NUMBER 61 SPRING 2009

T H E B U L L E T I N

COURAGEOUS ADVOCACY AWARD RENAMED for GRIFFIN BELL

LONGTIME COLLEGE LEADER HAS SINCE DIED

A t the Toronto meeting in September, then President-Elect John J. (Jack) Dalton announced that the College’s Board of Regents had renamed its Courageous Advocacy Award the Griffi n Bell Award for Courageous Advocacy in honor of College Past President Griffi n B. Bell. Judge Bell, who later died on January 5, 2009, was unable to attend the presentation.

Griffi n B. Bell Con’t on page 6

This Issue: !" Pages FELLOWS TO THE BENCH The College is pleased to announce the following new Judicial Fellows:

Marcus Z. Shar, Circuit Court for Baltimore City, Baltimore, Maryland.

Anthony J. Trenga, U.S. District Court, Eastern District of Virginia, Alexandria, Virginia.

Richard T. Tucker, Associate Justice of Superior Court, Worcester, Massachusetts.

IN THIS ISSUE

Award Named for Gri! n Bell ...... Cover Canadian Bar President Speaks ...... 36 Fellows to the Bench ...... 2 Ontario Premier Welcomes College ...... 38 From the Editorial Board ...... 3 Ontario Chief Justice’s Remarks ...... 40 Toronto Meeting Overview ...... 4 Quebec Chief Justice’s Remarks ...... 46 Tribute to Gri! n Bell ...... 8 Meet Your New College Secretary...... 47 College Elects New O! cers ...... 13 Hockey and Fighting: A Debate ...... 48 New Regents Elected ...... 13 " e Quest to End HIV/AIDS ...... 54 Alito Made Honorary Fellow ...... 14 Jewison: " e Artist As An Advocate ...... 58 Rothstein Made Honorary Fellow ...... 20 Retiring Regents and Chairs ...... 67 Gates Award to Kaye ...... 24 Technology in the Courtroom ...... 68 Chief Judge Kaye’s Remarks ...... 27 College Inducts Ninety-Nine...... 72 Gumpert Award to Utah Group ...... 30 Inductee Response ...... 74 Toronto Mayor Welcomes Fellows ...... 32 In Memoriam ...... 78 Student Competition Winners ...... 35

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 F R O M T H E The Bulletin E D I TO R I A L B O A R D Chancellor-Founder As has become our custom, we report in some Hon. Emil Gumpert (1895-1982) detail the content of the programs at the 2008 Annual Meeting in Toronto. For those of you Officers who were present, this may serve as a reminder John J. (Jack) Dalton, President Joan. A. Lukey, President-Elect of what you heard. Those of you who could not Thomas H. Tongue, Secretary Gregory P. Joseph, Treasurer attend will fi nd the program that you missed Mikel L. Stout, Immediate Past President rich with wisdom, eloquence and humor. Board of Regents

Paul D. Bekman Christy D. Jones Though we regard all the presentations we have Baltimore, Maryland Jackson, Mississippi summarized as worthy of your time, we call es- Robert L. Byman Gregory P. Joseph Chicago, Illinois New York, New York pecial attention to several of them. J. Donald Cowan, Jr. Philip J. Kessler Greensboro, North Carolina Detroit, Michigan The tongue-in-cheek advice of newly inducted John J. (Jack)Dalton Joan A. Lukey Atlanta, Georgia Boston, Massachusetts Honorary Fellow Canadian Supreme Court Michel Decary, Q.C. Paul S. Meyer Montreal, Canada Costa Mesa, California Justice Marshall F. Rothstein to appellate ad-

Francis X. Dee John S. Siffert vocates is a classic. The inspiring story of Fel- Newark, New Jersey New York, New York low John McGoldrick’s segue´ from the cor- Bruce W. Felmly Mikel L. Stout Manchester, New Hampshire Wichita, Kansas porate world to the crusade to fi nd a vaccine Paul T. Fortino Thomas H. Tongue against HIV/AIDS should be an example for Portland, Oregon Portland, Oregon all of us. Famed Canadian movie producer Phillip R. Garrison Chilton Davis Varner Springfi eld, Missouri Atlanta, Georgia Norman Jewison’s address on the use of art in Robert A. Goodin Francis M. Wikstrom San Francisco, California Salt Lake City, Utah the search for truth and justice is one that every lawyer ought to read and ponder. Editorial Board E. Osborne Ayscue, Jr., Charlotte, North Carolina, Chair Susan S. Brewer, Morgantown, West Virginia, Vice Chair President Jack Dalton’s announcement of James J. Brosnahan, San Francisco, California Richard C. Cahn, Melville, New York the renaming of the College’s Courageous Andrew M. Coats, Norman, Oklahoma Michael A. Cooper, New York, New York Advocacy Award for former Federal Circuit Patricia D. S. (Trisha) Jackson, Toronto, Ontario Timothy D. Kelly, Minneapolis, Minnesota Judge, Attorney General of the United States Hon. Garr M. King, Portland, Oregon Warren B. Lightfoot, Birmingham, Alabama and College Past President Gri! n B. Bell, Simon V. Potter, Montreal, Quebec Conrad M. Shumadine, Norfolk, Virginia who has since died, marks a landmark in the Michael A. Williams, Denver, Colorado G. Gray Wilson, Winston-Salem, North Carolina College’s history. Robert L. Byman, Chicago, Illinois, Regent Liaison

Marion A. Ellis, Editor Telephone: 704.366.6599 We remind you of our desire to hear from Email: [email protected] Liz Doten, Art Direction and Design you, whether it be a suggestion of how we can Email: [email protected] improve this publication or a proposed opinion

American College of Trial Lawyers piece. 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 © 2008

THE BULLETIN ! 3 CANADIAN FELLOWS PUT THEIR BEST FOOT FORWARD in TORONTO

In what was billed as the College’s  rst meeting in Toronto, the Canadian Fellows outdid themselves.

From the opening reception at historic Osgoode Hall, through the opening session on Friday at which the colours (note the Canadian spelling!) were trooped in to the accompaniment of bagpipes and the national anthems of the United States and Canada (the latter in two languages) were rendered by John McDermott, one of the original Three Ten- ors, to the  nal banquet, at which Canadian induct- ee James S. Ehmann, Q.C., Regina, Saskatchewan delivered a tutorial on the rule against perpetuities, the entire meeting was a Canadian tour de force.

As a historical note, those of a certain age would have remembered that in 1988 the College held a brief meeting and a banquet as an adjunct of the American Bar Association’s annual meeting, but Toronto skyline this was indeed the College’s  rst real meeting in Toronto.

4 ! THE BULLETIN At the opening session on Grif n B. Bell. (A tribute to boardroom of a major nation- Friday, the College was Judge Bell, who has since died al pharmaceutical company greeted by, in order: Dalton at age 90, can be found in this to helping to lead the effort McGuinty, the Premier of issue.) to combat the HIV/AIDS epi- Ontario; Toronto Mayor demic in sub-Saharan Africa. David Miller; Canadian Bar President Mikel L. Stout also Association President Guy announced the presentation Iconic Canadian  lm produc- Joubert; Warren K. Winkler, of the Emil Gumpert Award er Norman Jewison deliv- the Chief Justice of Ontario, for excellence in improving ered a spellbinding address and J. J. Michel Robert, the administration of justice on “The Artist as an Advocate JFACTL Chief Justice of to “And Justice for All,” a for Truth and Justice,” using Quebec. consortium of the three legal clips from several of his re- services providers in Utah. vered movies from the civil Retired Canadian Supreme rights era. Court Justice Jack Major, On Friday night, the Fellows Q.C., S.C.C., FACTL inducted and their guests were enter- The Saturday morning pro- his successor, Justice Marshall tained at an evening event gram ended with a panel pre- E. Rothstein, as an Honorary billed as “Your Passport to sentation of the 21st Century Fellow. Justice Rothstein’s Canada—A Destination for electronic tools available to tongue-in-cheek address on All Seasons.” trial lawyers. how to impress a Canadian appellate court had the audi- The Saturday morning pro- Ninety-nine inductees were ence rolling in the aisles. gram was highlighted by the introduced to the College at a presentation by Past Presi- Saturday morning breakfast, The best oralists in both the dent Ralph I. Lancaster of and they and their spouses Canadian Moot Court Com- an Honorary Fellowship to were feted at a Saturday lun- petition (the Gale Cup) and United States Supreme Court cheon. the Canadian National Trial Associate Justice Samuel A. Competition (the Sopinka Alito, Jr. and the presentation The meeting ended with the Cup) addressed the Fellows of the Samuel E. Gates Liti- traditional black-tie dinner and their guests. To end the gation Award to Chief Judge and induction ceremony. morning, the Canadians in- Judith S. Kaye, JFACTL of the troduced their visitors from New York Court of Appeals. Excerpts from the addresses of the south to the intricacies of various program participants the Canadian national sport, Fellow John L. McGoldrick, may be found elsewhere in hockey. whom many remembered for this issue. his eloquent 2002 tribute to At the opening session Presi- his adopted city, New York, dent John J. (Jack) Dalton an- in the wake of the 9/11 at- nounced the renaming of the tack and his address on pro- College’s Courageous Advo- fessional excellence, told the cacy Award for Past President story of his journey from the

THE BULLETIN ! 5 COURAGEOUS ADVOCACY, cont’d from cover The fi fty-year history of the focus attention on advocates who The award was not named at College, Sages of Their Craft, unselfi shly represent clients in the time of its creation. In June describes the creation of the unpopular or diffi cult cases. The 2008, the Board of Regents had Courageous Advocacy Award. In Jaworski committee subsequently chosen to name it for Griffi n Bell. 1964, Jack Ruby, a Dallas, Texas, recommended that the College In making the announcement, nightclub owner, was to be tried create the Courageous Advocacy Dalton said, “After this meeting, for the shooting of Lee Harvey Award, and the Regents approved we will deliver to Judge Bell Oswald, the accused killer of the proposal. a DVD of this portion of our President John F. Kennedy, an meeting, and this tribute will also event that had been witnessed Long regarded as the College’s be marked by the preparation by live on national television. A highest honor, the award has a former past president of the California lawyer, Melvin been given only thirteen times College, Warren Lightfoot of Belli, had boasted publicly and in the ensuing forty-four years, Alabama, of a medallion which frequently about his own courage “proportionally equivalent,” as will have the likeness of Judge and his sacrifi ce in defending president-elect Dalton observed, Bell on it, to be delivered to Ruby against the resulting “to about the frequency with future honorees. Judge Bell and criminal charges against him. which we elect a president in Nancy today are in their home the United States.” As a curious in Americus, Georgia. They are Troubled by the self-serving footnote to history, eleven years positive and of strong mind as he comments and conduct of Belli, after the award was created confronts illnesses that prevent College president Whitney North the second recipient was Leon him from being with us today.” Seymour asked past president Jaworski, who received the award Leon Jaworski of Houston, for his service as Independent The resolution renaming the Texas, to chair a committee to Counsel in the investigation of award follows on page seven. advise the Board of Regents what the Watergate scandal. might done by the College to

RECIPIENTSof the AWARD HAVE BEEN:

George E. Allen, FACTL 1965 Max D. Stern, FACTL 1992 Leon Jaworski, FACTL 1975 Julius L. Chambers, FACTL 1994 Barnabas F. Sears, FACTL 1975 W. Glen How, Q.C. 1997 Robert W. Meserve, FACTL 1979 Nickolas C. Murnion 2000 William R. Gray, FACTL 1985 Oliver W. Hill, FACTL 2001 Stanton Bloom 1990 Bryan A. Stevenson 2004 Hon. Robert J. Lewis, Jr. 1991

6 ! THE BULLETIN THE BULLETIN ! 7 GRIFFIN BOYETTE BELL OCTOBER 31, 1918-JANUARY 5, 2009

“CITIZEN SOLDIER, TRIAL LAWYER,

FEDERAL APPELLATE JUDGE, ATTORNEY

GENERAL of the UNITED STATES”

This inscription on the tombstone of College Past President Grif n Bell in the Oak Grove Cemetery in his native Americus, Georgia is all too short a summary of a remarkable life.

The thirty- fth president of the American College of Trial Law- yers, Bell died of complications from pancreatic cancer on Janu- ary 5, 2009 at age 90. Several months earlier, the College had renamed its highest award, the Courageous Advocacy Award, in his honor.

Born October 31, 1918, the third son of a farmer turned store- keeper, he had decided as a Griffi n Bell and former President Jimmy Carter. child that he wanted to be a Photography Courtesy of Carter Center lawyer after watching trials in the county court- house. A graduate of Georgia Southwestern Col- lege, he was a Major in the Army Transportation Corps in World War II. After the war he went to

8 ! THE BULLETIN law school at Mercer Univer- Obviously Bell was satis ed appointed him to the United sity on the GI Bill, graduating with what he saw, since he States Court of Appeals for with honors and passing the accepted the  rm’s offer. His the Fifth Circuit. He served bar examination after his sec- mentor at King & Spalding on that court for almost  fteen ond year. Indeed, he served was Robert Troutman, a prin- years during the height of the as the uncompensated city at- cipal lawyer for the Coca-Cola civil rights era, participat- torney for the town of Warner Company and an early Fellow ing in many of the landmark Robins during his third year of the American College of cases that slowly dismantled of law school. Trial Lawyers. From the be- segregation and other forms ginning, Bell made his mark. of discrimination in the deep After he had practiced in As his partner Bob Steed South. He left the court in Savannah and then Rome, observed, “He was thinking March 1976 to return to King Georgia for a total of six and outside the box before there & Spalding and was inducted one half years and had ac- was a box.” into the College in 1977. quired a growing reputation, he was invited to join the In the 1950s as an unpaid vol- That same year fellow Geor- Atlanta  rm King & Spald- unteer aide to then Governor gian President Jimmy Carter ing. By Bell’s own account, Ernest Vandiver, he persuad- persuaded him to become “Mr. Spalding recruited me, ed the governor, who had the 72nd Attorney General and I turned him down. He campaigned against school of the United States. Taking sent a committee at  rst, but desegregation, to create a of ce in the wake of Water- because I wasn’t certain what General Assembly Commis- gate, Bell quickly set about the situation was, I wanted to sion on Schools to hold hear- rehabilitating the reputation talk to the head man. So, Mr. ings around the state. That of the Department of Justice. Spalding called me person- commission ultimately rec- To establish the transparency ally . . . and asked me why I ommended that the Georgia of the department’s leader- had turned them down. He public schools be preserved ship, he posted a list of all felt insulted. I said, ‘Well, I at all costs, rather than being his outside contacts daily, don’t understand your busi- closed in the face of deseg- making them available to the ness plan. I don’t see how regation. Bell is thus widely press. In the wake of reports you make enough money to credited with creating a plan of widespread abuse of wire- pay the rent on the space you to defuse racial tensions and taps by the previous admin- have, to start out with. And enable Georgia to desegregate istration, he helped to craft I’d like to see the books.’ And its public schools, rather than FISA, the Foreign Intelligence he was astounded that this closing them. Surveillance Act, placing con- young lawyer wanted to see trol of wiretapping by law the books! But he said, ‘How In 1960 Bell chaired the Geor- enforcement of cials under many years would you want gia presidential campaign of the supervision of the courts. to see?’ I said, ‘I’d like to go John F. Kennedy, delivering He was instrumental in help- back to the beginning of the the candidate a larger major- ing President Carter appoint Great Depression — 1929.’” ity than did his home state. more women and minorities In 1961 President Kennedy L

THE BULLETIN ! 9 as federal prosecutors and a sacred calling – as perhaps Board of Regents, with voice judges. On a walk through the most noble of all profes- and the right to make and the woods at Camp David, sions because of the opportu- second motions, but with no he persuaded a reluctant nity and, indeed, obligation vote. A constant presence at Eighth Circuit Judge William lawyers have to serve our Regents’ meetings, Judge Bell Webster to leave the bench to system of justice.” was never reluctant to add his head the beleaguered Central voice, always with humor, to Intelligence Agency. Back in private practice, Bell the debate. developed a specialty of in- Leaving the government in ternal corporate investiga- For the rest of his life, he was 1979, Bell again returned to tions and was a key  gure in regularly called to public ser- King & Spalding. He wrote many high-pro le legal en- vice by both Democratic and a book about his experience gagements. In the words of Republican administrations. as Attorney General entitled his long-time partner, Frank When former Department of Taking Care of the Law. When Jones, likewise a past presi- Defense General Counsel Wil- he left the of ce of Attorney dent of the College, “Grif n liam J. Haynes III delivered General, then Chief Justice Bell became one of the best the Lewis Powell Lecture to Warren Burger said: “No known lawyers in the nation, the Fellows of the College at  ner man has ever occupied representing a wide diversity its Spring 2008 meeting, he the great of ce of Attorney of clients in major litigation began with a tribute to Judge General of the United States and business matters. Some Bell and delivered the thanks or discharged his duties with would say . . . that he was the of the Secretary of Defense greater distinction.” most admired lawyer in our for his service to that depart- country.” ment. Few in the audience At his death, William D. Un- understood the signi cance derwood, the president of Bell served as president of the of those remarks. In the wake Mercer University, on whose College in 1985-86. When he of 9/11, Haynes had twice Board of Trustees Bell served became president at the Lon- called on Grif n Bell for help, six terms, observed, “When don meeting in 1985, he im-  rst to advise the department two of the most turbulent po- mediately thrust the College in dealing with the discovery litical storms of the past cen- into two new projects. He that, unknown to his superi- tury swept through America appointed a task force to look ors, a member of the depart- – desegregation in the South, into possible recommenda- ment had been systematically and the Watergate scandal in tions for tort reform legisla- mining and storing data on Washington – we as a people tion and he ordered a special United States citizens and turned to Judge Bell, and there retreat of the Board of Regents second, to assist in creating he stood,  rm, unscathed, and and past presidents to con- a structure for insuring due unbending against the storm, sider changes relating to the process in appeals from the guarding the highest and best growth and development of controversial military tribu- principles of American law the College. Past presidents nals the Bush administration and our constitutional repub- of the College remain ex of - had established at Guanta- lic. . . . He viewed the law as cio members of the College’s namo Bay.

10 ! THE BULLETIN Bell’s folksy southern charm at his memorial service that Judge Bell received and ac- and his self-deprecating sense on one occasion a few years cepted the diagnosis that of humor were legendary. ago, he shot a 39 on the front he had a form of pancreatic His deep Georgia accent was side of a very dif cult course. cancer, for which he was told a favorite target of his own The law  rm’s in-house bul- there was no cure, with the humor. He loved to tell the letin featured a picture of equanimity that had marked story of an international con- him on the cover with the his entire career. At the an- ference at which he led the statement that, “He brought nual meeting of the Board of United States delegation and the golf course to its knees”. Trustees of Mercer Univer- made the opening remarks Someone asked Judge Bell af- sity on December 4, 2008, a for his delegation. After his terwards what his score was month before his death, the remarks, the British delegate on the back side; he replied, University unveiled a bust sought him out, laughing, “If I had wanted you to know of Bell. In an impromptu re- and informed him, “Grif- that, I would have told you.” sponse, he delivered his own  n, I could not understand a valedictory: word you were saying and so For his seventy- fth birthday I put on my earphones and party, President Carter, who “I’ve had a great life — great switched to the French trans- could not be present, had opportunities to serve. I don’t lation.” made a videotape of his re- regret anything I’ve done. I’m marks. His most notable line, well-satis ed that the Lord Once a group of Fellows of the delivered dead-pan, but with has given me a square deal. College who were guests at a a twinkle in his eye: “Grif n I’ve lived now to be ninety party at his Sea Island home and I got along  ne in Wash- years old, and I revere all the were admiring a watercolor ington once we settled on years I’ve been associated painting of the White House, whether the President or the with Mercer. And also, all the a gift from Jimmy Carter, and ‘Tuney Gen’l was going to years of public service I’ve a framed  ve dollar bill au- run the cabinet meetings.” had. And, all the years of law tographed by George H. W. practice that I’ve had. I don’t Bush, the product of a golf- At Bell’s death, Carter said in a think there is any greater call- ing bet. One of the guests statement released through the ing than being a lawyer and remarked, “You worked for Carter Center. “Rosalynn and being willing to serve. There President Kennedy and have I are deeply saddened by the are lots of lawyers, but we represented both President loss of our dear friend Grif n don’t have too many who Carter and President Bush Bell, A trusted and enduring are willing to take these pub- (in the Iran Contra investiga- public  gure, Grif n’s integri- lic jobs. I’ve been able to do tion)?” Bell’s instant rejoin- ty, professionalism and charm both, and for that I am very der, delivered with his trade- were greatly valued across thankful. I’m thankful for mark grin: “Fast-growing party lines and presidential all the friends in this room. I legal specialty.” administrations. . . . Grif n appreciate this honor. I never made many lasting contribu- thought I’d have a bust, but Grif n loved to play golf. His tions to his native Georgia and I’m grateful for it. . . . Thank partner Frank Jones recalled [his] country. . . . “ L

THE BULLETIN ! 11 you very much.” ‘I feel like I am dying inch by – his partner Jones called him inch. In heaven, dying must a “monsoon-maker”—he A week later his second book, be handled by committee. was never willing to accept Footnote to History: A Primer That is why it is taking so as large a share of the  rm’s on the American Political Char- long.’” income as his partners felt he acter, was released. An ar- was entitled to receive. His ticle in the Atlanta Business In his eulogy at the January position: “There is no room Chronicle, published in ad- 7 memorial service, a day on for greed at our  rm.” And vance of its release entitled which  ags were ordered low- he was eternally grateful, a “Grif n Bell Prepares for His ered to half-staff throughout virtue that stood out in his Final Chapter,” read in part Georgia, past president Jones remarks as he looked back on as follows: “I don’t have any enumerated the qualities that his life as it neared an end. complaints,” said Bell, who set Grif n Bell apart: He was is suffering from untreatable a person of unimpeachable Mercer President Under- pancreatic cancer and added integrity, a role model of in- wood summed it up this that he’s just waiting around tegrity, of honesty, of trust- way: “Judge Bell never forgot to die. “I’m well-satis ed worthiness, of uprightness. where he came from. He nev- with my life. I’m perfectly Bell de ned integrity as “do- er lost his grounding. And he at peace. . . . I wouldn’t be ing what’s right.” He was never forgot the people he disappointed if I died right creative. He was able to sift knew along the way. As far as away, but it’s nice to keep on through a huge mass of com- I could tell, he never seemed living,” Bell said. “I’m thank- plicated facts and lengthy to forget anything.” ful for the extra time I’m get- documents and develop a le- ting now.” gal position that made good Bell’s  rst wife, Mary Foy common sense. Powell, a native of Richmond, The article ended: “When Bell Virginia whom he married speaks of this  nal chapter in He saw lawyers as “problem during World War II, died in his life, he’s amazingly open solvers.” He was a zealous 2000. He later married Nancy and matter-of-fact, almost advocate for his clients, but Duckworth Kinnebrew, the as if he’s talking about what at the same time he sought to widow of a family friend, he had for breakfast. There  nd a solution to a problem who survives him. His sur- is no remorse or anxiety, just that was practical and would vivors also include his son, appreciation for the life he’s serve the best interests of all Grif n, Jr., an Atlanta lawyer, lived and for every day he concerned. He often viewed one grandson, also a lawyer, a still has.” himself as being “the lawyer granddaughter and  ve great for the situation.” He believed grandchildren. Even at the end of his life, strongly that every lawyer Bell’s humor did not des- has an obligation to serve the E. Osborne Ayscue, Jr. ert him. His partner Robert public interest. L. Steed relates: “In his last hours, as Judge Bell was ly- He was unsel sh. A rainmak- ing in the bed in pain, he said, er to an extraordinary degree

12 ! THE BULLETIN COLLEGE ELECTS NEW OFFICERS

John J. (Jack) Dalton of Atlanta, Georgia was installed as the College’s new President, succeeding Mikel L. Stout of Wichita, Kansas.

Joan A. Lukey of Boston, Massachusetts is the incoming President-Elect.

! omas H. Tongue of Portland, Oregon will serve as Secretary.

Gregory P. Joseph of New York, New York will serve as Treasurer.

TWO NEW REGENTS

Robert L. Byman, Regent for District Eight, is a partner in Jenner & Block of Chicago. He was inducted into the College in 1992. Byman is a 1967 graduate of the University of Illinois and received his J.D. in 1970 from the University of Illinois.

