedar Rapids, Iowa, retired from Simmons on the lacrosse team. He had served for three Perrine, died October 12, 2009 at age 81. A years in the United States Marine Corps. After graduate of the University of Iowa, for both graduating from Georgetown University Law undergraduate and law degrees, he served as School he served as Assistant Corporation Notes Editor of his law review and graduated Counsel for the District of Columbia. He with honors. He had served in the United States was a past president of the Bar Association of Army JAG Corps during the Korean Confl ict. the District of Columbia and of the National He was a charter member of the Iowa Academy Association of Railroad Counsel and had of Trial Lawyers. He had served as President chaired the College’s State Committee for of his county Bar and had also served on the the District of Columbia. He had successfully Iowa Supreme Court’s Advisory Committee represented the Archdiocese of Washington in on Rules. He had served on several local civic a 1979 suit brought by an atheist in an attempt and charitable boards and as general counsel to prevent Pope John Paul II from celebrating and a director of Perpetual Savings Bank. His Mass on the National Mall. His wife had survivors include his wife, three daughters predeceased him. and a son.

Richard J. Tonkin (77), a Fellow Emeritus from Harper Woods, Michigan, retired from Vandeveer Garzia, died October 17, 2009 at age 85. He was

THE BULLETIN 75 PRSRT STANDARD T HE BULLETIN U.S. POSTAGE of the PAID SUNDANCE PRESS AMERICAN COLLEGE OF TRIAL LAWYERS 85719 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612

Statement of Purpose

The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and those whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years’ experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who pros- ecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. 

“In this select circle, we fi nd pleasure and charm in the illustrious company of our contemporaries and take the keenest delight in exalting our friendships.”

HON. EMIL GUMPERT, CHANCELLOR-FOUNDER, ACTL

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