Francis M. Wikstrom, Regent for District Four, became a Fellow in 1995. He is a shareholder in Parsons Behle & Latimer of Salt Lake City, Utah. A 1972 graduate of Weber State University, Wikstrom received his J.D. in 1974 from Yale University.

THE BULLETIN ! 13 ALITO, INDUCTED AS HONORARY

FELLOW, REFLECTS ON JUDGES in a DEMOCRATIC SOCIETY

THE BASEBALL ANALOGY

Associate Justice Samuel A. Alito, Jr. was inducted as an Honorary Fellow at the annual meeting in Toronto. Past President Ralph I. Lancaster made the presentation, characterizing Alito as “a man who has dedicated his life to public service.”

Born in 1950 in Trenton, New Jersey, educated at Princ- eton and Yale Law School, Justice Alito began his career in 1976 as law clerk to Judge Leonard I. Garth of the Third Circuit Court of Appeals. From 1977 to 1981 he was As- sistant U.S. Attorney for the District of New Jersey. From 1981 to 1985 he was Assistant to Solicitor General Rex E. Lee. From 1985 to 1987 he was Deputy Assistant Attorney General in the Offi ce of Legal Counsel and from 1987 to 1990 U.S. Attorney for the District of New Jersey.

In 1990 he was appointed Judge of the U.S. Court of Ap- peals for the First Circuit, where he served for sixteen years. He was appointed and confi rmed to the United States Su- preme Court in 2006.

Justice Alito’s remarks accepting the Honorary Fellowship follow.

Samuel A. Alito

14 ! THE BULLETIN JUSTICE ALITO: I am truly be enforced. And I don’t know THE ROLE OF CIVIC honored to receive an Honorary of any way in which rights can be AND LEGAL CULTURE Fellowship in your organization, enforced against the government because I am well aware of the and against popular sentiment at But something else, I think, is also great work that you do. . . . I times except through the action fundamental and indispensable, . think that this organization helps of a judiciary that is truly inde- . . a legal culture and a broader to preserve the best traditions of pendent of the other branches civic culture that appreciates the our profession. . . . of government and also suitably role that a judiciary should play independent of the currents of in a democratic society. I think INDEPENDENT popular opinion that may be pre- we have had that for most of our JUDICIARY vailing at a particular point. history in the United States, and I suspect the same is true up here I applaud . . . the report that you THE ROLE OF in Canada, but there were a num- issued in 2006 entitled “Judicial CONSTITUTIONAL ber of things that happened to me Independence: A Cornerstone of STRUCTURE during the past term of the court Democracy.” There has been a lot that made me wary about changes of talk in recent years, and I think An important aspect of this rela- in our legal culture and in our justifi ably so, about the impor- tionship between an independent civic culture. I don’t want to ex- tance of an independent judiciary judiciary and a democratic form aggerate the importance of these, in preserving the rule of law. I of government is proper respect but I think they are worth men- thought your report was excellent. on the part of the judges who have tioning. It was a great contribution to an the honor to serve in that judiciary important national debate, and I for the fundamentally democratic Let me begin with a public opin- thought that the title of the report character of the government and ion poll that I recently read about. got things exactly right: “Judicial the society that they are charged The question that was put to Independence: A Cornerstone of with serving. This structure of people was phrased, as questions Democracy.” a truly independent judiciary is, in public opinion polls often are, of course, dependent on a sound in a way that was overly simpli- Think about the title. It is very constitutional structure, a sound fi ed. But the question was an important because judicial inde- legal structure on institutions important one, and it said: “How pendence is critical to the kind that are framed, as I think our do you think judges should be- of democracy that we have in the institutions were, with a realistic have in interpreting the Constitu- United States and that those of appreciation of the way people re- tion? Should they interpret the you who are in Canada have up ally behave in political life. Not Constitution as it is written or here, that is, not just a democracy an idealized and unrealistic con- should they be guided mainly by in which the majority rules, but ception of political behavior, but their own sense of what is just and a democracy in which individual a realistic conception of political fair?” Now, those people who are rights are respected. There have behavior that was informed, not sophisticated about the legal sys- been many countries that have just by a study of political theory tem . . . judges, practitioners like had wonderful constitutions that and the history of past democra- the distinguished practitioners profess all of the important rights cies, but also by hard experience who are here, legal scholars, . . . that we cherish, but we know that in the practical world of politics. know that the choice is not exact- those constitutions are nothing That constitutional structure is ly that simple, but those are really but words unless the rights can critically important. L

THE BULLETIN ! 15 the two models that vie often for clearly a right answer and a wrong that I had been interested in many public acceptance. answer. This is very much unlike years earlier, but I had been away what judges do in interpreting from it. I read the articles that THE BASEBALL UMPIRE the Constitution and also in were assigned to the students for ANALOGY interpreting a lot of important laws. that class, and I was reminded that, Think of the important phrases of among political scientists, the prom- A lot of you may remember that the Constitution that fi gure most inent model that is used to analyze during his confi rmation hearings, frequently in litigation— things like and predict judicial behavior is the Chief Justice Roberts compared due process and equal protection, so-called attitudinal model. The judges to baseball umpires. Now, unreasonable searches and seizures, attitudinal model posits that what baseball is a topic that has inter- even a concept like freedom of judges are doing is to maximize the ested me for a long time. A lot of speech or no establishment of implementation of their own policy people thought that the Chief Jus- religion— not exactly the same sort preferences to the greatest degree tice’s analogy between judges and of cut-and-dried rule as the rule possible. Very simple. umpires was a very apt one, but about whether a ball that is hit into there were those who immediately the stands in a baseball game is a The article that we read located ev- attacked it. They charged that what fair ball or a foul ball. ery justice in the Supreme Court, he was advocating was exactly one during an era prior to my service of the simplistic models that was I am going to come back to um- in the Court I was happy to learn, referenced in the public opinion pires. Let me put that aside for by analyzing what was said about poll that I mentioned, an entirely now. So that is one model of what the justice during the justice’s con- mechanical sort of jurisprudence. judges do. Now, let me mention a fi rmation hearings in editorials . . couple of things that happened to . published in various newspapers A very distinguished advocate be- me this term that highlight the in- and assigning an ideological rank fore our court, a constitutional creasing popularity of a very differ- to the justice according to the com- scholar, wrote an entry on a blog ent model of what a good judge is ments in the newspaper. So, we about this that I saw. Here is an supposed to do. have the attitudinal model used by explanation of the point that he political scientists. made: Let’s take a typical base- THE ATTITUDINAL ball play. The batter hits a long fl y MODEL WORDS MATTER ball into the outfi eld stands. Is it a home run or is it a foul ball? Well, Back in February, I judged a moot A couple of weeks later, I attended it is a very straightforward call. The court at a law school. In connec- a dinner for a class of new judges. rules of baseball are very clear. If tion with that, the other two judges The Federal Judicial Center in . . . the ball enters the stands on on the panel and I sat in and par- Washington periodically has orien- the fair side of the foul pole or hits ticipated in a class that was being tation sessions for a class of newly the foul pole, it is a fair ball. It is a taught at the law school by a friend appointed federal judges, and at the home run. If it enters the stands on of mine who is on the faculty and end of each class there is a dinner the foul side of the pole, it is a foul one of my former law clerks. The at the Supreme Court. At the end ball. It is just a long strike, as the topic of the course is an interesting of the dinner, several of the judges baseball announcers typically say. one that I think is not covered in in the class gave little talks. One very many law school curriculums, of the judges who spoke had been The point that this advocate and . . . the study of judicial decision- a very distinguished law professor, scholar was making is that these making from the political science and she spoke about the things that are very clear rules and there is perspective. This was something she had learned during her fi rst few

16 ! THE BULLETIN years on the Court of Appeals. She EDITORIAL COMMENT in Employment Act, asserting that said, “One of the big things that I she had been the victim of unlawful learned, or was reminded of, is that, A fi nal thing that happened during retaliation. contrary to what a lot of my col- the term: for some reason at the end leagues in academia thought and of the term I thought it would be I wrote the opinion for the court still think, words really matter in interesting to collect all of the edi- holding that, contrary to the deci- actual court cases.” I thought this torials that had been written about sion of some of the Courts of Ap- was quite astonishing. As a judge, the work of the Supreme Court peals, there is a retaliation claim I spend most of my time trying to during the past term in two of the under the Age Discrimination in decipher the meaning of words, the nation’s leading newspapers. So I Employment Act, and so her re- meaning of words in diffi cult fed- did have those collected and I read taliation claim could go forward. It eral statutes and other legal docu- through them and I found, I think wasn’t a unanimous opinion. The ments, but she was pointing out not to my surprise, that in one of Chief Justice, Justice Scalia and that from the perspective of a law the two newspapers I could not fi nd Justice Thomas, if I remember cor- professor, she had re-learned or a single editorial that said, “We re- rectly, voted the other way. learned maybe for the fi rst time ally don’t like the results in this case, that words really matter. but we know that that is what the This editorial said, “We like the re- Constitution or the laws require.” sult in Gomez-Perez. We think that THE POLITICAL Every single editorial either praised there should be a retaliation claim COURT THEORY our work or criticized our work in under the ADEA, but we think that a way that was absolutely consistent Justice Alito’s opinion got the law For my birthday, my daughter gave with the clear policy preferences of wrong. The law doesn’t actually me a copy of Richard Posner’s new the editorial writers. In the other provide that.” And it is very im- book, “How Judges Think,” a very newspaper, the record was almost portant what the editorial said, for interesting book. I don’t know exactly the same. us to remember that there is a big whether any of you have read it, difference between what we want but it is, as everything Judge Posner But there was one exception, and so the law to mean and what the law writes, very provocative. When my that editorial is the one that I would actually means, a critical point. daughter’s roommate saw that she select to give an award. I don’t had picked this book as my birth- know what I would call it, maybe THE COMMON LAW day present, her roommate said, the Rule of Law Award, for the best OF UMPIRING “Why are you giving that book to editorial of the term. And, ironi- your father? Doesn’t he know al- cally, it was an editorial that was Now I am going to come back ready how judges think?” critical of one of the opinions that to umpires. I talked about just I had written. The case in ques- very briefl y . . . the Chief Justice’s Actually, it is more complicated tion was a case called Gomez-Perez. comparison of judges to umpires than that. There is a chapter in the It involved a woman who worked and the charge that he was advo- book that is entitled “The Supreme for the postal service. She claimed cating a view of judicial decision- Court is a Political Court.” . . . . that she had been subjected to age making that was simplistic. That Judge Posner argues that because of discrimination and that after she would be a correct charge if the the nature of the controversies that complained about the alleged dis- rules of baseball actually were the we are called upon to resolve, it is crimination to her superiors, they way the people making the charge impossible for us to “behave like had retaliated against her. So she think they are. But, in fact, they other judges.” sued under the Age Discrimination L

THE BULLETIN ! 17 are not all that way. Some of them umpire is understood in that way, professionalism.” Now, I was are quite different. you can see that it actually is much startled by this and I thought prob- more like the job that real judges do ably it would not be a good idea if I And I will give you one example. in deciding legal cases. made a tape that might well end up One of the calls that an umpire has on YouTube in which I said, “Sports to make during a baseball game GETTING THE LAW RIGHT offi cials are just like judges, and for is whether the batter has actually both of us it is really not about get- swung at the pitch. You know the Since we are in Canada, and I am ting it right.” So I didn’t. I modi- situation: The pitcher throws the talking about sports offi cials, I am fi ed my remarks. ball, the batter starts to swing but going to end by making a reference stops before taking a full swing, and to hockey. This . . . comparison But, actually, if you think about it, either the home plate umpire or the that Chief Justice Roberts made be- there is a sense in which the talking fi rst base umpire will say, “The bat- tween sports offi cials and judges has point is correct, because for judges ter went too far; that is a strike,” or, really caught on. I had a colleague at least . . . it is not about getting “No, the batter checked his swing when I was in New Jersey who was it right in the sense of getting the in time; it is not a swing.” Those a district court judge by day and an right result, getting the result that of you like me who played Little amateur hockey referee by night. . . our society would like to have at League baseball or who had chil- . Well, he asked me during the term that particular time in that par- dren who play Little League baseball to tape a few words to be broadcast ticular case under those particular probably know various rules relat- at the beginning of a conference circumstances. It is about deciding ing to this. One is it is a strike if the of sports offi cials, professional and the case in accordance with the law batter breaks his wrist. . . . Another amateur. And I said, “Okay, fi ne, I and the proper judicial role, which is that it is a strike if the bat passes would be happy to do that.” is really something at times quite over the plate. In fact, neither of different. And it is exactly at those those is really the baseball rule. The It was towards the end of the term, times that the rule of law is most applicable baseball rule says that it so I was quite harried when I did important. is a strike if the batter has struck at it. But a short time before the crew the ball. That is all it says. arrived to tape these remarks, some- So, I give you this challenge . . . as one from the organization arrived you read our opinions for the up- And so the . . . applicable base- and gave me talking points about coming term. If you like every one ball rule has delegated to umpires what they wanted me to say on of our decisions, if you like the re- the responsibility for developing, this tape, so I thought this was very sult in every one of our decisions, pretty much the way a common helpful; it made my job a little eas- then maybe we are not doing things law court develops the law, a com- ier. Fortunately, I looked over the right. If, however, there are cases mon law standard on the question talking points before I actually went where you say, “I really don’t like of whether the batter has struck at out to make the remarks, and I saw this result, but I can see that it may the ball. And I suspect that um- that point number one was, “Sports be the correct interpretation of the pires make that decision based on, offi cials are just like judges.” They law,” then we are doing exactly what what? Based on their observation are picking up on Chief Justice we are supposed to be doing. of the way this has been called tra- Roberts’ point. I said, “All right, I ditionally by all the umpires who can go along with that.” Thank you very much. went before them, the way the call was made by their colleagues, and Point number two, however, was, by their own experiences behind the “What are we trying to do? It is not plate. And so, when the job of the about getting it right. It is about

18 ! THE BULLETIN bon mot

I will never forget my fi rst conference on the Court. Now, I am the junior justice on the Court. . . . As you may know, the junior Justice on the U.S. Supreme Court has certain special duties, and they occur at the conference. . . . The most important of my duties as the junior guy is to keep the offi cial votes on whether we vote to grant cert in a case or to deny cert. No staff members are present when we meet in our conference, so it is my job to keep the votes. That is the most important part of my responsibilities.

My other responsibility is to answer the door, if anybody knocks on the door during our conference. Our table is arranged so that my seat is the one that is closest to the door, and periodically while we are meeting there will be a knock on the door, and it is my responsibility to get up and open the door and say, “Who is it? What do you want?” “Justice so-and-so has forgotten his or her glasses,” or, “Here is a cup of tea,” or a note from chambers or something like that. Not, when you think about it, a very diffi cult responsibility, but I was pretty nervous at the fi rst conference that I attended. I knew that I had this duty, but, as I said, I was incredibly impressed by the surround- ings, so when there was a knock on the door, it took me a little bit of time to process what was going on.

Before I joined the Court, the Court had not changed at all in personnel for eleven years. So, Stephen Breyer had been the junior Justice for eleven years. And he was used to the responsibilities of the offi ce. When there was the knock on the door, he was like the proverbial fi re-horse who heard the bell. So, before I could even process this information, he was up and headed for the door. And the Chief Justice had to say, “Steve, sit down. That is not your job anymore.” So now I am faster on the draw.

I also received some really excellent advice when I started. One of my colleagues said, “I am going to give you some advice that was given to me years ago when I started.” And so I was listening eagerly for the advice. He said, “You know, don’t feel bad. You are going to spend your fi rst fi ve years here on the Court wondering how in the world you ever got here, and you are going to spend all of the rest of your time here in the Court wondering how in the world your colleagues ever got here.”

Associate Justice Samuel A. Alito, Jr. bon mot

THE BULLETIN ! 19 CANADIAN JUSTICE ROTHSTEIN made HONORARY FELLOW

Canadian Supreme Court Justice Marshall E. Rothstein was inducted as an Honorary Fellow at the annual meeting in Toronto. The presentation was made by his predecessor, retired Justice Jack Major, Q.C., S.C.C., FACTL.

ACCEPTANCE REMARKS LACED WITH HUMOR AND WISDOM

A native of Winnepeg, Manitoba, the son of immigrants from Eastern Europe, he was educated at the University of Mani- toba. Called to the Bar in 1966, he became a Queen’s Coun- sel thirteen years later. He is married to Dr. Sheila Dorfman, a physician.

After practicing law for twenty-six years with the Winnipeg fi rm Aikins, MacAulay & Thorvaldson, he was appointed in 1992 to the Federal Court of Canada, Trial Division, ex offi - cio as a member of Appeal Division and to the Court Martial Appeal Court. In 1999 he was appointed a Judge of the Fed- eral Court of Appeal, and in 2006 he became the fi rst appoin- tee to the Supreme Court of Canada whose appointment was presented to a parliamentary committee under a controversial new procedure. Marshall E. Rothstein and President Mikel Stout The edited text of Justice Rothstein’s acceptance remarks follows.

20 ! THE BULLETIN JUSTICE ROTHSTEIN: Being in- in U.S. courts, and American law- limits are not meant to be taken troduced by Jack [Major] is a great yers may soon appear in Canadi- seriously. Factums should be as honor; it is no exaggeration to say an courts. Canadian lawyers will long as possible. It gives weight to that he is an icon of the Canadian le- be familiar with what I propose the argument. If the other side has gal community and of this College. to say, but the College I know is raised a good argument, don’t get concerned about continuing legal sucked into providing a response. His . . . introduction brings to education, so I thought it would Focus only on your winnable argu- mind the story of the Pope. He be instructive for me to help our ments, and if necessary, go off on had an engagement, he came American visitors with the practice tangents. That way, you will di- down to the car that was wait- and procedure they will encounter vert the judges from the diffi cult ing for him, and he decided that if they come to the Canadian Su- and contentious point. he wanted to drive, so he told the preme Court. I am going to cover chauffeur to get in the back, and ten points. Judges get bored with reading dry he started driving. Unfortunately, legal writing, so you should make he was going too fast and he was One, getting leave to appeal: the factum as rhetorical as possi- stopped. The offi cer came to the Generally, advocacy before our ble. References to Greek mythol- car window. When he saw the Supreme Court starts with the ogy, Shakespeare or John Grisham Pope, he decided he had better call application for leave to appeal. are a welcome change. headquarters. Some lawyers complain that it is hard to get leave in our court, but Three, approach to the oral hear- He . . . said, “We have an inci- there is no secret to getting leave. ing: As a senior, well-known law- dent here.” The desk sergeant said, Our Charter of Rights came into yer, certainly someone who is a “What is the problem?” The offi cer force in 1982. We like to write member of the College, you can said, “Well, I have stopped some- judgments about the Charter. It usually rely on your reputation. one really important for speeding.” doesn’t matter whether the case The judges will hang on your ev- Desk sergeant said, “Who is he?” is about the Charter or not. You ery word. The judges will be so Offi cer replied. “I am not sure, just have to sprinkle the Charter star-struck by your mere presence but the Pope is his chauffeur.” To- through the application at least before them that they will be won day, I feel like the guy sitting in half a dozen times. If it is bolded over even before you stand up. the back seat, with the Pope as my and put in large font, we won’t Whatever you say, you will have chauffeur. miss the point. Color is good. If them eating out of the palm of we see the Charter enough times, your hand. As Jack told you, I never made it as and it is highlighted, we will grant a real member of the College, but I leave. But if, in the remote case things go am happy to get in any way I can. badly, becoming meek and timid will Consider me a late bloomer. Two, the brief: We call the brief turn the tide. After all, we are the Su- a factum. In our court, you don’t preme Court of Canada. Make sure ADVICE CONCERNING have to worry about the factum. you keep saying, “It is respectfully CANADIAN APPELLATE You can patch up any errors or submitted,” and calling the judges PRACTICE omissions in oral argument. If you “Your Lordship” or “Your Lady- don’t put an argument in the fac- ship.” “Your Holiness” only works I want to talk, just for a moment, tum, and you argue it orally, you with some judges. If you really want and say to you that lawyers are very will gain the advantage of surprise. to make points, you should call the mobile these days. I know that Don’t worry about the page limit Chief Justice “Your Majesty”. Canadian lawyers have appeared in the rules for the factum. Those L

THE BULLETIN ! 21 Four, time: Your time for oral the most books. It helps to decide are: One, “I wasn’t counsel at the submissions is limited: for a party, the case. When you refer to the trial or at the Court of Appeal”; one hour, for an intervenor, only record or to books of authorities, two, “Another lawyer prepared the 15 minutes. So, how do you cover don’t waste time taking the judges factum, and she isn’t here”; three, everything you have to say in the to the material you are referring “I will get to it later”; four, “My limited time you have? The an- to. Just paraphrase. Your para- colleague will address the point”; swer is, talk fast. The judges are phrases will be better than the ex- fi ve, “You are missing the point”; always impressed by someone who cerpt from the record of the case six, “The question is irrelevant”; can talk fast, even if they can’t un- itself. seven, “You are trying to trap me, derstand the argument. and I won’t answer.” Some lawyers spend a good por- Five, presenting the arguments: tion of their time dictating the tab Nine, dealing with theoretical If you have a weak case, in our and page numbers from the re- questions: Sometimes a judge will court, you should do four things. cord to the judges. That is good. ask a hypothetical question about One, argue the facts in excruciat- The judges like to write down lists the application of the principles of ing detail, especially when they are of numbers. If they do follow up law that go beyond the facts of the agreed, and your opponent won’t on the references, they will enjoy case. You shouldn’t answer. It is a contradict them. Two, read from seeing if they can link the tab and trap. You are there to win the case the record. Make sure you do pages you dictated with the mate- for your client. You should just so in a monotone voice. Three, rial in the record, and then fi gure tell the judges there are no broad indicate a real sense of grievance out why you wanted them to look implications, and that they will and frustration with the Court of at it in the fi rst place. only confuse themselves if they Appeal. It will show victimhood. think there are. That is always useful. Four, show Seven, dealing with an authority a genuine desire to get even with that is against you: There are two And ten, persistence: As you ar- your opponent. The judges will ways to deal with a previous Su- gue, you must be persistent. You identify with your desire for ven- preme Court of Canada decision can’t give in. If the court says it geance. In describing your oppo- that is adverse to your position. disagrees with your point, just nent’s argument, use terms like One, tell the Court they got it carry on. If the court says it isn’t “absurd” and “preposterous.” wrong, and that they should over- interested in your point, don’t be rule the prior decision. Two, bet- discouraged. Just make it again. Six, dealing with the material: ter still, tell the judges what they Judges will eventually get it. Some counsel prepare a con- really meant in their prior deci- And never sit down. When you densed book for the day of the sion. That will be especially ef- are fi nished, if your time hasn’t hearing that they will refer to in fective if the judge who wrote the run out, just start all over again. oral argument. You shouldn’t decision is still on the bench. Don’t worry about the red light. bother with this, especially if you Continue until the Chief Justice are going to be referring to several Eight, dealing with questions: My pleads for mercy, and begs you to different volumes of the record pesky colleagues have a tendency to sit down. during argument. Judges are al- use up the time allotted to counsel ways impressed by counsel’s abil- with their pointless questions. I Well, if you believe any of what I ity to fl ip from book to book, and also ask questions, but they are al- have said, you really do need con- all the commotion helps to keep ways good. Some useful answers tinuing legal education. But let them awake. They even keep a in our court, if a question happens me assure you, we have seen it all, tally of which counsel referred to to strike a weak spot in your case or at least almost all.

22 ! THE BULLETIN INDEPENDENCE OF Now, I was appointed, as Jack told living room. Sun bleaches couches; BENCH AND BAR you, in 2006, and as he said, to get Three, put toilet seat DOWN.” my job I had to appear before that We are ordinary people. Seriously, I want to say what a truly parliamentary committee to an- great honor it is for me to be in- swer Members of Parliament. And One thing that comes from that ducted as an honorary member of it was the fi rst time, and as he told parliamentary hearing process is the College. We often talk about you, it was fairly benign. It is no- that it creates a lot of publicity for the independence of the judicia- where near as rigorous an exercise the nominee. A couple of months ry, and about the independence as the process before the [United after I was appointed, I called Air of the Bar. In North America, we States] Senate confi rmation com- Canada to order a ticket on a per- take these things for granted. We mittee. The difference in Canada is sonal matter. After the agent com- shouldn’t. When we look around that the parliamentary committee pleted the process, she said, “Roth- the world, we see many examples can advise, but it does not have the stein. So you are the guy they where the Bar and the Bench are power of consent. Under our Con- appointed to the Supreme Court?” not independent. Independence stitution, the Prime Minister has I said, “Yes”. She said, “I have a is a fragile thing. As lawyers, you the authority to appoint a judge to problem. I have to come to work have to be free to take on all kinds the Supreme Court with or with- very early, and I leave my house at of cases, to engage in courageous out the approval of the parliamen- 5 a.m. when it is dark. And some advocacy . . . . tary committee. mornings on my way to the bus, I run into a raccoon. I don’t like that Even for the most unpopular clients But whether the new process is raccoon; it scares me.” And she and causes, in litigation lawyers are good or bad is, as Jack indicated, said, “Can I kill the raccoon?” often acting against the govern- controversial. Judges and lawyers ment in one form or another, or for generally don’t like it because, I paused for a moment, thinking the government, or for large and as he said, they are concerned there were probably laws against powerful clients, where there can that it is going to degenerate into killing wild animals in the city, and sometimes be pressure to break the nasty, intrusive questioning of a then wondering about self-defense rules or to act in ways that are not nominee and overly politicize the and whether that would be an ex- consistent with professional stan- appointment process. But the press ception, and I end up saying, “Well, dards. In that context, nothing is and the public like it. They want to I don’t know”. She said, “You don’t more important than the integrity see the individual who will fi ll the know? You are a judge of the Su- and independence of counsel. position. preme Court! Can I or can’t I?” Well, I retreated to the judge’s safe The College, with its objective of JUDGES AS harbor, and explained to her that as elevating the standards of trial prac- ORDINARY PEOPLE a judge I couldn’t give legal advice. tice, the administration of justice, My answer did nothing to enhance and the ethics of the profession, is What they see is that ultimately, we her confi dence in the administra- a key participant in contributing to are ordinary people, at least most tion of justice. an independent Bar and Bench. As of us. I am sure I am. Last week, judges, we are reliant on the integ- I opened a can of tuna fi sh, and I thank you for the honor that has rity and independence of counsel, threw the empty can in the garbage. been bestowed upon me today . . . and in turn, on the important work Next morning, my wife sent me an and for your attention. Thank you and infl uence of the College, and e-mail in the offi ce: “Rules: One, very much. I will be proud to be an honorary wrap all fi sh products before put- member. ting in garbage; Two, close blinds in

THE BULLETIN ! 23 NEW YORK CHIEF JUDGE receives GATES AWARD

New York Court of Appeal Chief Judge Judith Smith Kaye, a Fellow of the College since 1986, became the twentieth winner of the Samuel E. Gates Litigation Award at the annual meeting of the American College of Trial Lawyers in Toronto.

Created by his law fi rm in 1980 in memory of a president-elect of the College who died shortly before he was to become president, the award honors a lawyer or judge who has made a signifi cant contribution to the improvement of the litigation process.

In presenting the award, Past Presi- dent Michael A. Cooper paid the following tribute to Judge Kaye: Michael Cooper, Judith Smith Kaye and Mikel L. Stout “In New York, the Chief Judge of the Court of Appeals, our highest court, is also the Chief Judge of the state, responsible for a court system with 3,500 full- and part- time judges, at an annual budget of more than two billion dollars. Those twin positions have been held for the past

24 ! THE BULLETIN fi fteen years by Judith S. comfortable. And automatic inevitably made her mark as a Kaye, who has served longer sequestration . . . in all criminal lawyer, and was appointed by a than any of her twenty-one cases, has been eliminated. newly elected governor, Mario predecessors. Cuomo, as the fi rst woman on “To address public dissatis- the Court of Appeals. “Her contributions to the faction with the legal profes- jurisprudence of New York sion, Chief Judge Kaye led the “A recitation of Judith Kaye’s while serving on the Court of movement to institute manda- accomplishments cannot con- Appeals for a quarter century tory continuing legal educa- vey to you her dedication, her have illumined and improved tion, to strengthen sanctions for enthusiasm, her warmth as a the law in a multitude of areas, frivolous litigation conduct and person or the warmth of the including the death penalty, the to adopt standards of civility respect and affection that law- right of the public and press to for lawyers, a subject, as we all yers and judges in New York attend judicial proceedings, the know, of paramount concern to have for her. When she asks right of children to a meaningful the College. your help in addressing one of high school education, the the myriad problems facing the attorney-client privilege and “Perhaps her most notable courts, it is simply impossible many, many more. For this body achievement has been the to say ‘no’ to her because her of decisional law alone, Chief creation of integrated problem- tireless commitment demands Judge Kaye has earned a seat in solving courts, overcoming so much more of her than she is the pantheon of the truly great the maze of jurisdictional asking of you.” judges of New York, alongside barriers and boundaries that Benjamin Nathan Cardozo and have long impeded, rather than The list of those honored with Chancellor James Kent. furthering, the administration the Gates Award in the past of justice. You will hear more includes former Harvard Law “But Chief Judge Kaye has about problem-solving courts School Dean Erwin Griswold done so much more than decide from Chief Judge Kaye and her and Associate Justice William cases and write opinions. vision for them. J. Brennan. She has literally transformed the administration of justice “When Judith Smith, as she Judge Kaye’s remarks are during her tenure. Example: then was, fi nished law school separately reported in this issue Automatic exemptions from in 1962, law fi rms were not of the Bulletin. jury service were available to exactly enthusiastic about every occupation with infl uence hiring women graduates. One in the legislature. They have fi rm [Sullivan & Cromwell] all been eliminated. The jury saw her potential. . . . Judith pool has been expanded. There left the fi rm a few years later to is an automated call-in system. marry and have three children, Jury rooms are well lit and but she returned to practice,

THE BULLETIN ! 25 bon mots It is unusual that you get the opportunity of introducing your successor. I have that privilege. You have heard earlier that there is a mandatory retirement age on our courts of 75, and I was approaching that rather rapidly in the fall of 2005. I was scheduled to retire in the normal course of things, on February the 20th of 2006, and felt I would give the nation a gift, so to speak. So I left on Christmas Day. My offi cial retirement date is December the 25th.

Now, taken by itself, that is not a bad story. The problem is, it isn’t true. What really hap- pened was that I was rather complacently letting the time drift away to February the 20th, 2006, when the Registrar told me in a casual conversation that she thought your provincial income tax was payable in your place of residence on December the 31st.

I have to say that when I heard that I could become a resident, and pay Alberta tax if I got there before December the 31st, I was dramatically inspired to get a driver’s license, I think, faster than almost anybody in Alberta’s history, so that by December the 31st, I was a resident of Alberta, no longer a member of the Supreme Court. And I hate to say, but the truth is, I was $12,000 richer, because that was the difference between Ontario and Alberta tax, the difference, you might say, between the free enterprise of the West and the rather subdued ap- proach of the East.

My concern after taking care of my own monetary problems was wondering how the Court could possibly cope with my absence. The answer was quick in coming by the appointment of Justice Rothstein.

Retired Canadian Supreme Court Justice Jack Major, Q.C., S.C.C., FACTL, Introducing Justice Rothstein

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

I did have a unique experience yesterday attending the Hockey Hall of Fame and having my photograph taken alongside the Stanley Cup. When you live in New York City, you never do get to stand alongside the Stanley Cup. . . .

I remember the fi rst advice I received 25 years ago when I became a judge of the Court of Ap- peals. Regrettably, I did not take the advice, but a good friend said, “Get your portrait painted right away.”

I am going to steal one of his [Canadian Chief Justice Brian Dickson’s] stories . . . . about an oral argument concerning statutory interpretation. About half way through the tedious recitation, the lawyer looked up from his notes and he asked, “Does Your Honor follow me?” “Yes, I follow you”, the judge replied, “but if I knew the way back, I would not proceed another step.” bon mots Chief Judge Judith Smith Kaye 26 ! THE BULLETIN CHIEF JUDGE KAYE accepts GATES AWARD

There follow excerpts from the remarks of New York Court of Appeals Chief Judge Judith Smith Kaye in accepting the College’s Samuel E. Gates Litigation Award.

Thank you to the College for these extraordinary days that I have been with all of you, beginning new friendships, renewing old friendships. . . . Thank you too for this just utterly amazing and wonderful award . . . .

LAWYERS AS CREATIVE THINKERS, STRATEGISTS, PROBLEM-SOLVERS

When I think of . . . all of you who make up this great organi- zation, I think not e-discovery or hearsay exceptions, endlessly fascinating as those subjects are. I think more of our professional skills . . . as creative thinkers and strategists and problem-solvers, dedicated to the advancement of justice throughout society.

In a sense, the luxury of having your attention this morning gives me the opportunity to focus on that essential aspect of our craft as well as to give just a brief personal accounting of the decades since I left the world of private commercial litiga- tion practice . . . for the New York State High Court, the past Judith Smith Kaye fi fteen of those years in the additional chief executive offi cer role as Chief Judge of the State of New York, truly, truly the role of a lifetime.

Remarkably, the other day in my chambers I ran across the 1986 autumn Bulletin of the College, carrying on its cover page the remarks of Canada’s then chief justice, the Right Honorable Chief Justice R.G. Brian Dickson, on the occasion of his own iLnduc-

THE BULLETIN ! 27 tion as an Honorary Fellow. That privileged to serve as a member of What a waste of lives. What a waste was the occasion of my own induc- a great common law court, fi tting of resources. Could our court in- tion into the College as well. He those values to breathtaking new pat- tervention perhaps help to stop the spoke of the close relationship be- terns. But whether the subject is the downward spiral of those lives? So, tween Canadian lawyers and judges venerable rule against perpetuities or yes, bedeviling for the Chief Judge and their American counterparts, as today’s brand new foreclosure laws, and for all of us, bedeviling, but also well as the importance of judicial as judges, we apply familiar tools challenging, energizing, and when independence, two enduring truths. of construction and interpretation, the mountain moves even a milli- . . . [In] his closing words, he said: trusting that the efforts of outstand- meter, satisfying beyond all descrip- “Membership in the American Col- ing counsel who come before the tion. . . . lege of Trial Lawyers is something court, combined with our own dili- that I will cherish all my life.” Well, gence and our own good sense, will COMMUNITY COURTS I feel just as he did. . . . yield a result that works well for the stare decisis future. Today in New York State we have I am going to get right to the heart of eight community courts, each nec- my message, and that is to give you, CHALLENGES OF essarily its own local product, but in a sense, an accounting of my Chief COURT ADMINISTRATION with the same core elements, begin- Judge life, centered on the problem- ning with a dedicated judge in the solving initiatives dedicated to the Many, many times the choices have leadership role of judicial decision- advancement of justice in today’s been truly anguishing. . . . But an- maker and convener of all collabo- world. guishing as my judicial dilemmas rators necessary to assure maximum often are, it is the demands of that information and the best opportu- Unquestionably, I am vastly changed second box of stationary, the chief nity for a truly meaningful resolu- from the person admitted into your executive offi cer role, Chief Judge of tion. Second, offenders after plead- ranks back in 1986, and, I think, the State of New York, that are con- ing guilty typically receive sentences pity anyone among us who is not sistently the most bedeviling. of community service designed to vastly changed from 1986. Our be- help restore the neighborhood that loved profession most surely has also It is not just the through-the-roof size has been harmed by the offence . . . changed dramatically to meet the de- of the dockets that our state courts . Those sentences are closely moni- mands of a vastly changed society. . . nationwide confront today . . . . It tored, and they are fully served. . [H]ow could that not be so, given is also the thousands upon thousands the scientifi c and technological and of repeat, low-level offenders in our Third is a recognition that these of- cultural advances of our shrinking courts, most often drug addicted, fenders most often are in need of and warming and fl attening world. corroding their own lives and the additional help, which is actually vitality of our neighborhoods. And made available through the court, Yet in our most fundamental core it is the thousands upon thousands including mental health referrals, values, we are unchanged: Zealous of domestic violence cases, too of- even job interview training and em- representation of the client within ten beginning with an assault and a ployment services. . . . [T]here are the bounds of the law, dedication to court-ordered issue of protection and many things in addition to the sta- the protection and the preservation ending with a murder-suicide. And tistics that tell us that they are, in of our nation’s fundamental ideals, it is the thousands upon thousands of fact, making a difference. It is the commitment to pro bono publico, the child neglect and abuse cases, foster neighborhood associations who ex- public good, public service in the in- care cases, juvenile delinquents with press their satisfaction, even their terest of equal opportunity and equal children of their own, generation praise, for the visible impact of the justice under law. upon generation of poverty, home- courts on their community. It is the lessness, mental illness, unemploy- graduates, many who speak with For the past quarter century in my ment and crime, graduating from our great emotion about the fact that adjudicative capacity, I have been family court to our criminal court. as a result of the court’s interven-

28 ! THE BULLETIN tion, for the fi rst time in their lives KIDS IN COURT on the law issue, but on the human they have obtained jobs. They have being, on the individual in limbo, credit cards. They have their own The Plan B world really does chal- an opportunity to make a genuine apartments. . . . lenge every fi ber of our being, ev- connection with someone who is ery skill, every ounce of ingenuity, concerned about them. It can be a For the Chief Judge, the very best whether the subject before the courts lawyer, it can be a judge, it can be a assurance that these courts are is insurance, or drug addicted of- family member, it can be a teacher, it indeed working are the words of fenders, or people in need of mental can be a case worker, it can be a men- the wonderful judges who for the health services, or domestic violence tor. That is the message I hear when past fi fteen years have presided over victims, or my next and fi nal ex- I visit community courts or attend them and see the difference they ample of things that keep the Chief drug treatment court graduation: can actually make in a person’s life. Judge of the State of New York up at “Somebody reached out. Somebody When they tell me, “This is what night, and that is kids: kids in court, showed an interest. Somebody be- I became a judge to do,” then my kids in the justice system, thousands lieved in me when I had stopped be- spirits really soar. of cases involving abuse and neglect lieving in myself.” and juvenile delinquency. . . . And DRUG COURTS here I think the issue is especially MAKING A DIFFERENCE relevant for all of us. Collaboration And that brings me to my second is essential to every problem-solving And that is where each and every problem-solving example, drug initiative, collaboration among the one of us truly can make a differ- courts, basically offering drug treat- justice system leaders, among the ence: We can be that person, we can ment as an alternative to incarcera- lawyers, the social service providers, be that connection. We can be a tion. . . . the community groups. resource for the courts. We can pro- mote civic education in the schools. Ideas, old or new, just have to be Indeed, the insight that drives all of We can inspire youth courts. We right for their time and for their the problem-solving courts is that, can fi nd ways to keep deserving kids place, and this one surely was, our while there are legal issues to be sure in school instead of keeping them in dockets overfl owing with cases in- that we must decide, these cases re- jail. We can contribute ideas. We volving lifetime drug addicts going peatedly coming back into the courts can contribute time. We can con- nowhere good, ready to acknowl- present frustrating social problems tribute services. Each one of us can edge that as human beings they that can be more effectively, more help make that critical difference. have touched rock bottom, ready constructively, more defi nitively re- to take the hand offered to them solved when we work on them to- And that, in a nutshell, has been a to climb out of their deadly down- gether. . . . In a Plan B world, plain- large part of my life, a large focus ward spiral. ly this requires the problem-solving of my attention these past decades, skills, the creativity, the ingenuity since my life so happily came to- Just weeks ago in an insurance case that mark and distinguish us in our gether with the American College of being argued in our court, counsel professional lives as counselors and Trial Lawyers. I treasure and I thank answered a question with an insight in our personal lives as well. you for our many, many past asso- that struck me as particularly apt. ciations. I thank you for this truly “In a Plan A world,” he said, “the This is the challenge that I leave with wonderful award, and for an excit- insured would of course have given all of you. . . . When it comes to in- ing future confronting, along with timely notice of the occurrence to terventions for children in the courts, you, the challenges of this great Plan the insurer. But we don’t live in a there is hardly a bad idea. . . . And B world of ours. Plan A world. We live in a Plan B maybe, maybe what is most critical world.” I must say, lately I have to the success of every one of these ef- Thank you. been thinking we actually live in a forts is that they provide an opportu- Plan C world. nity for single-minded focus, not just

THE BULLETIN ! 29 UNIQUE UTAH ORGANIZATION wins GUMPERT AWARD

“And Justice For All,” a unique collaboration of Utah’s three primary providers of legal aid, was the winner of the 2008 Emil Gumpert Award presented at Annual Meeting in Toronto.

Based in Salt Lake City, the goal of ‘And Justice for All’ is to develop a web-based, legal aid clinic program. Accepting the $50,000 grant from the College was Stewart Ralphs, executive director of the Legal Aid Society of Salt Lake.

“The very name of our organization, ‘And Justice For All,’ which is lifted from the fi nal phrase of the American Pledge of Allegiance, embodies the mission of the Emil Gumpert Award, and guides our activities on a daily basis,” Ralphs said. “I wish to express our deepest gratitude to the Emil Gumpert Award Committee, and the American College of Trial Lawyers for this very wonderful and prestigious hon- or. Thank you.”

Ralphs explained that the collaboration consisted of his organization, the Disability Law Center and Utah Legal Stewart Ralphs and President Mikel L. Stout Services. Legal Aid Society of Salt Lake represents victims of domestic violence and family law matters in Salt Lake

30 ! THE BULLETIN County with half the state’s He said the web-based clinics said. “We set aside 10 percent population. The Disability Law will enable clients to meet with of the campaign funds to grant Center provides advocacy and an attorney face-to-face via an awards to smaller organizations protection for the disabled internet connection located at that provide civil legal services. statewide. terminals in community action We are also thrilled and proud programs or co-locations. These to say that over 30 percent of Utah Legal Services provides are areas already familiar to low our Bar donate to ‘And Justice family law assistance outside of income clients. Much more For All.’ It is one of the highest Salt Lake County, and assistance than a telephone conversation, percentages of giving in the with housing, government ben- contact via the web-based United States.” efi ts, senior issues and migrant clinics will enable the advocate farm workers statewide. and client to interact verbally “And Justice For All” funds have and visually. enabled the organization to Ralphs said the three organiza- more than double the number tions will use the funds from Ralphs credited Alan Sullivan, of people served from just over the Gumpert Award to imple- a Utah Fellow, with being the 16,000 in 1998 to over 34,000 ment web-based clinics in eight key person behind the success clients last year. rural areas of the state. of the formation of the three- pronged organization in the “Finally, we hope that the “Currently, attorneys in our late 1990s when the three success of our web-based clinics agencies have to travel up to organizations decided to join will be replicated by other legal fi ve hours one way to meet with forces for fund-raising reasons. service providers that have clients in some of the remote similar challenges of access to areas of our state,” Ralphs said. “Alan has become the godfather rural areas in both the United of ‘And Justice For All,’ and States and Canada,” Ralphs “Of particular concern to me served as the chair of our said. are the victims of domestic fundraising campaign for the violence, who don’t have the fi rst three years,” Ralphs said. (The Emil Gumpert Award benefi t of counsel when they Also he said that more than 25 Committee seeks applications for need it most, when they start an percent of the College Fellows in the award on a continuing basis. action to get a protective order. Utah have served in leadership It looks to Fellows of the College Too often, they don’t include positions, either in “And Justice to suggest to it or to nominate the relevant information that For All” or one of the partner organizations that advance the is necessary to prevail in the agencies. administration of justice.) request to get a protective order, and sometimes, they even get “In our fi rst ten years of frustrated and abandon their operation, we have increased case, and go back to living fi nancial support from the with their abuser. That is legal community from less not anybody’s ideal of equal than $75,000 in 1998 to over justice.” $500,000 annually,” Ralphs

THE BULLETIN ! 31 TORONTO MAYOR welcomes FELLOWS

David Miller, lawyer and two-term Mayor, welcomed the College in Toronto. We found his inspiring description of how his city, to which many Fellows had no prior exposure, has created itself into one of the great cities of the Western Hemisphere to be well worth repeating as a case study, particularly for the bene t of those Fellows who could not attend.

“I would, “ Miller began, ” . . . like to . . . tell you a little bit about why we are so proud of our city, and what we are trying to do . . . to ensure the future success of Toronto. . . .

“[A]s you probably know . . . Toronto is Canada’s business cap- ital. Five of our six major banks are located in Toronto. Most of our major law ! rms have their head o" ces here, our ac- counting ! rms. We are a city that is also marked by an extraor- dinary sense of social justice, I think, because of our diversity. More than half of the people who live in Toronto . . . were not born in Canada, and it is the only city in the world that I know of in which more than half of the residents are ! rst-generation immigrants. Literally on the streets of Toronto, you will ! nd people speaking every major language in the world.

“As a result of that, it has become an extraordinary city of di- verse neighborhoods, interesting places to work, to walk, and to visit. We are also a city that values our green spaces and our David Miller environment. . . . We are a city . . . that is very proud of its contribution to arts and culture. We are a major ! lmmaking center in the world, and we have wonderful new arts facilities

32 ! THE BULLETIN like the new Four Seasons Centre tially as a result of that, we have is called Tower Renewal. In fact, for the Performing Arts . . . an op- the largest building boom in com- it is called Mayor’s Tower Renewal. era house that has the best sound mercial o% ce buildings in the last In Toronto, we have about 2,000 of any opera house in the world. twenty years . . . . So the $ rst high-rise buildings that were built It is an extraordinary place, and if principle of our agenda is that the in the 1960s and 1970s. # ey you have an opportunity to see a City government must be proac- are called concrete slab apartment performance there, you will never tive. It must work hard to ensure buildings. . . . # ey were built at forget it. the success of this city. a time that energy was cheap, and in Toronto they are mostly heated AGENDA FOR “# e second principle is called by electricity. PROSPERITY ‘World Toronto.’ We have to recog- nize that one of our great strengths “Concrete has no insulating power “Our goal at the City of Toronto is that we have the world here. whatsoever. And in Toronto, as is to build on those tremendous And in a world that is increasingly part of being a proactive govern- strengths, to ensure that the City interdependent, as we can see from ment, we are extremely concerned of Toronto takes its rightful place the di% cult economic issues be- to do everything we can to $ ght in the world. We have a strategy to ing faced in the United States and climate change, which is probably do that. It is called the ‘Agenda for around the world, Toronto has to the greatest threat that humanity Prosperity.’ I want to speak very think and act globally. has ever faced. So we have learned brie! y about that, because I think through academic research at the it will tell you a little bit more “# e third principle is ‘Creative University of Toronto that if we re- about Toronto in a di" erent way. Toronto,’ based on the fact that we clad those buildings on the outside, are one of the world’s major cen- we will be able to lower the energy “In partnership with business, ters of $ lm production, and the consumption in the Toronto area with labor, and with academic in- Toronto International Film Festi- by between 3 and 5 percent, which stitutions, we wrote this Agenda val has become the best $ lm festi- is an extraordinary contribution to for Prosperity. It is really an eco- val in the world, from the point of the $ ght against climate change. nomic development plan. In fact, view of business production. the business and labor community “# ose apartment buildings, how- wrote it for us. So we took a dif- “And the $ nal principle is called ever, are often located in neighbor- ferent approach. We didn’t say ‘One Toronto,’ and that stands for hoods in Toronto that are strug- ‘government knows best; we’re go- the proposition that we don’t cre- gling to $ nd decent jobs for the ing to tell you where the city needs ate wealth and prosperity in our residents. And as Canadians, we to go.’ We asked people, and they city for its own sake. We create it value social justice and inclusion. gave us advice. to ensure that every single Toronto And our principle of One Toronto resident has real opportunity and stands for the idea that you need “And our strategy is based on four real hope. to bring hope, opportunity and very simple principles: # e City employment to those neighbor- government has to be proactive, TOWER RENEWAL hoods. so recently, for example, for the PROJECT $ rst time in the history of Canada, “What the Tower Renewal project we’ve brought in tax incentives to “I would just like to speak to one will allow us to do, while doing the help incent the construction of project that we are doing that brings right thing for the environment, is commercial o% ce buildings. Par- all of these principles together. It L

THE BULLETIN ! 33 create good quality, high-wage jobs themselves and their families. We ment and what is best about our right in the neighborhoods where will also have the opportunity . . . city. We are being active, we are people are living who need hope to take . . . private green space and doing the right thing to meet an and opportunity the most. Many make some of it public space like important challenge, and at the of those neighborhoods are also parks, creating assets for neighbor- same time, we are creating jobs for neighborhoods in which newcom- hoods and communities that need those who need it the most. . . .” ers live. And newcomers who come them the most. to Canada and Toronto are full of “So,” he concluded, “when you energy; they are entrepreneurs, they “And I am mentioning that pro- walk the streets, and see the people are passionate; they want to succeed gram because . . . because we are of Toronto, who are active, who and have a chance for their families not just doing it in Toronto. We are happy, who have produced a to succeed. And as part of this proj- are doing it in partnership with city that is a vital and interesting ect, it will allow us to rezone around forty large cities around the world, place in which to live, you will the base of the apartment buildings called the C-40 group of cities, in have some understanding of how to allow immigrant entrepreneurs partnership with the Clinton Cli- it got that way.” commercial opportunities to cre- mate Initiative. It symbolizes to ate businesses and create jobs for me what is best about city govern-

My father was a trial lawyer in Belleville, Ontario, a town about two hours east of here, on the north shore of Lake Ontario, and I grew up hearing my dad’s stories about what he did for a living. I saw him in action a few times, and I was always impressed by his presence in the courtroom and his elo- quence. He used to tell me a few times, maybe with a touch of self-satisfac- “ tion, that trial lawyers were the last of the gunslingers. And that impressed me, too; I always had an image in my mind of trial lawyers as a Clint East- wood-type fi gure, staring down the competition, so when I was young, I wanted to be a trial lawyer like my dad.

But then, growing up, I heard all the lawyer jokes, over and over, and I have

to say, they affected me a little bit, and by the time I was in University, I thought the last thing the world needed was another lawyer like myself. So I hesitated to apply to law school. I went to grad school instead.

Then about four years ago, a good friend of mine, Andrew O’Bryan, who had just graduated law school and was articling at his dad’s fi rm, back at Belleville . . . encouraged me to write the LSATs, and I did. That gave me a “ new focus, and I haven’t looked back since then. I fi nd the law to be tremen- dously intellectually absorbing; I probably always will.

James Tausenfreund, Best Overall Oralist, Gale Cup Moot Court Competition

34 ! THE BULLETIN STUDENT WINNERS AT TORONTO MEETING

Winners of the National Moot Court Competition, Gale Cup Moot Competition, National Trial Competition and Sopinka Cup Competition were honored at the Annual Meeting in Toronto.

Chicago-Kent College of Law registered double wins—National Moot Court and National Trial Competition. In the National Moot Court contest, Chicago-Kent students Monika Rahman and Mikel L. Stout Joanna Brinkman, Lalania Gilkey-Johnson and Rachel Moran made up the winning team. Moran was chosen Best Speaker. In the National Trial Competition, Reya Kalput and Joshua Jones composed the winning team, with Jones named Best Oralist.

The Gale Cup winning team consisted of Paul Bryant, Sarah Glassman, Andrea Skinner and James Tausendfreund from the University of Ottawa, with Tausendfreund as Best Oralist.

The Sopinka Cup went to the team of Monika Rahman and Mareike Newhouse of McGill University of Montreal, with Rahman being named Best Oral Advocate.

THE BULLETIN ! 35 CANADIAN BAR PRESIDENT on the ROLE of LAWYERS

Guy Joubert, Atkins, MacAulay & Thorvaldson, LLP, Winnipeg, Manitoba, President of the Canadian Bar Association, greeted the College’s Toronto meeting. His remarks, like those of a number of other speakers, addressed to the role of lawyer, follow:

I fully understand that a litigator’s job is to advance the rights of his or her clients and to do so to the full- est extent of the law, up to and including a trial and appeals. Courtroom trials are obviously not always necessary, of course. In fact, we know that a great majority of cases actually settle out of court.

Settlements happen for many reasons. One side runs out of money, time or patience. A cause of action or a line of defense eventually shows itself to be without foundation. A pre-trial hearing makes it abundantly clear to one side or the other which way the wind is actually blowing. But  rst and foremost, settlements happen because lawyers encourage them.

There are many effective tools available to counsel, such as mediation. . . . It is an indispensible mecha- Guy Joubert nism for increasing access to justice, and oftentimes it is an appropriate way to resolve a dispute. But as you know, cases are not black and white. Litigators of-

36 ! THE BULLETIN ten work in grey areas, where their clients often end up re- The ACTL’s mission state- they assist clients to navigate jecting reasonable settlement ment clearly speaks to this. . towards a compromise. offers or accepting unfair . . The public in general, and ones. clients in particular, look to Seasoned counsel will always us for leadership in this re- say that their best cases are the Second, some clients do not gard. They want us to believe ones that are never argued, but approach the Court in good that their day in court means rather settled. Not every case faith, extirpe causa. They set something: a chance to tell merits the dignity and the ef- out to vex and be frivolous. their story, to be fairly and fort of a full judicial hearing, They pursue an agenda un- genuinely heard before an and we should not pretend related to the cause or to the impartial judge. . . . otherwise. But . . . there are case at hand. Their lawyers times when you simply must interpret their professional [T]hat is the justice that the go to Court. And when that duty to mean that they must public has the right to access. happens, we are duty-bound always give these clients max- That is the justice that we to ensure that litigation focus- imum assistance and zealous must work hard to guarantee. es on  nding the resolution advocacy. That is the duty of litigators that satis es the best interests who are also of cers of the of the parties. We can never I think we all agree that blind court. Trust is hard to earn allow litigation to be short- advocacy is not the role of and it can be easily lost. The changed for other causes or lawyers. While always hew- litigation bar has worked very interests. ing closely to our clients’ hard to engender its clients’ wishes, we cannot forget that trust and to establish its good Let me identify two potential society, too, has an interest in faith with the public at large. issues in this regard. First, our courts. They are not to be Maintaining this trust must some lawyers improperly used as a means to another always remain at the forefront help to prolong or discontin- end, because they are an end of all of our efforts and of all ue actions. We all know that into themselves: the dispen- of our priorities. the great majority of litigators sation of due justice. To assist . . . always put their clients’ a baseless or disingenuous I know that the Canadian Bar interests before their own. It claim or defense is truly to Association, and the Ameri- is a fundamental element of undermine the public con - can College of Trial Lawyers professionalism, the true un- dence in the system. take that duty seriously. It derpinning of our calling. is in that spirit of collegiality In each of these two scenari- and of shared professional- But some lawyers, albeit a mi- os, it is up to us, the leaders ism that I welcome you once nority, do not heed to this ba- of the bar, to denounce these again to Canada. sic tenet. Their advice often tactics whenever they mani- corresponds more closely to fest themselves. We must be their own ambitions or  nan- vigilant and ready to pub- cial goals, rather than those of licly defend professionalism, their clients. And as a result, and condemn its violation.

THE BULLETIN ! 37 PREMIER OF ONTARIO welcomes FELLOWS

Dalton J. P. McGuinty, Jr., a lawyer and  ve-term Premier of the Province of Ontario, welcomed the College to Toronto. Excerpts of his remarks follow:

Ce matin j’ai le grand plaisir en nom des treize millions d’Ontariennes et Ontariens de vous souhaîter la bienv- enue dans notre province.

Know that you are among friends here. . . . As a premier, leading a government informed and inspired by the rule of law, as a lawyer, and as someone who has had countless opportunities to meet trial lawyers, both in private prac- tice and in public service, I want to take this opportunity to thank you. ! ank you for upholding the highest stan- dards of our profession. ! ank you for pursuing your craft with passion and purpose and integrity.

! e pursuit of justice, the demands of practice, and life itself, can have a corrosive e" ect on our lawyers. ! ese Dalton McGuinty can rob you of your idealism, take from you your hope- fulness. But you have resisted the siren’s call of cynicism.

38 ! THE BULLETIN You continue to embrace the was the boast of Augustus that I leave you with this request: I ideals of the rule of law, and jus- he found Rome of brick, and ask that you continue to work to- tice for all. By remaining hope- left it of marble. But how much gether and to inspire each other, ful yourselves, you give us hope nobler will be a sovereign’s boast that you uphold the standards of that in the face of injustice you when he shall have it to say that excellence that you cherish, that will win for us justice. he found law a sealed book, and you be fair and wise, compas- left it a living letter, found it the sionate and true with the people In preparing these remarks . . . patrimony of the rich, and left you serve, and that you always, I came across this lovely quo- it the inheritance of the poor, always, be courageous in your tation from Henry Brougham, found it the two-edged sword pursuit of justice. a politician, lawyer, and Lord of craft and oppression, and left Chancellor of Great Britain in it the staff of honesty and the the 1830s. He once said: “It shield of innocence.”. . .

You will hear no lawyer jokes from me. I have heard them all, mostly from my moth- er. Four of her sons are lawyers. And that was never part of her grand plan. You see, we were all meant to care for her. In my mom’s eyes . . . I was to be the doctor. Dylan was to be the dentist, Michael, the physiotherapist, and David, to care for her eternal soul, the priest. These days, my mom says to me, “At my age, I could use a doctor. What am I going to do with a premier?” bon mot Dalton J. P. McGuinty, Jr.

The following message was sent by Fellow Robert J. Beckham of the Jacksonville, Florida offi ce of Holland & Knight to every litigation attorney in his fi rm’s nationwide offi ces:

“The Summer issue of The Bulletin, published by the American College of Trial Lawyers, contains a riveting résumé of the award presented to (and the remarks delivered by) Judge George W. Greer, the judge who presided over the interminable and tumultuous proceedings in the Terri Schiavo case. Copies of those two articles are attached. These should be read by any lawyer who is interested in either judicial integrity or judicial independence, as well as by lawyers who wish to read a stirring tribute to the best of our profession!”

THE BULLETIN ! 39 ONTARIO CHIEF JUSTICE ADDRESSES COLLEGE ON THE ROLE of a CIVIL LEGAL SYSTEM

The address of Chief Justice Warren K. Winkler, Court of Appeals of Ontario, to the Annual Meeting of the American College of Trial Lawyers on September 26, 2008 in Toronto emphasized that what to lawyers and judges are legal problems are to litigants life problems and that a justice system must focus on service to them.

I begin . . . by observing that virtually every day ordinary people among us encounter problems in their lives which make it necessary for them to come to the legal system for assistance. For example, a teenager is seriously injured in a hockey game, and her parents need money to build her a wheelchair ramp at home. A couple’s marriage breaks down. They need to manage con icts about how to raise their children. A seller promises that a house has a brand new roof, and the buyer needs to  x the unex- plained leaks.

LEGAL PROBLEMS SEEN AS LIFE PROBLEMS

Only a lawyer would think that these are legal prob- lems. For everybody else, even us when we are not Warren Winkler wearing our lawyer/judge hat, these are life prob-

40 ! THE BULLETIN lems. A good justice system are forced to represent them- and should resolve con icts can help people with their life selves in important legal pro- fairly, affordably and quickly problems. A justice system ceedings has ballooned in the through a court process. But that loses sight of the people last ten years. Many people, how do we promote these it is supposed to serve and fo- for whom the justice system real goals in practice? cuses instead on itself and its is not accessible do not pur- own process is not worthy of sue their rights at all or they CANADIAN the name. abandon their cases partway INNOVATIONS through when their money My point is simply this, that runs out. In searching for ways to do our courts serve the pub- things better, I suggest that lic. The civil justice system As you well know, this is one we begin by looking at our meets the needs of most peo- of the main causes of the van- successes. What have we ple more or less effectively. ishing trial. I congratulate done right in the past? What, Unfortunately, though, for a the College on its leadership in our existing system, can we growing number of people, in addressing this very seri- build upon? In Ontario, over the civil justice system is be- ous concern . . . . Indeed, I sixty percent of the civil law- coming less and less accessi- have written an article myself suits proceed under simpli- ble. They are  nding that the on this problem, the problem  ed procedure rules. These system is too expensive and of the vanishing trial, that provide faster, less expensive it is too slow to provide them was published in the most re- mechanisms for getting cases with any real help. cent edition of The Advocates’ to trial. Journal. I don’t want to suggest for a Advances have also been minute that our civil justice Everyone favors access to jus- achieved for plaintiffs through system is a failure. There is no tice. The phrase has become a the increased availability of shortage of critics who speak mantra with judges, govern- contingency fees and class of nothing besides its failings. ment of cials and bar associ- actions. What can we learn When they do, they distort, ations. But like so many oth- from these apparent success- they oversimplify. They fail er words or expressions, the es? Are there any overarch- to appreciate the justice sys- phrase has become so com- ing principles we can apply tem’s enormous complexity monplace that the urgency more widely across the entire and its successes. of its meaning has tended to spectrum of civil cases. From become blunted or worn. We the successes we have had, COST AND DELAY cannot allow access to justice I suggest that the common to become a cliché, devoid of threads are proportionality I return again to the somber meaning and of signi cance. and professionalism. fact that our justice system fails to be accessible to many Access to justice undoubted- PROPORTIONALITY and that pressures on the ly means different things to system continue to mount. different people. But for me, Proportionality is a term al- The number of people who it simply connotes the laud- most as popular as the phrase cannot afford a lawyer and able notion that people can L

THE BULLETIN ! 41 “access to justice.” Common- Therefore, while I heartily how a case is going. They ly, proportionality in the civil endorse a proportionate ap- importantly have enough ex- litigation context is under- proach to litigation, I hope perience and self-con dence stood to simply re ect that that others share my view to concede losing arguments time and expense devoted to that the justice system must and to focus on the winner. a proceeding ought to be pro- always be about much more portionate, that is, relative, to than just dollars and cents. Expert lawyering includes what is at stake. Can anyone bringing critical judgment to doubt the logic that a law- PROFESSIONALISM bear and giving clear and can- suit should be planned and IN AN ADVERSARIAL did advice about settlement carried out in a manner that SYSTEM options early on, before lim- re ects the monetary value, ited resources are eaten up by the complexity, and the im- Regardless of how we mea- unproductive litigation steps. portance of the dispute? I sure proportionality, there is Not every case is winnable. should think that there exists also the question of what can Lawyers need to explain re- a strong consensus within the be done to promote it. The un- alistically, at the outset, about legal community, the users of fortunate truth is that the ad- the prospects of a case. the system, and all of us, that versarial process, if it is left to proportional litigation is piv- itself, often discourages pro- I am, of course, in no way otal to ensuring true access to portionality. There is always suggesting that lawyers justice. one more issue to be raised should not be imaginative or one more expert who can about novel cases or strategic I would, however, like to add be consulted in an attempt to about how to settle hopeless another factor that I believe vanquish the other party. losers. But they need to rec- should be considered by prac- ognize the difference at the titioners as they plan and seek Often, the most effective outset and give clear legal instructions on the dimen- cross-examinations and the advice before needless litiga- sions of a lawsuit. Lawyers most persuasive legal submis- tion steps have been taken must also assess the social sions are the most straightfor- and billed to the client. This impact of the case. For exam- ward ones. I have seen some is a question, I think, of pro- ple, the issues which arise in lawyers accomplish more in fessional training and expe- a family breakdown or by the two hours of examination rience. Bottom line, this is at loss of an employee’s liveli- for discovery, Canadian term the core legal ethics. hood, have tangible effects of for depositions, than some great importance, even if the other lawyers accomplish in THE ROLE OF dollar amounts in those cases weeks. The lawyers who get THE COURTS may be modest. It is neces- to the point are the ones who sary to specify and identify have the expertise and who At the same time, judges who and balance the social and know what works and what get to the point are the ones personal impact of the issues doesn’t work. They don’t let who provide the cues and along with the other criteria their clients take charge of guidance which are required that govern any analysis of the case. They listen and act to keep counsel and parties proportionality. on cues from the bench about focused on the real trial issues

42 ! THE BULLETIN and, at the same time, keep a proportionately and profes- THE OBLIGATION OF truly open mind. The Court’s sionally, the role of the court LAWYERS rules and procedures can and in managing cases should be must be modi ed to encour- focused on case management We must not overlook the age proportionality, but it is when necessary, but not nec- inability to access the justice the legal profession which essarily case management. system, culminating in a fair must ultimately address the trial. To do so is a fundamental problem of disproportionate Highly complex cases or denial of justice. We have litigation. Lawyers must be cases which have gone off- a professional responsibility, better prepared to do what side are good examples of the regardless of our speci c areas they are trained and paid to types of cases which require of practice, to ensure that do, that is to provide thought- greater amounts of legal and all members of our society ful, timely, dispassionate and judicial resources. But many can seek and obtain justice indeed proportionate legal cases just need to be heard within the legal system. With advice to their clients. and disposed of. The ex- inaction, we risk losing the amples of Ontario reforms foundation upon which our Over the years, there has to which I referred, access to justice system is grounded, . been a movement toward in- simpli ed rules,  exible case . . the rule of law. creased intervention by the management, contingency courts to assist. . . the word fees and class proceedings The Fellows of the College is “case manage” . . . in the are tangible examples of suc- have an extraordinary re- progress of individual law- cessful reforms from within sponsibility. It is a cadre suits, whether or not they re- our system. of skilled trial lawyers that quire the court’s  rm hand. stands between us as citizens However, in my opinion, These were guided, and in- and anarchy. By committing while judges may know more deed crafted, to further the ourselves to the values of about the system than the cli- principles of proportionate proportionality and profes- ents do, counsel invariably litigation and professional- sionalism we can truly say have a more detailed and nu- ism. Each was designed to that we are privileged to be anced understanding about simplify procedures, reduce part of a vibrant civil justice the facts, the issues, and the litigation steps, ensure le- system. personalities that are driv- gal leadership from the Bar, ing each individual lawsuit. achieve dispute resolution Thank you so much for hav- Courts are not institutionally and provide affordable litiga- ing me here this morning, equipped to micromanage tion and legal services to cli- and inviting me to share these every lawsuit in the system. ents. These initiatives sought thoughts with you. We do a disservice to all in- and succeeded in vastly im- volved when we try to do proving the way some con- that. We need to trust law-  icts are resolved for Ontar- yers to do their jobs. When ians with real-life problems. we have judges controlling They have squarely confront- the courtroom, and lawyers ed the phenomenon of the moving the cases forward vanishing trial.

THE BULLETIN ! 43 bonHe has two daughters, mots and two wonderful grandchildren, one of whom, when learning of his new role of Chief Justice, suggested, “Grandpa, you really have to learn to be more patient.” Having appeared before the Chief Justice, from her mouth to God’s ear.

Justice Winkler was born and raised in Pincher Creek, Alberta, a small town in south- western Alberta, about an hour’s drive from the Montana border, current population about 3,600. . . . Interestingly, that small town has also produced our current Chief Justice of Canada, Beverley McLachlin, and also a former Chief Justice of Alberta, Val Milvain. I had occasion to visit Pincher Creek last year, and, at the Chief Justice’s sugges- tion, drank a lot of the water, hoping I might catch whatever is there. It hasn’t worked.

To understand the Chief Justice, the person, you need only listen to what he has said about his formative years in Pincher Creek, and I paraphrase here: “Growing up in a small town teaches you how people can overcome their differences, settle their disputes, and get along. Why? They have no choice. There is nowhere to hide.”

The Chief Justice is well known for his stories about his dogs. . . . One of his early dogs was named Pete, who he talks about having taken with him to settle a labor dispute, a very hot labor dispute. Walked into the room with Pete at his side. All of a sudden, all the angry truckers were petting Pete, and the dispute resolved about an hour later.

More recently, he has talked about his dogs Maggie and Gretzky. Indeed, every time you heard the Chief Justice speak, prior to his appointment as Chief Justice, there was in every mediation, in every hearing. . . always a story about Maggie and Gretzky. Since he has been elevated to the position of Chief Justice, many have noticed that perhaps he is a little more serious in his addresses, and we don’t hear as much about the dogs. Indeed, someone in the Chief Justice’s offi ce has reported that there was a phone call recently. Someone had attended a couple of the Chief Justice’s recent presentations, and called, and the conversation went something like this: “I really don’t mean to bother you, but can I just ask a question?” “Yes,” said the assistant. “Well, I just wanted to ask: I have heard the Chief Justice speak, and he hasn’t mentioned his dogs. Are they doing okay?”

Fellow Jeffrey Leon, Toronto, introducing Ontario Court of Appeals Chief Justice Warren K. Winkler

44 ! THE BULLETIN I would be remiss, were I not to give you a current update on Maggie and Gretzky, two Black Labradors . . . . Maggie is well. Gretzky is now 14 years old, and showing his age. We are both on the same meds, he on half dose, me on the full wham. . . .

A second word about Emily, my six-year-old granddaughter. Emily, of course, is the one who gives me instructions about how to conduct myself. This summer, she was resident at the farm where until recently I have raised purebred Hereford cattle and Appaloosa horses and Labrador dogs. Emily likes to ride around in my yellow pickup truck with me and take in the scenery and give me a play-by-play version of pretty well everything that is happening.

This summer, it was hot here, and we had the mishap, while driving in the truck, just the two of us, of blowing out the heater hose. And so the truck overheated. We had to stop, we had to be towed back. We had to get a ride; we had to phone from the neighboring farm. All of this was very traumatic for Emily. bon mots And so when we were home and settled in, the truck had been taken to the garage, I heard Emily in the kitchen, saying to her grandmother, she said, “Grandma, Grandpa shouldn’t be allowed to drive anymore. He ruined the truck. His driving is terrible. He shouldn’t be al- lowed to drive anymore. He should be grounded.”

And Grandma said, “Well, Emily, it wasn’t his fault the heater hose. The truck is a 1981. The heater hose is old. It wore out”. And she said, “Grandma, the truck cab fi lled up with steam. The heater blew out, the whole truck cab fi lled up with steam. There were water dripples dripping off the windshield. The entire truck cab was fi lled with humility.” . . . . If Ontario were a U.S. state, it would rank second in size, after Alaska. . . . Now, there are some who have said recently here that we should merge with the United States, the argument being that we might put forward a candidate for vice-president. . . . . Less than two percent of the appeals from this court are heard by the Supreme Court of Canada. As the well-known country singer says, across the border, “We all have a right to be wrong now and then.”

Chief Judge Winkler responding

bon mots THE BULLETIN ! 45 QUEBEC CHIEF JUSTICE describes EXPANDED ROLE OF CANADIAN COURT SYSTEM

The Honourable J. J. Michel Robert, Chief Justice of Quebec, addressed the Toronto meet- ing, describing particularly for the visiting Fellows from the United States, the system of Provincial and Federal courts created in Canada from the time of its independence in 1867.

A Fellow of the College before his ascension to the bench, Robert had served as President of the Liberal Party of Canada.

After describing how the Canadian courts function in a multicultural, multiethnic, multilinguistic, and multi- religious nation, he observed:

“[W]e . . . see an extension . . . of the role of the courts and judges, who now have to decide socioeconomic questions Lynne D. Kassie, J.J. Michel Robert and President Mikel L. Stout involving the determination of common Canadian values. Social cohesion and peaceful relationships within the community become questions which are raised in legal proceedings before our courts almost every day.

“At the same time, we live through the globalization of the economy, whereby commercial and fi nancial transactions know

46 ! THE BULLETIN no frontiers and boundaries, espe- “There are many consequences to “I think we North Americans . . . cially between Canada and United these new trends in the law prac- have a message to bring to the world States. The law systems which are tice and the resolutions of confl icts, in trying to integrate all those dif- naturally domestic and national including some affecting the ways ferent people coming from all those are not always well-adapted to this and the means by which courts and countries. I think we have to bring new environment. Jurisdictions of other institutions will be called to a message of tolerance, a message of domestic courts, in my view, have resolve confl icts. fl exibility, a message of integration, to be revised, and a more interna- a message of accommodation, but tional approach has to be adopted. “We don’t have time this morning also at the same time maintaining to review all those consequences, our fundamental values: the rule of “If you add to these phenomena except one, . . . and this is the need law, independence of the judiciary, the communication revolution, for a much greater level of exchange impartiality of judges, equality of whereby the fl ow of information is and cooperation between lawyers the individuals, and the respect of becoming instantaneous and plan- and judges of different countries, of the dignity of the person.” et-wide, the law practice in 2008 is course, in America, between Cana- very, very different from the one I da, Mexico and United States, but experienced in 1962. also on other continents, including Europe, Asia, and Africa.

MEET YOUR NEW SECRETARY: THOMAS H. TONGUE

Tom Tongue of Portland, Oregon, who was elected Secretary of the College at the Annual Meeting last fall in Toronto, is only the second offi cer of the organization to be from Oregon. William H. Morrison, also from Portland, served as president in 1972-73. “He (Morrison) would be smiling now to know that the young lawyer he mentored is working to further his beloved College,” Tongue said. “It is a high honor to be elected an offi cer of the College. I look forward to the opportunity to participate fully in the College’s efforts to maintain and improve the administration of justice and in particular its efforts to preserve the place of trial by jury in our system.” Tongue, a fourth generation lawyer, is a partner at Dunn Thomas Tongue Carney Allen Higgins & Tongue in Portland. He was inducted into the College in 1993 and served as state chair and Regent. The winner of numerous legal professional awards, he is a 1965 graduate of the University of Oregon and received his J.D. in 1968 from the University of Wisconsin.

THE BULLETIN ! 47 FIGHTING: HOCKEY’S VERSION of ALTERNATIVE DISPUTE RESOLUTION

* * * * * * SHOULD VIOLENCE IN PROFESSIONAL HOCKEY BE CONDONED?

A debate on the issue whether violence (i.e. fi ghting) should be condoned in professional ice hockey provided the comic relief at the Friday morning program at the Toronto meeting. Whistle-toting past president David W. Scott, Q.C. of Ottawa, resplendent in garb that vaguely resembled that of a hockey referee, turned in a performance as moderator that would have made Walter Mitty turn green with envy. The debaters, none of whom escaped totally unscathed from Scott’s introductions, were:

FOR THE AFFIRMATIVE: FOR THE NEGATIVE: CLOSING OVERVIEW:

Brian Burke, Harvard Law gradu- Damien Cox, nationally recog- J. P. Barry, former counsel to the ate, a former player and general nized hockey journalist, a frequent National Hockey League Players’ manager of the Anaheim Ducks, broadcaster on ESPN TV, a radio Association, managing director of winner of the 2007 Stanley Cup, host on Prime Time Sports and the Creative Artists’ Agency and the who was for fi ve years in the 1990s author of two books on hockey. top player agent in the NHL. chief disciplinarian of the National Edward L. “Eddie” Greenspan, Hockey League. Q.C., FACTL, senior partner Alan J. Lenczner, Q.C., FACTL, in the Toronto fi rm Greenspan senior partner in the Toronto fi rm Partners, introduced by Scott as Lenczner Slaght, introduced by the Canada’s leading criminal trial fawning referee Scott as Canada’s lawyer. leading civil trial lawyer.

48 ! THE BULLETIN THE DEBATE the greatest guys in the world, and get up in front of you if we were they play the greatest sport in the talking about gang violence, and FOR: Opening, Brian Burke world.” want to talk about law and order made the point that fi ghting, in our streets, and, ‘By goodness, while heavily penalized, has been a AGAINST: In rebuttal, Damien we can’t have vigilante justice.’” traditional part of the professional Cox began, “[A]ny of those who are game. Hockey is the only sport in here today who are not Canadian are “I would agree with Brian on a which fi ghting does not result in probably fascinated by this, how we couple of things, and one is that ejection from the game. Conced- can sit and discuss these things ad hockey is, by nature, a violent ing that he had the more diffi cult nauseam about our sport of hockey sport, and the contact in the game side of the argument (“Damien that we love so much. Probably the is a huge and tremendous part is going to get up here . . .and he fact that our Chief Justice Winkler of it. . . . [T]he guys who fi ght will have a teddy bear up here with has a dog named ‘Gretzky’ tells you don’t play with the stars, generally him, and he will talk about how something about our country. The speaking, and mostly, they fi ght everyone should sing Kumbaya”), fact that our Prime Minister is actu- each other, usually to legitimize he argued that fi ghting is not as ally writing a book on hockey tells their position in a very, very well- prevalent as observers suppose you something about our country. paid job.” and that the code of the sport is We are a little nuts about this stuff, that skilled players are protected. and we get a little nuts about prob- “So why am I against this stuff? . . . On the other hand, he pointed ably no other topic than fi ghting in Generally speaking, hockey fi ghts out that some very skilled players the game.” are boring . . . . I don’t know why also have a record of fi ghting. He people who are so into it don’t go explained that North American “[Brian] talked about the very se- watch mixed martial arts or any- hockey is played on a smaller rink vere penalties of the game for fi ght- thing. . . . What I do care about is than in the rest of the world (his ing. Not very severe at all, actually: the rest of the game.” apparent point being that there are go sit down for fi ve minutes, come fewer places on the rink to hide). back, get in another fi ght if you Expressing concern for the young need to. That is generally what is people who give up the sport be- He also suggested that if NASCAR done. The fact that it is a tradi- cause of the violence resulting wanted to avoid fatalities, it could tion, I think, is basically untrue. from mimicking the professional limit race cars to 55 miles per hour, . . . [W]hile Brian will have you game, he said in closing: “The noting that nobody would watch believe that it has been reduced greatest games ever played gener- the race. and hardly ever happens anymore, ally had no fi ghts in them. The the fact is, fi ghting in the National game is better than that, and it has In closing, he argued: “People go Hockey League was up 33 percent been proven many times . . . in to professional sports to watch last year.” the greatest hockey ever played, by guys do things they cannot do . . . . the greatest players ever to play the This is a contact sport, fi ghting has “[E]ven though I was involved in game.” always been allowed, though heav- a few scraps when I was younger, ily penalized, and it actually regu- I have sort of gradually come to FOR: Alan Lenczner, taking the lates the more dangerous conduct detest what I see as the wanton analytical approach of an experi- that takes place in the game. . . . and moronic violence that I think enced civil trial lawyer, opened by [L]et’s not let the debate obscure has really, sadly, deep roots in our observing he had attracted the best one thing: These are the great- game. And I fi nd it condoned of- audience for his argument that he est athletes in the world, they are ten by the same people who would L

THE BULLETIN ! 49 could have hoped for, an audience Europe. We revere our fi ghters. . Bells.’ The result? The lackluster of mostly people from the United . . So for tradition, nationhood, players on the bench wake up, the States, whose right to bear mur- and entertainment, fi ghting in home team rebounds and wins.” der weapons is enshrined in their hockey is to be preserved.” Constitution. Thus, he argued: “Momentum changer. Crowd “[M]y task is really quite simple. I “Two, serious scientifi c study has pleaser, and make no mistake, need only persuade our Canadian proven that enforcers enhance fans love hockey fi ghts. Google Fellows, most of whom, as young the performance of skill players. the words ‘hockey fi ght’ when you men, played aggressive hockey, but Wayne Gretzky, Bobby Orr, Ma- get home tonight, and you will get who have morphed into pinstripe rio Lemieux, Frank Mahovlich, all more than 18,000,000 hits. . . . . socialists and elitists, to remember had space to operate because their Have you ever seen a fan leave a the past, when they were cocks of line-mates warned opponents ver- rink because a fi ght is taking place? the walk and strutted their stuff.” bally not to cheap-shot the stars, Have you ever heard of someone not to spear, trip, jab. And if that giving up their season tickets be- wasn’t suffi cient, the enforcer in- cause of too much fi ghting? I rest “Let us not forget,” he continued, timidated the opponent by drop- my case.” ”Hockey is entertainment. . . . ping his gloves, and giving the [H]ockey fans pulsate whenever a ‘let’s go’ signal. It is funny how the Lenczner then launched into a fair fi ght or a bone-crunching body threat of being punched in the face dissertation on the intersection of check occurs. And I draw a bright repeatedly can change someone’s hockey and the criminal law, ob- distinction between fair fi ghting thought process.” serving “The application of crimi- on the one hand, and unprovoked, nal law and its handmaiden, the premeditated attack on the other. “Three, a momentum changer courts of justice, have no place in Let me give you three reasons why and a crowd-pleaser. In an over- the game of hockey.” He went on hockey needs fair fi ghts: 80-game season, a team will often to quote snippets from Canadian come up fl at at home for a period jurisprudence: “Tradition, the fi rst one. For over or more. The players lack en- 100 years, men have squared off thusiasm, the crowd is bored and “It is clear that in agreeing to play on a hockey rink. Millennia be- restless. They have paid, on aver- the game, a hockey player consents fore that, gladiators met at the age, over $100 a seat. The coach to some form of intentional body Coliseum, spectators cheered, and can’t ream out his whole team on contact, and at the risk of injury death ensued. A hockey fi ght to- the bench in full view of the tele- therefrom.” day rarely results in an injury, and vision cameras. He cannot, like at worst, a few stitches, a broken in football, change quarterbacks. “Patently, when one engages in nose. Traditions must not be aban- But he can send out a tough guy a hockey game, one accepts that doned. Canada makes an impact . . . who will pick a fi ght, drop his some assaults, which would oth- in the world because it has domi- gloves, and square off. The crowd erwise be criminal, will occur, and nated hockey. Without that hock- is electrifi ed by this burst of ener- consents to such assaults.” ey domination, Canada’s image gy. Other players drop their gloves [On implied consent] “That which would be on a par with Denmark and square off. Fighting breaks is inherent to, and incidental to the or Sweden, nations that go along out all over the ice. The noise level game of hockey, with body con- to get along. Our national pride rises dramatically, often accompa- tact, boarding, and maybe even a rests on one activity alone: hockey. nied by music over the public an- fi ght, if it is two players consenting We invented the game, we export- nouncement system, such as ‘Hit to the fi ght.” ed the game to the U.S.A. and to Me With Your Best Shot’ or ‘Hell’s

50 ! THE BULLETIN “Players are deemed to consent to about. I have taken my grand- Both fi ghters use one hand to grab an application of force that is in daughter to the Ice Capades, and the other guy’s jersey, then they breach of the rules of the game, the Fairy Ice Princess throws a pull each other around in a circle, if it is the sort of thing that may pretty good punch. We all know trying to land a punch, before they be expected to happen during the the great Rodney Dangerfi eld line both fall to the ground and the refs game.” about how he went to a fi ght and a pull them apart.” hockey game broke out.” “None of these criteria,” he con- “Remember Gordie Howe? A hat- tinued, “lend themselves to easy “When I go to a hockey game, do trick for him was a goal, an assist, application. And when one fac- you know what I like to see break and a fi ght. And in those days, it tors reasonable doubt on top, no out? I like to see a hockey game had its place. For one, the goons judge or jury can make a fair de- break out. Hockey needs more back then could play the game. I termination. . . . To me, the hhave a former client, Dino Cic- best instrument to govern con- ccarelli, who logged more than duct is the rule book, not the 1,400 minutes in the penalty criminal law. The rule book bbox. In total, he was just 15 encompasses the proper bal- mminutes short of having spent ance between what the own- a full 24 hours in the penalty ers want to permit to derive bbox in his career, but he also maximum revenue, and what ccould put the puck in the net, hockey players will endure. . wwhich he did more than 600 . . The rule book represents ttimes. . . . By comparison, last the proper balance of accept- year, Jared Boll led the league able conduct established by wwith 27 fi ghts, fi nished the the participants of the game, year with fi ve goals, fi ve as- hockey players and spectators. ssists, 226 penalty minutes.” Legislators and their serfs, prosecutors, so-called guard- “So what has changed? In a ians of societal values, should wword, helmets. Helmets be- have no role in the game of ccame mandatory in hockey hockey.” ffor players entering the league, good hockey, not more fi ghting. beginning in 1979. And with the AGAINST: Eddie Greenspan Hockey fi ghts are like commercial grandfather clause, that meant began by saying: “It has always interruptions. They are boring, many players were still helmetless been my experience that any de- useless, repetitive wastes of time, into the early ‘90s. By the time bater who begins with a statistic is and have no place in the game. Craig MacTavish, the last man to bound to lose, and I don’t plan to What is so appealing about it? play without a helmet, retired in lose. . . . By the age of 18, the What is so important or interesting 1997 there was no longer any point average American has witnessed about seeing two unskilled goons to fi ghting in the NHL. You just 200,000 acts of violence on televi- covered in protective gear, includ- can’t land a punch anymore. It is sion. Most of them occurred dur- ing helmets, see who can hurt their like the Michelin Man fi ghting the ing Game 1 of the NHL Playoffs. hand the most by punching the Pillsbury Doughboy. No one can People say that hockey without other guy’s hard plastic helmet? get hurt, so what is the point?” fi ghting is like the Ice Capades. I That is real exciting. Every fi ght don’t know what they are talking is the same predictable routine. L

THE BULLETIN ! 51 Countering Lenczner’s legal argu- poker get better ratings than the its historical perspective: “To pre- ment, Greenspan quoted his own NHL playoffs, the game is in need dict the future, I think we should authority: of help. You grow the game by get- look to the past. History tells us ting kids into it, and if parents think that the very fi rst hockey game “No athlete should be presumed to hockey is a dangerous or needlessly took place in McGill University in accept malicious, unprovoked, or violent game, they are not going to Montreal in 1875. According to overly violent attacks.” put them into hockey. . . .” legend, immediately after the fi rst goal was scored by a Mr. LeBlanc, “No sports league, no matter how Greenspan ended by saying: “I he was knocked to the ice by a well organized or self-policed it don’t even know why I am tak- Mr. McGee, and fi sticuffs ensued. may be, should thereby render the ing this position, other than I was This marked the fl ashpoint of two players in that league immune qquintessentially Canadian de- from criminal prosecutions.” bbates: The French-English de- bbate, and more importantly, “To engage in a game of hockey tthe debate over fi ghting.” is not to enter a forum in which the criminal law does not ex- “For about 100 years after the tend. To hold otherwise would fi rst modern game, the great be to create the hockey arena fi ghting debate was a pretty a sanctuary for unbridled vio- ttame debate. The general lence, in which the law of Par- ssentiment was that . . . fi ght- liament and the Queen’s justice iing was necessary, and in or- could not apply.” dder to keep violence out of tthe game, you needed fi ght- “Sports have a social utility. iing. The debate on violence Some leniency is allowed. A iin hockey can fi nd its modern hockey game may be socially oorigin . . . when a team full of useful, but any assault is not, iintimidating enforcers pushed and public acceptance of vio- ttheir way all the way to back- lence is no justifi cation for its tto-back Stanley Cups in 1974 continuance.” asked to. Hockey players are pretty and 1975. . . . The style of hockey well paid these days, and they make that the Flyers utilized did affect “This debate isn’t really about for good clients. If you take fi ght- amateur hockey, and resulted in whether there should or should not ing out of hockey, my court list will multiple commissions and reports be fi ghting in hockey. What it re- be reduced. And so personally, I on violence. . . . [A] quote from ally is about is how to save hockey. am really for violence in hockey. . the Pascall report on hockey vio- We all know hockey has always . . But that is what lawyers are lence . . . sums up the concerns been the redheaded stepchild of the supposed to do: take a position and that have existed: ‘Hockey has sports world, and hockey fans are argue it. I apologize for taking a created a culture where certain always defending their game, trying legal position, but call me old-fash- violent acts that are punishable if to convince people it is not soccer ioned.” they occurred on the streets are on ice. But when NASCAR, cars part of the game when occurring driving in circles 200 times, is more OVERVIEW: J. P. Barry, closed on the ice.’ There is no doubt that popular than hockey, the game is in the debate by placing hockey in amateur hockey has taken a differ- need of help. When bowling and

52 ! THE BULLETIN ent direction. Sweeping changes have resulted in bans on fi ghting and head shots. Pro hockey has taken its own course, and fi ghting bon mots and head shots are still part of the We are here to debate alternative dispute resolution, as we call it game.” in hockey . . . fi ghting, while heavily penalized, is a traditional part of our game. . . . I had a great challenge, knowing how to “There is an increasing sentiment explain [fi ghting in ice hockey] to people who have maybe never that those of us inside the game of been on skates, and maybe never played our game . . . . It is like hockey have lost touch with the me trying to explain why goose hunting is fun to my wife. She mainstream. . . . It is clear that said, “Let me get this straight. You get up at 4 o’clock, you dig a our insider’s view is a lot different hole, you sit and you freeze you’re a-- off all morning, and maybe than the mainstream. And the fact you kill a couple of birds. Yes, sign me up”. is, fi ghting has changed a lot over the years. . . . Fighting is, quite Brian Burke, General Manager, Anaheim Ducks simply, actually not a big issue amongst NHL players. The big- * * * * * * * * * * gest issue by far, for NHL players, is head shots. Hockey is a very fast game, and illegal head shots are of- Well, I have attracted the best audience that I could hope for for ten part of the game. The league this topic. I feel like I have stolen third base, and I haven’t yet and the players have worked hard even come up to the plate. Because why? You are mostly Ameri- cans. You cherish and respect aggression. It is a genetic to educate a lot of new players value. . . . The right to bear murder weapons is enshrined in about what is acceptable and what your constitution. And no less a celebrity than Charlton Heston, is not acceptable. . . . In ‘06- and the most powerful organization in America, the National Ri- ’07, there were 50,000 hits in the fl e Association, ensures that guns are always available everywhere. NHL, and fi fty-two of those were And if that is not enough, the U.S. Supreme Court, in June of reviewed for discipline. Last year, this year . . . recently held in a case called District of Columbia v. there were only ten. So the fact is, Heller, that the proper interpretation of the Second Amendment there has been a renewed emphasis meant that concealed handguns in Washington were legal. in the NHL on speed and skill and respect. “ So all of you, my American colleagues, will fundamentally agree that a good hockey game requires aggression and fi ghting. Gee, “Right now,” he concluded, “our even Governor Sarah Palin, a moose-hunting hockey mom, game is changing before our very would be on my side. So my task is really quite simple. I need eyes. I will predict that violent be- only persuade our Canadian Fellows, most of whom, as young havior will be on the wane, but I men, played aggressive hockey, but who have morphed into pin- also will predict that fi ghting will stripe socialists and elitists to remember the past, when they were stay part of the game.” cocks of the walk and strutted their stuff.

Thus ended the debate. Alan Lenczner Canadian Lawyer, arguing for allowing fi ghting in ice hockey bon mots THE BULLETIN ! 53 FELLOW JOHN MCGOLDRICK ON AIDS EPIDEMIC

THE END OF AIDS— THE EPIDEMIC TODAY, A VACCINE TOMORROW

Those present at the 2002 annual meeting in New York will well remember the address of John L. McGoldrick, FACTL, then Senior Vice President and General Counsel of Bristol-Myers Squibb. His principle theme: “Excellent lawyers . . . grow out of being excellent human beings. . . . [T]here needs to be a place in the life of lawyers where they get something besides being lawyers. . . . I worry about young people coming into the profession who. . . get the idea that single-minded and total devotion to work is what will make them the best at what they do. . . . I think we some- times give them reason to believe that that’s true, but you know it’s false. There needs to be this breadth of human experience.”

McGoldrick ended his presentation that day, by, as he later described it, “hijacking” the microphone to try to “convey to the College something that, in a way, has nothing to do with the College, . . the profound impact on . . . the era we live in, of the HIV/AIDS epidemic.”

In the intervening years, McGoldrick has undertaken to live out the career advice he had given that day, and the College invited him back to Toronto to tell his story.

A high-profi le thirty-year practicing trial and appellate law- yer, McGoldrick’s mid-90s move to Bristol-Myers Squibb, the company that developed the fi rst anti-retroviral drug, AZT, had brought him face to face with the AIDS crisis. AZT had transformed what had been a death sentence into a chronic, manageable disease for patients in the West, but John McGoldrick

54 ! THE BULLETIN in the developing world, the pic- times that of their male counter- serted that there are between 33 ture was very different. In Sub- parts. McGoldrick realized that million and 39 million people Saharan Africa, where 75 percent education and access to cheaper living with HIV today and that of AIDS deaths occur, there was drugs could never be enough. there are 7,500 new infections neither the money nor the means The only hope of stemming the daily. “For every person who be- of delivery for these drugs. exponential increase in the rate of gins anti-retroviral therapy, four AIDS infection would be a vac- become infected.” As Bristol-Myers’ Executive cine, a medical option that wom- Vice-President for Global Public en could initiate and control. “Women . . . are bearing the Policy, he saw an entire continent great brunt of the epidemic, . . . at risk, and in 1999, he launched In 2006, McGoldrick decided and particularly . . . in Africa. the company’s groundbreaking to leave the private sector to de- Depending on how you model $150 million “Secure The Fu- vote his efforts full-time to the it, we have the potential for as ture” initiative to fund research, search for a viable AIDS vac- many as 10 million new infec- training and community out- cine as Senior Vice-President of tions a year by 2030. . . . [T]his reach in southern Africa. Un- External Strategy Development epidemic is going to go on for a der his leadership, the company of the International AIDS Vac- very long time without a vaccine. made its AIDS medicines avail- cine Initiative. The goal of this It may take new and potentially able in African countries below global partnership of academic, startling turns that it has not cost and its patents at no cost. pharmaceutical and government yet, and we will surely see, if we institutions is to coordinate vac- do the best we plausibly can do McGoldrick went on to chair the cine research and accelerate the now short of a vaccine, a death Accelerating Access Initiative, a development of a viable vaccine. toll that probably approaches global consortium of fi ve inter- and could far surpass 100 mil- national United Nations agencies He began his address to the Col- lion people.” and eight major pharmaceutical lege by expressing the intent “of companies, whose mission was helping you come away . . . with Turning to the impact on life to work with African countries to some sense of the nature of the ep- expectancy of the HIV/AIDS increase access to HIV/AIDS care idemic, of the fact that it is gain- epidemic, he noted, “After many and treatment. Since its launch ing on us, [that] we are still not years of increasing life expectancy in 2000, 39 countries have devel- winning against this virus, that in much of the developing world, oped national plans to increase we have had a long, diffi cult road, we have seen precipitous drops in access to care, which has resulted that we still have not solved the some places. Botswana, . . . a in many of those countries in a problem, but that we . . . will have genuinely democratic country, a tenfold increase in the number of a vaccine, save only the enormous country with actually signifi cant patients receiving these drugs. serious question of when.” resources as African countries go . . . this is a projection, but it has The disease, however, continues THE SCOPE seen its life expectancy reduced to outpace the global response. OF THE PROBLEM from the low seventies to the Social and cultural norms in Sub- mid- to low thirties.” Saharan Africa produce a rate of Advising caution about estimates infection of young women three of epidemics, McGoldrick as- L

THE BULLETIN ! 55 “What is clear,” he continued, “is HIV/AIDS IN not for lack of will; it is not for that the economic impact . . . of THE DEVELOPED lack of money; it is not for lack of this epidemic is just extraordinary. WORLD drugs. All of those things make a The numbers . . . are just striking, huge difference in how many we the equivalent of twenty-four 747s Reviewing the history of the vi- treat, but it is because the health- crashing, with all lost, every day . rus, McGoldrick reminded the care infrastructure and the infra- . . over and over and over, day in, audience that it was discovered structure broadly in many coun- week in, month in, year in, year in 1981/82. From then “until tries simply cannot deal with the out, extraordinary numbers.” the mid-nineties, it was a death whole panoply, the whole history sentence. If you were HIV-in- of the disease and what must be “I think . . . one of the reasons fected, you would die of that dis- done. . . . {W]e cannot treat our that many of us who have devoted ease. . . . With the advent of way out of the epidemic in much some of our time and effort to this the anti-retroviral drugs, . . . it of the developing world. We have gotten there not so much by became possible in the right cir- have, I submit, a moral obliga- an intellectual understanding of cumstances to make the disease tion as a world to treat everyone the numbers and of the epidemic, morbid, lifetime, but not mortal. we possibly can in the mean- but by seeing it up close and per- And that has happened for many time. But ‘in the meantime’ has sonal one way or another. . . . I of those lucky enough to live in no meaning unless there is an went to Africa a lot, since I was developing countries. It is not end. And I think many believe, overseeing programs there, and I perfect. . . . The virus mutates and I surely believe, that we will made it a point of getting to the around the drug, every drug we not have an end to this epidemic real interface of the epidemic, in have, and emerges new, and the without a vaccine.” the huts and the villages and the drug regimen has to be changed townships and the shantytowns, more or less every twelve months, “If we were to treat everybody and anybody who has done that variably. Those drugs aren’t all the world has set out to treat by comes away with memories seared fun, and sometimes we run out 2015, which is not everybody in your brain. . . . [I]t is an experi- of drugs that will work for an who needs it, . . . we would be ence that those who have seen the evolving viral population in that spending 54 billion dollars a year epidemic up close and personal patient and the patient does suc- just on that. . . . [I]n 2010 . . . a have, and it is those things, more cumb. But it surely prolongs life third of all the development bud- than the numbers themselves, and, for many people, to a nor- gets of all the world’s countries, which show the power of the mal life expectancy with relative- meaning all the aid that goes epidemic. They are very hard to ly little change.” to developing countries for any convey when one hasn’t seen those purpose whatsoever, food, water, things one’s self. I think this is one THE CHALLENGE anything, would be consumed of the reason why in the rich world IN THE by simply the drugs on an annual today, AIDS, which has been sig- DEVELOPING WORLD basis, not the cost of drugs, but nifi cantly dealt with by anti-retro- the cost of delivery of drugs; the viral drugs, is not thought of emo- “One message I bring you to- drugs are essentially free today. tionally at least as the profound day,” he continued, “ . . . is that It is a huge burden. And that is historic epidemic it is.” that cannot be done in much of year after year, and would grow.” the developing world. And it is

56 ! THE BULLETIN VACCINE— “There is, he continued, “a phe- any other organism, including THE ELUSIVE nomenal explosion of this virus man, so, another reason for op- SOLUTION when it enters the body. One timism.” virion, that is one viral cell, will “So, a vaccine, a hundred percent create 1,000 new cells in 20 min- WHAT CAN WE DO? vaccine, . . . is what we are striv- utes. Lifespan is around a day, ing for. . . [I]f we have partial day-plus. At steady state, 10 bil- McGoldrick went on to outline effectiveness, which is surely at- lion new copies are being created the research for a virus, most of tainable, we will have immense every day. . . . [I]t makes muta- it in countries where there are savings in life. . . . I ask you to go tion errors all the time. And in different forms of the mutating away . . . at least hearing clearly . . one day, it will make every theo- virus. Concluding, he remarked, . that this epidemic rages on; it is retically possible mutation error “A question which would be fair growing; we are losing in the race that can be made, all leading to to ask is, . . . ‘But what can I do?’ against it.” its ability to evolve around drugs There is no easy answer to that. and vaccines. . . . We have some- Most of our needs are for ideas, McGoldrick went on to explain where between six hours and not so much for money, though that the HIV virus “is unlike any probably two days to prevent the money is needed. . . . I think other virus we have dealt with. seating of the virus in the body. most of all, . . . as people who are It is magnifi cently evolved. It If we don’t get it then, we have it generally respected in your com- foils every highly evolved aspect for life. Now, we may be able to munities, if you could . . . in your of our own immune system, and have a vaccine which will be able incredibly busy lives . . . learn a it presents enormous new dif- to keep it down while we have it, little bit about this epidemic, a fi culties to vaccine science. . . . but we won’t be able to prevent little bit about the work that is We know that all humans have a it unless we get it in that period. ongoing, and be in a position to long period . . . after they have So there are serious scientifi c speak truth to error, not error that been infected, but before they challenges.” is intentional, but simply out of have AIDS. Their immune sys- perfectly understandable igno- tems are dealing with the virus to Noting that we have in the past rance, because it is true that in some degree, so our immune sys- “dealt with viruses by simply tak- North America particularly, . . . tem is doing something right. . . . ing a hunk of the bug and stick- the fact is it seems like something Another thing we learn . . . is that ing it in somebody’s arm and your that is sort of behind us. You do there is a very interesting breed own body creates the immune re- hear that played back to you all of person about in the world. . . . sponse, remembers it, when that the time. It is not. It is one of They are infected and they don’t bug comes back, it fi ghts it off,” the great tragedies of our time. It get sick. And we have some in- he continued, “You can’t do that needs to be addressed. And there stances where we know that that with HIV. You can’t put HIV, is hope at the end of what is still has gone on for 25 years. . . . So even in a weakened form, into a a pretty long tunnel.” these people are fi ghting off the person. The risks are too great.” disease. They are doing what we “We have,” he explained, “actu- would ask a vaccine to do, in ally learned a huge amount about some respects.” this virus. We know more about it, arguably, than we know about

THE BULLETIN ! 57 THE ARTIST AS AN ADVOCATE OF TRUTH and JUSTICE

NORMAN FREDERICK JEWISON

“Filmmakers and advocates share many things in common. We create theatre that touches people’s lives, on  lm and in the courtroom. . . . [O]n the one hand, we can each pander to the most base instincts of people, and on the other hand, we have the ability to make a difference, to behave in a way that gives life to the ideals that would be the foundation of our system of justice.”

A bearded, white-haired eighty-three-year-old To- ronto native, iconic Canadian  lm producer Nor- man F. Jewison’s career as a writer and director in both television and  lm has taken him from Toronto to New York, to Hollywood, to London and  nally back to Canada, where he now lives. The director of over twenty- ve movies, many of them highly ac- claimed Oscar winners or nominees, he began his career in television, producing such programs as Your Hit Parade, and the Andy Williams Show, as well as specials featuring performers such as Harry Bela- fonte, Jackie Gleason and Judy Garland in her 1961 “comeback” special. He is the recipient of the Irving G. Thalberg Memorial Award for lifetime achieve- ment in the  lm industry and is a Companion of the Order of Canada.

Norman Jewison “Examining together,” as he put it, “what it is that we can collectively learn about the way in which an artist approaches the search for justice,” Jewison’s

58 ! THE BULLETIN remarks to the Toronto meet- I thought maybe I should try in Washington with the Vice ing, illustrated with clips and deal with truth and the President of the United States from some of his best-known artist as an advocate of truth as the guest of honor. And  lms, all dealing with issues and justice. then the  lm was smuggled of justice, held his audience by the Russian ambassador to spellbound and was received President Kennedy said in Russia, and two weeks later, I by a prolonged standing ova- October, 1963, the year that was invited to Moscow at the tion. Those remarks, slightly he was assassinated, “We height of the Cold War. . . . edited, follow: must never forget that art is not a form of propaganda; When I made In The Heat of NORMAN JEWISON: We it is a form of the truth,” an the Night, they said there was live in a time when, strange to interesting observation from going to be a wave of white say, many cultivated people the President of the United backlash, and the  lm was consider truth to be unwor- States. When Albert Camus refused distribution and ad- thy of respect. . . . This is all received the Nobel Prize for vertising in certain southern old news, and we are accus- Literature, he said, “He who states. But it went on to win tomed to it, but all the judg- has chosen the fate of the art- the Oscar for best picture. I ments that we make person- ist because he felt himself to remember when I did the ally about ourselves surely be different soon realizes that  rst Harry Belafonte [televi- have to be based on the facts. he can maintain neither his sion] show, they threatened What is valid? What is true? art nor his difference unless to throw chains across the Our moral judgments, all he admits he is like others.” transmission lines in Ala- those things we decide about bama, and that . . . American our own well being, whether That is why true artists scorn television, wasn’t ready to to increase our wealth or pro- nothing. They are obliged mix black and white together. tect our health or serve our to understand rather than It won four Emmy awards. interests in some way, are judge. Maybe that is why the based on what we believe to artists—you know we are al- When I made Fiddler On The be true. ways the  rst group rounded Roof, they said it was anti- up when a totalitarian regime German, anti-Russian, anti- ART AS A FORM OF takes over—artists, free think- Christian. I shouldn’t show TRUTH ers, those who hold justice for pogroms. You know, in all as important, they always the play, Fiddler on the Roof, Carved into the red limestone become the dissidents, the which was very popular in . . . at the main entrance of rebels and those that chal- Germany, there were a lot of Victoria College at the Uni- lenge authority. laughs and singing and en- versity of Toronto [of which tertainment, and the pogrom Jewison is the Chancellor] When I made a  lm called was simply a crash of a glass are the words, “The truth The Russians Are Coming, they and a scream offstage. But shall make you free.” So, called me a “Canadian pinko” the  lm version did not do when I was struggling for a in Hollywood. They said the much business in Germany, theme about today’s talk to  lm was pro-Communist, yet because the  lm dealt, I be- such an august assembly . . . the premiere of the  lm was L

THE BULLETIN ! 59 lieve, more with the truth, American neighbors. except to get off the bus and because in  lms, we have to watch it pull away. And as be somewhat historically ac- During the Second World I stood there in the dust on curate. If there is a pogrom, War, I served in the Canadian that country road in Ten- you have to show a pogrom. Navy for about a year and a nessee, I thought about the Sometimes in the theatre it half. I was demobilized and I newsreels I had seen showing is dif cult to do that, but in had the opportunity to hitch- so many young black men in  lm we can, and sometimes hike through America, and uniform being shipped off to it offends people because it is it was during this journey to war to defend their country tougher to take when you get the southern states that I ex- and possibly give their lives closer to the truth. perienced my  rst encounter in the process. Yet when they with a segregated society. I returned home to Tennes- THE ARTIST’S was only eighteen years old, see, they would have to sit in APPROACH TO THE and I was standing by the the back of the bus and they SEARCH FOR JUSTICE side of the road, in my heavy couldn’t get a cup of coffee blue Canadian Navy uni- at Woolworth’s. So I think it It has always seemed to me form, and it was a swelter- was there, it was there on that that many trial lawyers have ing day. It was just outside highway, on the highways of a secret desire to be in show of Memphis somewhere, and Alabama and Mississippi and business. . . . [L]et me take a a bus stopped and I get in. I Louisiana that my desire to turn at doing something that headed for the back seat by make  lms like In The Heat of it appears to me that you tell an open window, and a few the Night and A Soldier’s Story me you do. Let’s together minutes later, the bus stopped really took root. examine the record of four and a red-faced, beefy driver of my  lms and see what it is looked at me in the mirror IN THE HEAT OF that we can collectively learn and he said, “Are you trying THE NIGHT about the way in which an to be funny, sailor?” I was artist approaches the search confused. There were three In The Heat of the Night was for justice. or four white people in the my  rst  lm in which the front of the bus staring at me justice system came directly Five of my  lms are in and he said, “Can’t you read under scrutiny. In this pic- their essence a personal the sign?” A few black people ture, a smart, sophisticated, observation on essential and around me looked uncom- black homicide detective fundamental issues of justice. fortable. I didn’t know what from the north, Virgil Tibbs, In these  lms, I have dealt to do. And then I noticed a has the bad luck to be passing with topics ranging from the small tin sign, hanging from through a very small, racist irrationality of the Cold War the roof of the bus on two lit- Mississippi town on the night to the potential of inequality tle pieces of wire. And it had when a prominent white busi- and prejudice to pervert been hand lettered. And it nessman is murdered. And the course of justice. As a read, “Colored people to the Sydney Poitier [Tibbs] was Canadian, I always felt we rear”. arrested on a suspicion of could view more objectively murder while waiting at the the problems that face our So I didn’t know what to do, train station after visiting his

60 ! THE BULLETIN mother. Now, those of you dogs against unarmed men New York, Robert Kennedy, who have seen the  lm will and women who were sim- and he said, “See, I told you, recall the scene when Sydney ply trying to assert their legal Norman,” he whispered in is brought in front of the lo- rights. my ear, “timing is every- cal southern sheriff, played thing.” by Rod Steiger. Let’s look at It was Christmas of 1966, I that scene. was in Sun Valley, Idaho with So, you all know a lot about my children on a ski vacation, timing. You are experts at In the  lm clip that followed, the and I met Bobby Kennedy. timing. This was not the  rst Sheriff sitting in his of ce, one My kid broke his leg in a ski  lm to deal with racism in foot on his desk, sipping a soft race and his kid broke his leg America or the belief that ev- drink, insolently interrogates in a ski race, so we met at the ery person must be respected, Tibbs, accusing him of having doctor’s of ce and we were regardless of his or her color. murdered for the $200 found just sitting there, talking, and . . .In one of the scenes that I on his person. Sheriff: “Colored Bobby said, “What do you remember the most about In can’t earn that kind of money. do?” I told him I was a  lm The Heat of the Night, it was That is more than I make in a director and I told him a little a slap, a slap that was heard month. Where’d you earn it?” bit about the story of a  lm I around the world. Let’s just Tibbs: “Philadelphia.” Sheriff: was going to do called In The take a look at that moment. “Philadelphia, Mississippi?” Heat of the Night . . . . And he Tibbs: “Philadelphia, Pennsyl- picked up the signi cance of In the next  lm clip, the white vania. . . . I’m a police of cer.” the  lm immediately. “And Sheriff and the black Detective [dropping his badge and ID card Robert Kennedy [said], You Tibbs, in a coat and tie, are in on the Sheriff’s desk]. Scene know, it is very important, a greenhouse, facing an older closes. Norman, [imitating Kenne- a white man. The white man’s dy’s Boston accent] that you male black house servant, dressed JEWISON: So, here we have a make this  lm,” and he be- in a white coat, holding a tray confrontation between a black gan wagging his  nger at me. of liquid refreshments, is in the man and a white man, and “Time is right for a movie like background. White man: “Why they are both of cers of the this. Timing is everything, in did you two come here?” Tibbs: law. I have always believed politics and in art and in life “To ask you about Mr. Colbert. that the idea behind a  lm itself.” . . . White man: “Let me understand is more important, perhaps, this. You two came here to ques- than the story of the  lm itself. [W]hen the  lm was re- tion me?” Tibbs: “Some people, 1966 was a period of time in leased a year later, and it let’s say the people who work for America where we were go- received overwhelmingly Mr. Colbert, say you were the ing through a civil rights rev- favorable reviews . . . the person least likely to mourn his olution. In the midst of black New York Film Critics in- passing. Was Mr. Colbert ever in and white people confront- vited me to New York to ac- this greenhouse, say last night?” ing the sharp edge of racism, cept the award for best dra- In a split second, the white man some local law enforcement matic  lm of 1967. . . . [T]he impulsively slaps Tibbs in the of cials were training water person who presented the face and Tibbs re exively slaps cannons and releasing attack award was the Senator from L

THE BULLETIN ! 61 him back. White man to Sheriff: wagon pulled by two mules. triguing mysteries, were now “You saw it. What are you going We marched arm and arm enlisted into a higher calling. to do about it?” Sheriff, reluc- with Bobby and Ethel Kenne- tantly: “I don’t know.” White dy and Harry Belafonte and I ask you to re ect on what the man to Tibbs: “I’ll remember Sammy Davis and hundreds fact that a black man is run- that. There was a time when I of civil rights activists, and it ning for the President of the could have had you shot.” Tibbs seemed that day that it was United States means to those turns and leaves, followed by now Bobby who carried ev- of us who were engaged in the Sheriff, and last, hesitating eryone’s hope for the future those early struggles, what it for a moment, shaking his head of America. means to the people of Amer- slightly, the black servant turns ica and citizens of the world. and leaves without a word. The progress in civil rights since the release of this  lm . . . AND JUSTICE JEWISON: Well, that  lm has been incredible. . . . FOR ALL went on to win  ve Acad- [D]uring those years of strug- emy Awards, including Best gle a great deal of courage was All of you are aware that I Picture, proving Robert Ken- displayed by many young drew on the American Pledge nedy right. . . . But that was and gifted attorneys who of Allegiance for the title of 1967. A few days before Os- fought the battles of racism one of my  lms, which was car night, tragedy blotted the in the courthouses of Amer- ironically called . . . And Jus- Oscars from everyone’s mind ica, and from those small tice For All. . . . Now, the task that year. Martin Luther King towns of Mississippi all the of the artist is to highlight was assassinated, and the way to the Supreme Court of when the perspective of those ceremonies were postponed the United States. They often that control institutions do from Monday to Wednesday put themselves in the path of not line up with the perspec- and a chartered plane  ew danger to advance the strug- tives of those whom those east for the funeral from Los gle for an integrated society. institutions are designed to Angeles. It was very quiet on Those of us in the artistic serve. Films are a form of ar- that plane, and I remember community had a great privi- tistic expression. And in the we were all overcome with a lege of lending our voices to world of a visual art, we have sense of hopelessness, a sense this cause and working with progressed beyond the point of anger and bitterness. No an integrated team of artists where we assess the quality one could save the country to produce  lms that human- of a painting by determining now. And there was Quincy ized what had become a very how closely it depicts the vi- Jones and Lena Horne and divisive issue and was, in sual reality of a scene. Much her composer husband, Len- retrospect, I think, one of the of the great visual art makes nie Hayton, Marlon Brando,  nest hours of popular  lm- its contribution by challeng- Caesar Chavez, Hal Ashby making. We knew at the time ing the viewer to approach a and Pascal Wexler, myself. that the technical skills of our subject in a creative manner. And then in Atlanta we craft, which we had acquired joined the others in that long, through countless hours of In making . . . And Justice dusty post-funeral march fol- making light comedies and For All, I wasn’t making a lowing Dr. King’s casket on a television specials and in- training  lm on how to con-

62 ! THE BULLETIN duct a trial according to the voices are heard. Who has con ict is at the heart of all best practices taught in law got the biggest gross? This, good storytelling, it is this schools. I wasn’t making a of course, has the potential essential con ict which in- documentary. I was trying to distort the whole creation formed one of the most con- to create a satirical comedy of art. And the legal  eld is troversial scenes I have ever that dealt with many of the no different. Those attorneys  lmed. So [laughing] let’s absurd realities that plagued who are the most skilled at take a look at Al Pacino as a the American legal system of manipulating people’s opin- deeply disturbed advocate in the day. We undertook ex- ions are handsomely reward- the climax of . . . And Justice tensive research. We kicked ed by those who have the re- For All. over the rock of the American sources to retain them. justice system as it lay on the In this  lm clip, Al Pacino, de- ground in 1979 and depicted The theatre of the courtroom fending a well-dressed older much of what we observed. seemed to reach a new low white man against a charge of during the O.J. Simpson trial rape, is addressing the jury. Let me share with you what in 1995. And I am sure that “Simple isn’t it? Only it’s not I personally observed in con- many poor black or Latino that simple. . . . [W]e have a ducting research for this  lm. kids who found themselves problem here. You know what I spoke with  ve criminal in that courtroom long after it is? Both sides want to win. . court justices, two in Brook- the news organizations had . regardless of the truth . . . re- lyn, one in the Bronx, two in departed for the next celeb- gardless of who is guilty and Manhattan. Three out of the rity trial and feeding frenzy . who is innocent. Winning is  ve were personally armed. . . did not receive the quality everything. . . . I have a case to I sat through a number of of justice that was offered to end all cases. The one thing that cases and witnessed plea Mr. Simpson. bothered me: Why would she bargaining in crowded hall- lie?. . . . Yesterday I found out ways, where people’s lives In the course of my research, why. She doesn’t have a motive. were being traded like at a I also observed there was an- You know why? Because she’s Moroccan fair. I came to the other struggle taking place not lying. Ladies and gentlemen realization that while peo- in the courtroom. There is a of the jury, the prosecution is not ple’s lives are being affected human struggle in the hearts going to get that man today. No, in the most profound ways and minds of many gifted because I’m going to get him. in the criminal courtrooms and committed trial lawyers, My client. . . is guilty.” Judge, of America, for the lawyers, and this has to do with their banging his gavel: “You are out the courtroom was a form of knowledge of truth. When of order.” Pacino: He is guilty. theatre. While the lofty ide- their talents are used in a He told me so . . . [said] Let’s al of the Constitution was a manner that disquiets their make a deal.” declaration of justice for all, inner beings, I think they winning was everything in become uneasy. Now, to an JEWISON: I know that many America. And there is no outside observer, there is a of you, like the American difference in sports, busi- danger of hypocrisy in the Bar Association in 1979, re- ness or politics. Winning is judicial system when the best ally disliked the depiction everything: movie grosses, lawyers are employed to de- TV ratings determine which fend the guilty. . . . But since L

THE BULLETIN ! 63 of an attorney who aban- sent the white boys home. work detail, painting the hall- dons his professional oath So, he saved us [laughing] way of the white of cers’ quar- in the course of a trial. But and made it possible for us to ters. Soldiers [singing]: “Let the perhaps you will agree with make this  lm, really. great colored cleanup troops do me on two things: First, the it. . . . anything you don’t want purpose of art is to challenge You know, the  lm is con- to do.” Sergeant: “Let me tell conventional wisdom. And structed like a mystery. When you fancy-assed ball-playing n- second, while the character a black sergeant is murdered -----, . . . this country is at war. may have deserved to be dis- on a segregated military base, You n------are soldiers. . . . ” CJ: barred, the actor portraying the immediate presump- “What kind of a colored man are him, Al Pacino, deserved the tion of guilt falls on the local you?” . . . . Sergeant: “You try- Academy Award nomination white Klan members. And ing to mock me, CJ? Whatever which he received for this this conclusion is borne out of an ignorant low-class geechee performance. the assumption that the con- like you has to say isn’t worth ventional tension between paying attention to, is it?. . . . If A SOLDIER’S STORY whites and blacks has boiled it wasn’t for you southern n---- over as a result of the murder. -- white folks wouldn’t think we A Soldier’s Story is a  lm that And few people realize that were all fools.” During this ex- takes the traditional preju- the great social democrat, change, Private Peterson, played dices of American racism that Franklin . . . Roosevelt, was by Denzel Washington, comes to we dealt with in In The Heat of the supreme commander of a CJ’s defense. the Night, and it delves a little fully segregated armed force. deeper. We shot this  lm in It was not until the 1950s, in JEWISON: You know, it was Arkansas . . . . I couldn’t have the Korean War, when Harry an amazing play by Charlie made this picture without Truman  nally integrated the Fuller. This young black cap- [then Governor] Bill Clinton, U.S. Army. The subtext of this tain, Captain Davenport, is because we didn’t have very  lm is an exploration of this sent from Washington to in- much money. . . . I needed legacy. The audience is intro- vestigate the murder. He is about 500 troops marching duced to this tension during a young lawyer-soldier, and out at the end of the picture, a celebration of victory by an he becomes focused on two and I just couldn’t afford all-black baseball team. Let’s white of cers who had en- them. And I told the Gov- take a look at this scene from countered the dead sergeant ernor that it would be nice A Soldier’s Story . . . . on the night of the murder. if the young black people in But despite his suspicions, America could see what their Black Sergeant Waters enters the young captain stayed grandfathers and their uncles barracks. Black soldiers are true to his training as a law- did in World War II when they lounging around in their baseball yer, and he continues intently marched out. He said, “Well, uniforms. One, CJ, has a gui- to question all involved. And I think we can help you with tar. They are singing. Sergeant: while his personal prejudices that.” And he called in the “Knock it off. We don’t need any may have led him to presume head of the National Guard more of that guitar sittin around guilt, his better instincts as a and the General called out the shack music today, CJ.” He lawyer caused him to hold a a brigade of the guards and orders them to get dressed for a presumption of innocence of

64 ! THE BULLETIN the white suspects until his things need getting rid of. Man him nearly insane in his cell, investigation was completed. like Waters never did nobody no had been buried long ago. good anyway, Captain” Law- And he talked about growing The ultimate revelation at the yer: “Who gave you the right to up black in New Jersey, about end of A Soldier’s Story is not judge, to decide who is  t to be a the  rst time he crossed a only the identity of the ac- negro and who is not?” The two white of cer, about the  rst tual villains, but the dif cult are led away. time he was in jail, and how personal acknowledgement In the  nal shot, Captain Dav- he had been convicted in jail of the destructive force of enport walks over to the window for a double murder when he racism. The heart of a black and stares out silently. Slowly a was on the peak of being the man, the captain learns, is tear begins to trickle down his middleweight champion of equally susceptible to the cheek. the world. He talked about disease of hatred. Let’s just the sense of hopelessness in take a look at the last scene, JEWISON: That demonstrat- solitary and the certainty he of this revelation on Howard ed the problems of a segre- would never come out alive Rollins Jr. gated military. and his reading and his de- termination that he would be In the interim, CJ has died, ap- I would like to end today with able to see through walls and parently as the result of a mis- a few thoughts on The Hurri- sense the sunlight that was sion the sergeant sent him on. In cane. . . . The  lm is based on denied him. He believed he a  ashback during the interroga- the plight of the wrongfully had been able to do that once tion of one of the black soldiers accused Rubin “Hurricane” he had dealt with his anger, by Captain Davenport, that Carter from New Jersey, who the hatred that he returned to soldier and Peterson, on patrol, spent most of his life in prison those who had hated him and have come upon Sergeant Wa- for murders he did not com- put him behind those walls. ters in the nighttime. He is roll- mit. And, again, the theme ing on the ground, covered with was racism and economic That turning point came in dirt, obviously drunk, throwing inequality perverting the jus- a key moment in the movie. up. Peterson: “Big bad Sergeant tice system. . . . It is another tour de force for Waters down on his knees.” Denzel Washington. Let’s During the confrontation, Ser- [E]arly in the project Rubin take a look at the scene with geant Waters: “CJ, he could Carter came up to my farm Denzel and his two lawyers in never make it. He was a clown, in Caledon. It was a sunny the New Jersey penitentiary. a clown in blackface, a n-----.” spring day, and we went At the end of the confrontation, for a long walk around the Carter’s lawyers are urging him Peterson pulls out his pistol and Caledon Hills. And he was not to go into Federal Court with shoots the helpless sergeant. a quiet, thoughtful man with the new evidence of innocence a ready smile who seemed at that has been uncovered because The interrogation continues, peace with the world, as if the they fear that that court may be and the soldier confesses. Pe- violent past of his early youth prevented by the applicable law terson is brought in. Lawyer: had become only a story, as if from hearing it, and he will be “You call that justice?” Daven- the anger that fuelled him as left with no recourse in state port: “I didn’t kill much. Some a  re, the anger that drove L

THE BULLETIN ! 65 court. Carter [speaking through racial prejudice, coercion of tes- place where justice is found. a microphone from behind bul- timony and withholding of evi- let-proof glass]: “Then we tran- dence. On the other hand, Mr. Filmmakers and advocates scend the law. We get back to Carter was tried twice by two share many things in com- humanity. . . . I believe once he courts and convicted and those mon. We create theatre that [the federal judge] looks at it he cases were upheld by the New touches people’s lives, on  lm will have seen the truth. He can’t Jersey Supreme Court. How- and in the courtroom. As the turn his back on me. . . . Listen ever, the extensive record clearly lead character from Fiddler to me. I am  fty years old. I’ve demonstrates Rubin Carter’s on the Roof, Tevia, might put been locked up for thirty years. conviction was predicated on it, on the one hand we can I put a lot of good people’s lives an appeal to racism, rather than each pander to the most base at risk [people who have come reason, and concealment, rather instincts of people, and on forward with evidence].” In the than disclosure. To permit con- the other hand, we have the end he insists on taking his case victions to stand which have as ability to make a difference, into Federal court and his law- their sole foundation appeals to to behave in a way that gives yers reluctantly agree. racial prejudice is to commit a life to the ideals that would violation of the Constitution as be the foundation of our sys- JEWISON: Well, in this  lm heinous as the crimes of which tem of justice. we revealed what the desper- the defendants were tried and ation of years of playing by convicted. I hereby order Rubin In the end, it is the old plain the legal rules have resulted Carter released from prison.” values that penetrate. And in: a profound injustice. And all I can think of is Cassius this required a leap of faith JEWISON: Well, yes, ladies grudgingly reminding us that that, while justice could not and gentlemen, that is Rod the fault is not in the stars, but be found in the state court, Steiger portraying the coura- in ourselves. maybe, just maybe, the truth geous Federal Court Judge, could prevail in another fo- H. Lee Sarokin. Duty and honor do not cor- rum. In closing, I want you rode as easily as motives that to take a look at and to see, My journey has come full cir- prompt men otherwise. It is to portray the willingness of cle today. Despite the probing better to be than to seem. To Rubin Carter to take a risk in and the prodding of the legal live honestly and deal just- this bold legal move, with the profession, despite tearing ly is the meat of the matter. full knowledge that it was his away the mask of hypocrisy That was said a long time last desperate attempt. In the in some of the legal institu- ago by a very wise man. Of last scene of the  lm, we see tions and despite lamenting course, I should point out that the judge coming to give rea- and rising up against the his fellow citizens poisoned sons for Carter being found role of racism and economic Socrates, which may explain not guilty. inequality in the prevention why I am not going to say of the justice rather than the any more. Judge: “This Court does not ar- promotion of justice, despite rive at its conclusion lightly. On all this, as an artist, it is in the Thank you so much. the one hand, Rubin Carter has theatre of the courtroom that submitted a document alleging we ultimately portray the

66 ! THE BULLETIN RETIRING REGENTS and CHAIRS HONORED AT TORONTO MEETING

REGENTS: Francis M. Wikstrom, E. Davison Burch, Paul C. Saunders, Salt Lake City, Utah, Georgia (Athens); New York, Downstate (New Robert W. Tarun, Judiciary; York); Chicago, Illinois; John S. Nishimoto, Hon. Garr M. King, Hawaii (Honolulu); Michael R. Wolford, John H. Tucker, Portland, Oregon, New York, Upstate (Rochester); Tulsa, Oklahoma. National Trial Competition; David Z. Nevin, Idaho (Boise); Edwin M. Speas, Jr., North Craig T. Merritt, Carolina (Raleigh); STANDING Richmond, Virginia, R. Michael Henderson, COMMITTEE CHAIRS: Special Problems in Illinois, Downstate (Peoria); Michael C. McClinton, the Administration of Oregon (Salem); W.A. Derry Millar, Justice-U.S.; Michael J. Stapleton, Toronto, Ontario, Indiana (Lafayette); Elizabeth K. Ainslie, Access to Justice; George H. Robinson, Pennsylvania (Philadelphia); Lafayette, Louisiana, David L. Brown, William J. Brinkman, Teaching of Trial and Iowa (Des Moines); Edward C. Carpenter, South Champaign, Illinois, Appellate Advocacy; Dakota (Rapid City); Adjunct State; Jay F. Fowler, John D. Everroad, Kansas (Wichita); Knox D. Nunnally, Philip A. Pfa! y, Phoenix, Arizona, Texas (Houston); Minneapolis, Minnesota, Technology; W. Shelby McKenzie, Admission to Fellowship; Louisiana (Baton Rouge); David A. Greenwood, Utah Michael A. Pope, (Salt Lake City); Malcolm E. Wheeler, Chicago, Illinois, William J. Kayatta, Jr., Denver, Colorado, Sandra Day O’Connor Maine (Portland); William D. Dolan, III, Alternatives to Dispute Jurist Award Virginia (Vienna); Resolution; Gregory K. Wells, STATE AND Maryland (Rockville); John W. Cooper, West Kenneth B. McCullough, PROVINCE CHAIRS: Virginia (Parsons); Edward M. Kronk, Q.C., U N I T E D S T A T E S Saint John, New Brunswick, Michigan (Detroit); James T. Murray, Jr., Wisconsin (Milwaukee) Canadian Competitions; Samuel H. Franklin, Steve Gaskins, Alabama (Birmingham); John Nyhan, Minnesota (Minneapolis); C A N A D A Sacramento, California, Douglas R. Young, Michael W. Ulmer, John Martland, Q.C., Complex Litigation; California (San Francisco); Mississippi (Jackson); Calgary (Alberta); Joseph D. Cheavens, Ann B. Frick, W. James Foland, John P. Barry, Q.C., Houston, Texas, Colorado (Denver); Emil Gumpert Award; Missouri (Kansas City); New Brunswick (Saint John); Richard C. Tynan, Carey E. Matovich, Je" rey S. Leon, LSM, Douglas R. Young, Connecticut (Hartford); San Francisco, California, Montana (Billings); Ontario (Toronto); Federal Criminal Procedure; R. Stan Mortenson, Donald R. Witt, Raphael Schachter, Q.C., Washington (District of Nebraska (Lincoln); Quebec (Montreal) Reagan W. Simpson, Columbia); Houston, Texas, James C. Wheat, Federal Legislation; New Hampshire (Manchester);

THE BULLETIN ! 67 ARE YOUR JURORS AWAKE? PERSUADING by use of 21ST CENTURY TECHNOLOGIES

A demonstration of the use of cutting-edge technology to illustrate and enhance testimony and argument in trials anchored the Saturday program at the Toronto annual meeting.

Moderator William B Smith, FACTL, San Fran- cisco, California, Nanci L. Clarence, FACTL, also of San Francisco, and Douglas H. Arnest, owner, vice-president and consultant of High Impact, Inc., Englewood, Colorado, delivered a fast-paced demonstration of an array of com- puter-based programs and techniques now available to trial lawyers. Their presentation ranged from the familiar to concepts that were undoubtedly outside the knowledge of many in the audience.

The presentation began with two pieces of hu- mor, one intended, the other apparently not. The participants appeard onstage, one carry- ing a stack of heavy  le boxes full of paper exhibits, one an easel and one a foamboard- mounted exhibit. As if on signal, the stack of Technology demonstration boxes tumbled and the easel and exhibit fell

68 ! THE BULLETIN off the stage. Ms. Clarence It is more ef cient. You don’t the courtroom called Flash, then asked: “Ladies and gen- need to lug around boxes which overcomes the dif - tlemen, is this how you are like we did around the stage. culty of visualizing the level still trying your cases?” One disc holds 60,000 pages at which a CT scan has been of documents. It is ef cient taken by preparing a non- The unintended humor re- because you can cut thirty linear, interactive presenta- sulted when the  rst elec- to  fty percent trial time, tion that is easy to navigate tronic exhibit would not and you can get three to four and visually stimulating. come up, prompting one of times as much evidence into He showed how Flash can the participants to utter, sotto evidence in the same period be used to demonstrate an voce, “Gotta love this tech- of time. It is  exible.” individual’s traumatic brain nology. It’s not coming up.” injury and the surgeries the Eventually, however, it did Starting with a demonstra- injured person endured. come up. tion of text pulls using the “Simply put,” he explained, familiar Trial Director, he “Flash enables you as an at- Smith launched the pro- demonstrated how the rel- torney to provide more infor- gram by observing: “[N]ew evant portions of a document mation in less time, and that technology . . . is more ef- can be highlighted, enlarged, results in greater compre- fective, more ef cient, and cleaned up and colorized hension. He used a 3-D ani- more  exible. It is effective to allow the court and jurors mated skull fracture in icted because eighty- ve percent to focus on the important by a golf club to show how of what we learn, we learn portions. this technique can be used to visually. And your audience move through the plaintiff’s has changed. Eighty percent He then went on to demon- brain, looking at each level, of your jurors are younger strate how electronically cre- seeing the depth and extent than forty-six in many juris- ated exhibits can be changed of the brain injury, and visu- dictions. And many of us in in midstream if the evidence alizing the shape of the golf this room still live in Word- makes a change necessary. club in the injured person’s land only, whereas the ma- Using a variety of digital skull. jority of your jurors are out-  les, Arnest showed how an side of Wordland. They are X-ray  lm could be convert- Smith pointed out that be- living in a visual word. They ed to make unnecessary the sides the obvious advantag- learn from computers. They use of a lightbox to display es of being more effective, learn from TV screens. They it in court and how digital ef cient and  exible, this learn from Kindles. . . . It is  les created by a medical il- technology allows counsel to a brand new world.” lustrator can be used to dem- illustrate dif cult concepts onstrate the magnitude of a and theories. He showed, “Electronic presentation of physical injury without en- for instance, how a digital evidence,” he continued, “re- larged exhibit boards. graphic could be used to sults in increased attention, demonstrate the difference increased retention, and in- Arnest went on to demon- between the important terms creased comprehension. . . . strate a technology new to L

THE BULLETIN ! 69 “equivalent” and “identi- adding facts to each side of Ms. Clarence demonstrated cal,” concepts that are often the scales. how counsel could make confused in a patent case. jury instructions come alive The panel demonstrated the by putting each element in a The panel went on to illus- use of impact photos, includ- box, creating building blocks trate, using electronic ex- ing photos that tell the story that could be tied to evidence hibits, how such technology with one photo, side-by-side proving or disproving each could be used to explain photos to show dramatic element, progressively pre- scienti c concepts, in the changes and enlarged photos senting in a compelling way example used, to demon- that highlight small details how the jury could apply strate how both the mental that destroy the credibility of complicated legal concepts. illnesses Parkinsons, which oral testimony. They dem- a jury understands, and onstrated the use of graph- The panel showed how schizophrenia are caused by ics, supported by testimony visuals could be used to chemical imbalances, mak- to illustrate a sequence of humanize a client by tell- ing a defense of schizophre- events. ing his or her life story and nia as a disease understand- how complicated business able to a jury. Ms. Clarence demonstrated transactions could be ex- the dramatic use of a time- plained, element by element. Ms. Clarence demonstrated line going back in time, to They demonstrated, for in- how one e-mail that was be- which was attached at the stance, how a jury could be ing used to establish a de- appropriate place every inci- made to understand a com- fendant’s intent to deceive, dent supported by testimony mercial loan transaction could be put in context by that led to the conclusion that by breaking it down into loading into an exhibit blue defendants in a celebrated its simple sequential compo- dots representing every e- second degree murder case nent parts. mail sent by the defendant had prior knowledge that in the relevant time frame, their dogs were capable of Their next subject was the with the ability to pull down killing. Smith illustrated the use of videos to tell a sto- each pixel to show the at- use of a timeline going for- ry—a television newsclip or tached message, thereby il- ward establishing a compel- a surveillance camera record lustrating the the futility of ling chronology leading to a of an event. From that they trying to show have an in- conclusion of unlawful com- segued into the use of vi- tent to deceive using one e- mercial activity. In each case, sual storytelling animations mail from a sea of e-mails. technology enabled counsel to tell a story, for instance to click on the box illustrat- the illustration of how a ma- She showed how graphics ing each relevant event in chine works, explaining the could be effectively used in a walking through the timeline concept of 3-D modeling by closing argument to analyze and to delete any event that an animator or the anima- legal concepts, such as “be- was not allowed in evidence tion of a collision. The mod- yond a reasonable doubt,” without necessity of redoing els used for this purpose can using a set of scales and the entire exhibit. be made accurate to within a

70 ! THE BULLETIN millimeter by the use of laser able, called three-dimension in courtrooms. Experts will scanning volumetric rendering, which be able to testify from their enables the demonstration of of ces. Criminals can have They paid particular atten- injuries in a whole new light. their day in court while safe- tion to the use of this tech- First, the individual’s CT or ly behind bars.” nique in Markman hearings MRI scans are scanned into a in patent cases to educate computer. Then each image Next, Ms. Clarence explained the court ef ciently and ac- is isolated. Then the injured immersible virtual reality curately about the meaning areas of the brain are out- which can create three-di- of patent claims at issue, re- lined on each isolated  lm. mensional immersive in- lating the claims to a visual Then the computer is in- teractive worlds online. “I illustration, so that the judge structed to stack and merge would say . . . it is a very use- does not make his or her own the isolated images. The  - ful medium, one that needs interpretation from the claim nal product is a three-dimen- to be explored, because it al- documents. sional object with the areas lows us to not only tell jurors of the injury isolated, iden- what they are going to see, The panel warned that on ti able, and quanti able. In not only display in 3-D, but occasion modeling and vi- the exhibit they used, one to actually give them, where sual animations may indeed could see blood and air con- subjective perspective and point up weaknesses in one’s tained within the brain in a point of view are at issue, the own case. They explored 3-D model of an actual plain- ability to be in the space, to the use of one’s own expert tiff’s brain. see what witnesses see and to discredit an opponent’s then move and see what this visual animations or to pre- From there, the panel delved witness saw, to put the fact- pare one’s own animation into the concept of live holo-  nder in the actual environ- to refute that of the oppo- grams. Already the Musion ment, in real time. The Rules nent. It is crucial, they em- Eyeliner uses a high de ni- of Evidence aren’t yet writ- phasized, that every fact de- tion holographic video pro- ten for this and we haven’t picted in your animation be jection screen that allows seen them in an actual court- supported by evidence, the spectacular, three-dimen- room, although they have absence of which may be de- sional, moving images to ap- been used in mock trials and tected by slowing down the pear within a live stage set- studied, including by some animation. In short, these ting. This new technology of the organizations . . . [of] are tools for use in a court- brings dramatic, previously trial court associations. We room. They are the medium, unseen 21st Century video will be seeing this technol- not the message, and they do  lm effects to live events, in- ogy coming into our court- not form your trial strategy; cluding audiovisual artistic rooms, and we need to start they simply illustrate it. performances, conference or thinking about how we are trade show presentations, going to use [it].” From there, the panel delved retail displays and large into esoteric new technol- scale digital signage. Soon,” ogy that is becoming avail- Arnest predicted, “it will be

THE BULLETIN ! 71 COLLEGE INDUCTS 99 AT TORONTO MEETING

UNITED STATES Michael D. Gonzalez, David L. Balser, IOWA: Paul H. Spaht, Glendale Richard H. Deane, Jr., Brad J. Brady, Baton Rouge ALABAMA: ! omas F. McAndrews, Atlanta Cedar Rapids Peter E. Sperling, Robert C. (Mike) Brock, Manhattan Beach James B. Durham, Martin A. Diaz, New Orleans Montgomery Brunswick Iowa City Steven W. Usdin, Harlan I Prater, IV, CONNECTICUT: Stephen J. Powell, New Orleans Alan T. Rogers, Kathleen Lenehan Nastri, HAWAII: Waterloo Edward J. Walters, Jr., Birmingham Bridgeport ! omas E. Cook, Richard J. Sapp, Baton Rouge Honolulu Des Moines ALASKA: DISTRICT OF Martha L. Sha" , MASSACHUSETTS: Michael L. Lessmeier, COLUMBIA: ILLINOIS: Davenport Dean Richlin, Juneau Stephen L. Braga, David R. (Chip) Barry, Jr., Richard A. Stefani, Boston Pamela A. Bresnahan, Charles W. Douglas, Cedar Rapids ARIZONA: Pleasant S. Brodnax, III, James R. Ferguson, MICHIGAN: Stanton Bloom, Mary K. Butler, Steven D. McCormick, KANSAS: Cheryl A. Bush, Tucson James F. Hibey, Harry J. Roper, Donald F. Ho" man, Troy Frank E. Lesselyong, Barry J. Pollack, Alan N. Salpeter, Hays Robert F. Garvey, A. Melvin McDonald David Schertler, Michael D. Sher, Amy Sue Lemley, St. Clair Shores Michael J. O’Connor, Howard M. Shapiro, Chicago Wichita Kenneth R. Sasse Phoenix Washington Robert H. Shultz, Jr., Flint Edwardsville LOUISIANA: SOUTHERN GEORGIA: James L. Pate, MINNESOTA: CALIFORNIA: C. King Askew, INDIANA: Layfayette David D. Alsop, James P. Clark, Rome Scott E. Shockley, Virginia Laughlin Minneapolis Los Angeles Muncie Schlueter, New Orleans

72 ! THE BULLETIN MISSISSIPPI: Anne C. Vladeck, James F. Wyatt, III, PUERTO RICO: CANADA Robert B. McDu! , New York Charlotte David C. Indiano, Jackson San Juan ALBERTA: UPSTATE NEW YORK: OHIO: Donald R., Cranston, Q.C., MISSOURI: John J. Carlin, Leon J. Daidone, SOUTH CAROLINA: Edmonton Richard F. Lombardo, James S. Gleason, Dayton H. Ronald Stanley, Noel C. O’Brien, Q.C., Kansas City Binghamton Columbia Calgary Bartle J. Gorman, OKLAHOMA: MONTANA: Utica James W. Connor, Jr., TEXAS: ATLANTIC Robert E. Sheridan, John C. Tunney, Tulsa Larry D. Warren, PROVINCES: Missoula Bath John A. Kenney, San Antonio Donald H. Burrage, Q.C., Brian M. Zorn, Oklahoma City St. John’s NEBRASKA: Rochester UTAH: " omas E. Johnson, OREGON: George A. Hunt, MANITOBA/ Omaha NORTH CAROLINA: Jan K. Kitchel, Salt Lake City SASKATCHEWAN: Mark A. Ash, Portland James S. Ehmann, Q.C., NEVADA: Raleigh, VIRGINIA: Regina William C. Jeanney, Maureen Demarest PENNSYLVANIA: Jonathan Shapiro, G. Patrick S. Riley, Reno Murray, J. Gordon Cooney, Jr., Fairfax Richard J. Wolson, Q.C., Greensboro Amy B. Ginensky, Winnipeg DOWNSTATE NEW Claire J. Rauscher, Philadelphia WISCONSIN: YORK: Charlotte John E. Hall, James Naugler, ONTARIO: John P. Bracken, Alan M. Ruley, Robert J. Marino, Brent P. Smith, Frank R. Addario, Islandia Winston-Salem Pittsburgh La Crosse James C. Tory, William F. Cavanaugh, Jr., David Rudovsky, Toronto Ann M. Donnelly, Paul K. Sun, Jr., James A. Young, Cyrus R. Vance, Jr. Cary Philadelphia

THE BULLETIN ! 73 INDUCTEE RESPONSE: GRATITUDE, HUMILITYand the RULE AGAINST PERPETUITIES

Inductee James S. Ehmann, Q.C., Regina, Saskatchewan, gave the traditional response for the newly inducted Fellows at the Toronto annual meeting. As is the tradition, his response, excerpted below, was laced with both humor and insight.

I have decided to base my remarks on three subjects. First, expressions of gratitude, second, re ections on humility, and third, the rule against perpetuities. . . .

GRATITUDE

. . . Lawyers in the United States and Canada enjoy practice in free and democratic societies in which the rule of law prevails. However novel or unpopu- lar the case may be, we are free to bring it, usually without fear of harm or imprisonment. So I begin on our behalf with an expression of gratitude for the freedom and rule of law that we experience in James S. Ehmann our great countries.

74 ! THE BULLETIN The point begs grateful rec- putting together the case for last twenty-eight years, have ognition of the role played by the eligibility and suitability always stood out as great tri- lawyers and judges, past and of each of us according to the al lawyers and distinguished present, many in this room criteria of the College. We citizens. To now join ranks today, in discerning, shaping have all experienced advo- with them is a real ego-boost, and applying the law. There cating a cause without fee. which suggests that it might was Chief Justice Cardozo, Often there is great satisfac- be time now to summon up a who pronounced that the risk tion in pro bono work. But a bit of humility. . . . to be perceived de nes the variety of circumstances can duty to be obeyed and then put a pall on the Good Sa- Before leaving the subject of gave us the rule against in- maritan role. Imagine work- humility, I would like to tell determinate liability to keep ing for free in circumstances a story about me, me, me. It us within reasonable bounds. where (1) your service goes was almost twenty- ve years There was Lord Atkin, who unnoticed because you can- ago, and I was trying my proclaimed that producing not disclose it to the client,  rst big civil case. . . . I was bottled drinks containing who must be kept completely soaring along in my cross- rodents was unneighbor- in the dark, (2), the case to be examination of an expert ly. And then, the Supreme made is that the candidate, a witness, certain that I was Court of Canada, years later trial lawyer, is exceptionally eviscerating the man and all af rming the point, but  nd- good, in fact, the best; and of his opinions. I paused to ing that mere distress over (3), in some situations like glance over at my co-counsel a bug in your pop does not my own, the testimony is expecting to hear a whisper make for a bulge in your thin and hard to come by. of approbation, or to at least bank account. . . . . fetch a nod of approval. In- This was the singularly self- stead I was greeted by a dis- The next “thank you” on less lot of those of our col- approving glare accompa- our behalf is to those mem- leagues who undertook the nied by an unmistakable ges- bers of the College who initi- proof of the eligibility and ture [at the throat] signaling ated our invitation to join. . . suitability of each of us for that I should immediately . There is no sweeter honor fellowship in the College. To sit down and shut up. I was than one which comes from those Cinderellas who pre- hurt. And after some twenty one’s peers. We Inductees pared us ugly stepsisters for years of re ection, then re- thank the College, and es- the ball, we say thank you, alizing that my co-counsel pecially those within it who and best regards. Diana Lee had been right, I suggested our candidacy for convinced her to marry me. Fellowship for bestowing on HUMILITY I am no longer hurt when us such an honor. she makes the same gesture, I live and practice law in Sas- accompanied by the same The next “thank you” is to katchewan, here in Canada. command. I know now that the friends and colleagues Members of this College who she is always right. of our group who undertook I have come to know over the L

THE BULLETIN ! 75 THE RULE AGAINST it was neither vice nor the to humanity.” PERPETUITIES overpowering sexual allure of the temptress played by Another giant of the last Humility, of course, is not Kathleen Turner that brought century, Pope John XXIII, the same as humiliation. about his ruination. No, it once said, “It would scarcely This brings me to the rule was his failure to recognize be necessary to expend against perpetuities, men- the application of the Rule doctrine if our lives were tioned this morning by Chief against Perpetuities. radiant enough. If we Judge Kaye of the New York behaved like true Christians Court of Appeal in the course And so, in a gesture of there would be no pagans.” of her riveting remarks. I concerned fellowship, I take The late pontiff’s statement thank her for her telepathic this opportunity to remind is no less true in a secular awareness of my zeal for the Fellows of the College context. For trial lawyers, this  eld of the law and for that every interest must vest, I think this means striving leaving it unplowed so that I if at all, within twenty-one for excellence, caring deeply might put the  rst shovel in years and a life in being. about our clients and setting this fertile ground tonight. I Recognizing the application a good example. invite those of you to whom of the rule against perpetuities these words are familiar to to contingent remainders, I Commitment to excellence, join me in saying, “Every would like to now vest the service and example is interest must vest, if at all - epilogue to these remarks obviously at the core of that’s the tricky part - within before it is too late. this distinguished College, twenty-one years and a life dedicated as it is to in being.” The mere utter- MEASURING SUCCESS maintaining and improving ance of the words is spine- standards of trial practice, the chilling. Milton Berle, claiming to administration of justice and quote a lawyer, said, “Prac- the ethics of the profession. I remind us of the Rule ticing law gives me a grand We Inductees are therefore against Perpetuities tonight and glorious feeling. Give not only honored today, but to teach the lesson taught me a grand and I feel glori- inspired. For both reasons a few years back by the ous.” The humor in this state- we proudly celebrate our steamy Hollywood thriller ment derives, like most good induction and look forward Body Heat. It is certainly humor, from a nasty element to truly rewarding fellowship true that vice has been the of truth. Martin Luther King in the College. On behalf of downfall of many a great pointed to the same human all of us I extend our deep trial lawyer. Similarly, some weakness when he said, “We respect and our humble  ne lawyers have sunk are prone to judge success by thanks. to humiliation, owing to the index of our salaries or weakness of the  esh. But the size of our automobiles, for the lawyer played by rather than by the quality of William Hurt in Body Heat, our service and relationship

76 ! THE BULLETIN After my call from President Stout ended, I basked for a moment in the glory of the occasion, and then a clinch of tension took hold of me. The American College of Trial Lawyers  le had suddenly become the most stressful  le on my desk. Well, I dealt with that as we lawyers do. I started to do a bit of work in preparation. By the time we arrived in Toronto Friday night I was reasonably con dent. I was ready to go. Then I heard, as all of you did, a stream of some of the most eloquent, witty, pithy and powerful oral presentations I have ever heard. My con dence ebbed away, but Fellow Rufus Pennington, to whom I was happily introduced last night, came to my aid. He reminded me that in the history of mankind only  fty-eight individuals have had the unique privilege of delivering this speech. He pointed out that the audience would be  lled with living legends of the Bars of Canada and the United States of America, not to mention eminent Judges of both of our Supreme Courts and a number of other dignitaries of exquisite oratory skill. I wanted to run and hide. And then being a reasonably quick thinker, I thought, “No, I should run and  nd Norman Jewison. Maybe he could write a speech for me.” Finally Rufus reminded me that dropping the ball on this occasion would surely be the greatest humiliation of my entire life. I thank Rufus for bucking me up that way. . . . bon mots * * * * * * * * * * *

For a lesson in humility, I would like to share a story told by Don Shula about himself. . . . Don Shula, now retired, is one of the greatest and most well- known football coaches in the history of the NFL. . . . A number of years back during the off-season, Mr. Shula, his wife and  ve children went to the State of Maine for a vacation. One day during that holiday inclement weather foiled their plans, so the Shula family went to a local theater to enjoy a movie. As they entered, the house lights were still on, enabling them to see that there were just a few moviegoers scattered through the theater. Naturally, those already seated took note of the new arrivals. As the Shula family took their seats, clapping of hands rose to a swell of applause. Don turned to his wife as the clapping continued and said, “Isn’t it nice that they know and appreciate me here, all the way up in the State of Maine?” One of the patrons then approached Mr. Shula and extended his hand. Don rose and shook the man’s hand, saying, “Hi, I’m Don Shula. My family and I sure appreciate the warm welcome.” The man replied, “We don’t care who you are mister, but we’re sure glad that you and your family came, because just before you walked in the theater manager announced that if seven more customers didn’t show up there would be no movie.”

James S. Ehmann bon mots THE BULLETIN ! 77 IN MEMORIAM

In this issue we note the passing of forty- ve Fellows ranging in age from sixty-one to one hundred, twenty-six of them eighty or older. Eighteen are known to us to have been veterans of World War II. They include two who were wounded, one in Normandy, one who was involved in the Battle of the Bulge and the Battle at Remagen Bridge, one who participated in the daring rescue of Doolittle’s Raiders from behind enemy lines, one who helped to pioneer the use of helicopters in warfare and one artillery of cer who helped revolutionize mountain warfare in the war in Italy. They came home with an array of battle stars and medals, including a French Croix de Guerre, an Italian Cross and a Chinese Order of the Flying Star. One was a liaison to the French Army and one was reputed to be the youngest major in the U.S. Army at age 23. Four more are known to us as veterans of the Korean Con ict and another six have served in peacetime. We have lost Fellows who defended clients ranging from Jimmy Hoffa to Dan Rather, the judge who was designated to try Ku Klux Klan and Nazi members involved in a 1979 incident of racial violence, past presidents of the American Judicature Society and the Canadian Bar Association and a ninety-one year old retired patent attorney who had the foresight to acquire additional schooling in electronics and ultra high frequency after law school before most people had ever heard those terms. The funerals of at least two were marked by  ags  own at half mast in their home states. Aside from their legal careers, one was a polio victim who overcame his handicap to earn four college letters and pitch a no-hit, no-run baseball game, one who was a Big 8 Conference of cial in thirteen bowl games, one who had published forty-seven book reviews in his local paper left a collection of four thousand books and one who scripted case scenarios for “Miller’s Court.” Finally, one ninety- ve year old was named for an uncle who was a drummer boy in the Civil War! We continue to struggle to collect information about older Fellows, particularly those who in retirement lose touch with their old law  rms. Undoubtedly some of those have stories as compelling as the ones we recite here. We continue to need your help in this respect.

William N. Avera (75), Avera & Smith, International Academy of Trial Lawyers. LLP, Gainesville, Florida died January His survivors include his three children. 7, 2009 in an automobile accident at age 81. Upon graduating from high school Hon. Grif n Boyette Bell, (77), Atlanta, during World War II, he immediately Georgia, a past president of the College, joined the U.S. Navy. After the war, he died January 5, 2009. His obituary may attended undergraduate and law school be found elsewhere in this issue of The at the University of Florida. Representing Bulletin. principally plaintiffs, he had served as President of the Academy of Florida Trial Raymond W. Bergan (74), a retired partner Lawyers and was also a Fellow of the in Williams & Connolly, Washington,

78 ! THE BULLETIN D.C., died May 2, 2008 of stomach cancer Emile R. Bussiere (89), Bussiere at age 77. A graduate of Holy Cross & Bussiere, PA, Manchester, New College in Worcester, Massachusetts and Hampshire, died October 26, 2008 at age of Georgetown Law School, he served 76. A graduate of St. Anselm College and three years as a JAG of cer in the United Boston College Law School, he had run for States Army. A friendly, likeable 6’ 5” governor of New Hampshire in 1968. He lawyer, he was regarded inside his  rm as had also served on the President’s Export a phenomenal mentor of younger lawyers. Council. His survivors include his wife, In  ve decades as a lawyer, his practice Joan, one son and four daughters. ranged from representing former Teamster leader Jimmy Hoffa and other labor John Joseph Carlin (82), a Fellow Emeritus leaders and Fairfax County politicians in a retired from Carlin, Helistrom & Bitner, notorious 1960s bribery case to the defense Davenport, Iowa, died June 4, 2008 at age of a major auto distributor in a series 75 after a brief illness. A graduate of St. of two dozen dealer lawsuits. He had Ambrose College and of the University served as a board member of Marymount of Iowa Law School, he served in the U.S. University and of the Opera Theater of Army Golden Missile Division during Northern Virginia. His survivors include the Korean Con ict. He had served two his wife, Mary Elizabeth, three daughters terms on the Iowa State Bar Board of Law and a son. Examiners and on several civic boards. His survivors include his wife, Joanne, a Glenn A. Burkart (71), Burkhart & Hunt, son and three daughters. Spring eld, Missouri, died November 22, 2008 at age 86. A graduate of the Andre P. Casgrain, Q.C. (83), Cain Lamarr University of Missouri and of its law Casgrain Wells. Rimouski, Quebec, died school, his education had been interrupted October 23, 2008. He was born in 1924. by World War II, in which he served in the Educated at Lavalle University, he took his U.S. Army. After nineteen years of practice law degree at McGill University. he was appointed to the circuit court of Greene County. He later returned to Edmund N. “Ned” Carpenter, II (69), private practice. He had been president of retired from Richards, Layton & Finger, the Missouri Bar Foundation and had been Wilmington, Delaware, died December 18, active in a variety of civic and charitable 2008 at age 87 after a three-year struggle organizations. A widower, his survivors with pulmonary  brosis. He was the son include a son and a daughter. of the  rst person outside the DuPont L

THE BULLETIN ! 79 family to be president of DuPont. A founding board member of Stand Up for graduate of Princeton, of which he was a What’s Right and Just, an organization trustee emeritus, he entered the Army in that advocates reform in the criminal World War II as a private and emerged a justice system. He was a quiet, often captain. Working in military intelligence, anonymous philanthropist and a frequent he participated in covert rescue missions author of letters to newspapers, arguing  own in Dien Bien Phu, formerly French passionately for things he believed in, Indo-China. He was part of a small team such as the repeal of mandatory minimum that rescued the celebrated downed sentences for drug offenses. Indeed, his Doolittle Raiders who had been trapped letter urging the decriminalization of behind enemy lines following Pearl drugs was published a week before his Harbor. He was awarded a Bronze Star, death. As a lawyer, he was known for the Soldiers Medal and the Chinese Order taking on unpopular causes. The citation of the Flying Cloud. After Harvard Law when he was awarded the American Inns School, he began his career in 1949. He of Court Professionalism Award in 2003 retired from active practice in 1991. In concluded, “In Delaware, the benchmark the intervening years, he had returned to would be to become ‘as professional service during the Korean Con ict, had as Ned Carpenter.’” At his death, the served once as a state Deputy Attorney Delaware Supreme Court ordered all state General and later as a Special Attorney courthouse  ags in the state to be  own General, as president of the Delaware at half-staff and the Wilmington News and Bar Association and as president of the Journal began its tribute: “Even if they American Judicature Society, which never heard of him, countless Delawareans awarded him its Justice Award. He helped owe a lot to Ned Carpenter.” His to create and was the  rst chair of a survivors include his wife, Carroll, four judicial selection committee that changed daughters and two sons. the way Delaware chose its judges. In 1991, the year he retired from practice, he Richard M. Clinton (87), Seattle, chaired a bar committee that examined Washington, died December 22, 2008 of the problem of unprofessional and melanoma at age 67. A graduate of the uncivil conduct by lawyers and drafted a University of Wisconsin and of its law Statement of Principles of Lawyer Conduct school, he had earned a masters degree in that was endorsed by the Delaware tax from George Washington University. Supreme Court. He was three times chair He had worked at the U. S. Department of the College’s Delaware State Committee. of Justice and with the Seattle  rms Bogle Years after his retirement he was a & Gates and Dorsey & Whitney, where

80 ! THE BULLETIN he was a litigation partner with a widely Nova Scotia Barristers Society, chaired varied practice. His survivors include his the committee that led to the introduction wife, Barbara, and three daughters. of Provincial Legal Aid in Nova Scotia and was for ten years chair of the Law John W. Condon (75), a Fellow Emeritus Foundation of Nova Scotia. He was a from Hamburg, New York, who had founding director and president of the practiced with Condon, LaTona & Pieri, Law Societies of Canada. He served for PC, in Buffalo, died January 14, 2009 as several years as a member of the Canadian the result of an automobile accident at age Bar Association Council and then served 86. His wife also died in the accident. A as president of the CBA. He was also an veteran of World War II, he had graduated honorary member of the American Bar from Canisius College, from which he had Association. He was the  rst recipient received a distinguished alumni award, of the Distinguished Service Award of and Albany Law School. A founding the Nova Scotia Branch of the Canadian member of the National Association Bar Association and was a recipient of of Criminal Defense Attorneys, he had the Queen’s Golden Jubilee Medal. He represented diverse clients, including the had served as an elder and chairman of Allman Brothers Band, in numerous high- the stewards of his Presbyterian church. pro le cases. He had served Acadia University as a member of the executive committee of Arthur William Cox, Q.C. (77), a Fellow its Board of Governors. In politics, he Emeritus, retired from Cox, Downie was for ten years treasurer of the Nova & Goodfellow, Halifax, Nova Scotia, Scotia Progressive Conservative Party and died October 8, 2008 at age 87. After a past vice-president of the Progressive graduating from Acadia University, he Conservative Association of Canada. In served in the Canadian Army in World his later years he wrote a column for his War II. Wounded in combat in Holland, local newspaper. His survivors include his he served as a battle eld instructor in wife, Margie, and four daughters. England for the remainder of the war. He began his legal education at New College, Douglas Danner (82), a Fellow Emeritus Oxford and completed his law degree at retired from Powers & Hall, PC, Boston, Dalhousie Law School. He later served died March 29, 2008 at age 83. He was a in the Canadian Militia with the Princess graduate of Harvard University and of Bos- Fusiliers, attaining the rank of lieutenant ton University Law School. His survivors colonel at age 34. Made a Queens Counsel include his wife, Mary, and two sons. in 1965, he served as president of the L

THE BULLETIN ! 81 Charles Donelan (77), a Fellow Emeritus over a seven year period. After that, from Boston, died November 12, 2008 of he practiced law with Hamilton and complications from Parkinson’s disease Hamilton until he was appointed U.S. at age 77. A graduate of Yale, he had Attorney by President Nixon in 1969. He served as a submarine of cer before was then appointed to the federal bench attending law school at Georgetown. in 1951. He presided over many celebrated After law school, he began working at trials, including the criminal trial of the Department of Justice under Attorney former Reagan White House adviser Lyn General Robert Kennedy, principally Nofziger and that of a District of Columbia trying antitrust cases. In private practice judge charged with accepting an illegal in Worcester, Massachusetts, he had taken gift while on the bench. His civil cases the cases of unpopular defendants such included a $1.5 billion oil price scam as conscientious objectors in the Vietnam judgment against Exxon and the dismissal era. He had headed the Worcester of a suit by the parents of a premature Chamber of Commerce. In 1982, he moved baby who had contracted HIV from a to the Boston area to found an of ce of blood transfusion. In 1983 and 1984 he Day Berry & Howard (now Day Pitney) was sent to North Carolina on special Connecticut’s largest law  rm. There he assignment to try the nine Nazis and Ku had an international practice centered Klux Klan members charged with civil on the European reinsurance market. A rights violations after a 1979 Klan rally in widower, he is survived by three sons and Greensboro turned violent. A widower, a daughter. Judge Flannery is survived by a son and a daughter. Hon. Thomas Aquinas Flannery (68), retired United States Judge for the District Richard W. Galiher (53), a Fellow of Columbia, died September 20, 2007 at Emeritus retired from Galiher, Clarke age 89. The son of a carpenter, he studied & Galiher, Chevy Chase, Maryland, law at night without going to college, died October 30, 2008 at age 95. An graduating in 1940 from Columbus undergraduate and law graduate of the University Law School, now a part of Catholic University of America, where Catholic University. He served as a he lettered in baseball and basketball, combat intelligence of cer in the Army he was named for an uncle who was Air Force in Europe in World War II. After a drummer boy in the Civil War who the war he was in private practice before is buried at Arlington Cemetery. In a becoming an Assistant U.S. Attorney, career that spanned over  fty years, he trying more than three hundred cases had practiced in both Maryland and the

82 ! THE BULLETIN District of Columbia. His most notable a vice-president of the Lawyer-Pilots Bar cases include representing the trustees of Association and a member of the executive President Richard Nixon’s 1972 re-election committee of the International Association campaign and representing Eastern of Insurance Counsel. Airlines in lawsuits arising from a fatal 1949 crash at Washington National. He Loyal H. Gregg (72), Pittsburg, had been president of the Bar Association Pennsylvania, a Fellow Emeritus long of the District of Columbia, whose Lawyer retired, died February 7, 2005 at age of the Year Award he received in 1975. He 86. He was a graduate of Washington & served in the ABA House of Delegates Jefferson and of the University of Pittsburg and was a past chair of the ABA Tort Law School. and Insurance Practice Section. He had also been president of the International William O. Guethlein (79), a Fellow Association of Defense Counsel. Active Emeritus, retired from Boehl, Stopher & in many professional, religious and social Graves, and later of counsel to Phillips, organizations, he was a former director Parker, Orberson & Moore, Louisville, of the Legal Aid Society of the District Kentucky, died February 4, 2009 at age 81. of Columbia and general counsel of A veteran of World War II, he attended the International Association of Chiefs the University of Louisville thereafter, of Police. He was a past chairman of along the way working as a lifeguard, the board of trustees of his alma mater, a bartender, a  oor-walker in a ladies Catholic University, which had conferred clothing store and an apprentice glass on him its Alumni Achievement Award, blower. He had defended many high- a Distinguished Service Award, the pro le professional liability and product President’s Medal, the James Cardinal liability cases. His survivors include a son Gibbons Medal and an honorary degree. A and a daughter. widower, his survivors include a son and four daughters. H. Martin Hunley, Jr. (77), a Fellow Emeritus from New Orleans, died August Michael R. Gallagher (64), Chagrin Falls, 23, 2005 at age 87 after a long illness. A Ohio, retired from Gallagher, Sharp, high school valedictorian at age  fteen, Fulton & Norman, Cleveland, Ohio, died he completed undergraduate school at October 27, 2007 at age 85. Educated at Louisiana State University at nineteen. Kent State University and the University An Army of cer, he served as a liaison of Michigan School of Law, he had been a of cer with the French Army in World director of the Defense Research Institute, L

THE BULLETIN ! 83 War II and was awarded the Croix de Virginia. He had received an honorary Guerre. Discharged as a Major, he was Doctor of Laws degree from Shenandoah valedictorian of his law class at Tulane, University. His survivors include his wife, editor of his law review and a Member Elizabeth, and two sons. of the Order of the Coif. He had last practiced with Lemle & Kelleher, LLP in Franklin Jones, Jr. (72), Marshall, Texas, New Orleans. He was a past president died December 18, 2008 at age 77. A of the New Orleans Bar Association and graduate of the University of Texas and a past member of the Louisiana State of its law school, he practiced his entire Bar Association House of Delegates. A career in a  rm founded by his grandfather widower, his survivors included  ve sons in the late 19th Century in which his father and two daughters. had also practiced. He had served as president of his local and regional bars and William L. Jaeger (98), retired from was the 100th president of the State Bar of Townsend, Townsend & Crew, San Texas. He had served for eighteen years Francisco, California, died January 11, on the Texas Supreme Court Advisory 2009 at age 65 of cancer. A graduate of Committee and for three years on that Santa Clara University, where he was court’s Grievance Oversight Committee. president of the student body, and of the He had served as the Texas State Bar University of California’s Boalt Hall, he Delegate in the ABA House of Delegates began his career in the Antitrust Section of and as a member of the governing council the United States Department of Justice. of the ABA Litigation Section and as a His survivors include his wife, Julie, two trustee of the Texas Center of Ethics and daughters and a son. Professionalism and of the University of Texas Law School Foundation. In 2004 William A. “Pete” Johnston (79), Harrison he received the Texas Bar Foundation’s & Johnston, Winchester, Virginia, died Fifty-Year Lawyer Award. Also active in December 24, 2008 after a brief illness civic affairs, he was the Marshall Chamber at age 79. A destroyer of cer in the of Commerce’s Citizen of the Year in Korean Con ict, he was a graduate of 2002. His survivors include a son and a Rice University and of the University of daughter. Virginia Law School. He was for thirty-  ve years chairman of the board of Valley James L. Magee (91) Graham & Dunn, Health System and Winchester Medical Seattle, Washington died October 24, Center and had served on the standing 2008.after a multi-year battle with non- committee of the Episcopal Diocese of Hodgkin’s lymphoma at age 74. He was

84 ! THE BULLETIN a graduate of the University of Wisconsin, John A. McClintock, (81), Hanson, majoring in Russian. After graduation, McClintock & Riley, Des Moines, Iowa, he entered the United States Air Force, died October 23, 2008. Born in Des Moines became a jet pilot and then  nished his July 5, 1931, he was a graduate of Grinnell three-year tour of duty as an Intelligence College and of the University of Iowa Of cer in the Strategic Air Command. Law School. Between undergraduate and After Harvard Law School, he joined the law school he had served in the United Seattle  rm Graham & Dunn. A Fellow States Army Counterintelligence Corps of both the College and the International during the Korean Con ict. The owner Society of Barristers, he served on a of a sporting goods store as well as being number of College committees and a  fty-year trial lawyer, for twenty-two was for two years chair of the College’s years he was a football of cial in the Professionalism Committee. He was an Big 8 Conference, during which time avid participant in outdoor sports and had he of ciated in thirteen bowl games. served four terms as Senior Warden of his He later served as supervisor of Big 8 Episcopal church. His survivors include football of cials. He was a past president his wife, Rose, two sons and a daughter. of his local bar, the Iowa Academy of Trial Lawyers and the Iowa State Bar Hon. Kenneth McNeill Matthews (77), Association. He was the recipient of the a Fellow Emeritus from Truro, Nova Award of Merit given by his state bar and Scotia, died September 28, 2008 at age of the  rst annual Amicus Curiae Award 86. He served as a pilot of cer and  ight given by the Iowa Supreme Court. A instructor in the Royal Canadian Air Force Shriner, he was heavily involved both in in World War II, then took his law degree Iowa and nationally in that organization’s at Dalhousie University Law School. He sponsorship of high school football all-star was appointed Queens Counsel in 1964. games. He was also an ordained elder of After thirty-six years in private practice, he Westminster Presbyterian Church. His was appointed to the Nova Scotia Court of survivors include his wife, Beverly, two Appeal in 1985, on which he served until daughters and two sons. his retirement in 1997. He had served as President of the Nova Scotia Barristers Dugald S. McDougall (62), a Fellow Society and had been the Canadian chair Emeritus resident in Haines City, Florida, of the International Society of Barristers. died September 15, 2007 of heart failure at He has served for thirty years as a trustee age 91. A retired Chicago patent attorney of his church. A widower, he is survived and philanthropist, he was a graduate of by a son and three daughters. L

THE BULLETIN ! 85 the University of Chicago undergraduate Ray H. Moseley (75) a retired attorney and law schools who had studied and judge, died October 12, 2008 at age electronics and ultra high frequency 87 of complications from heart disease. A techniques at Harvard and MIT. He was a graduate of the University of Tennessee naval of cer in World War II. A widower Law School, where he was editor of his who had remarried, his survivors also law review, he had been a Navy  ghter include four sons. pilot and  ight instructor in World War II, serving in the Atlantic, Caribbean and Hon. Flake L. McHaney (69) a Judicial American Theaters. A member of an Fellow retired from the 35th Judicial Circuit experimental squadron set up to study the Court in Kennett, Missouri, died November effectiveness of helicopters in combat, he 23, 2008 of respiratory complications. earned the thirty-eighth helicopter license After graduating with distinction from in the world. He served on President the University of Missouri, he served as Truman’s staff at the South American an operations of cer, 347th Field Artillery Peace Conference in 1947. After beginning Battalion, with the 91st Infantry Division his practice at the new city of Oak Ridge, in North Africa and Italy in World War he moved to Chattanooga. After many II. In Italy, he helped to revolutionize years in Chattanooga with Hutcheson, mountain warfare techniques. When he Moseley, Pinchak & Powers, he moved to was promoted to the rank of major at age Knoxville and joined his son’s  rm, Lacy & 23, he was believed to be the youngest Moseley. He had served on the Tennessee ever to reach that rank. He received the Court of the Judiciary. He was Honorary Legion of Merit, a Bronze Star and the Chairman of the National Medal of Honor Italian Cross. Graduating from Harvard Museum and an elder in his Presbyterian Law School, he practiced law in Kennett Church. His survivors include his wife, until his appointment to the bench in 1972. Lois Virginia, three sons and a daughter. A member of the American Law Institute, he was also a member of the American Hon. Howard G. Munson (72), a Judicial College of Trusts and Estates Counsel and Fellow who was a retired United States had served on the Board of Governors of District Judge in Syracuse, New York, died the Missouri Bar, as well as in a variety of October 5, 2008 at age 84. Graduating civic and charitable organizations. He had from high school at 16, his education received an Alumni Service Award from the at the University of Pennsylvania was University of Missouri College of Arts and interrupted by World War II. Wounded in Sciences. His survivors include his wife, the invasion of Normandy, he recovered Ada, and two sons. and rejoined his division, the US Army’s

86 ! THE BULLETIN 79th, in time to march through France, been president or chair of such diverse Holland, Belgium and into Germany and organizations as the Lakes Region General Czechoslovakia, returning with four battle Hospital, The Spaulding Youth Center, the stars, a Bronze Star and a Purple Heart Laconia School Board, the New Hampshire to  nish his undergraduate education at Social Welfare Council and the local United Penn. After graduating from law school Way. A widower, he is survived by a son at Syracuse University, he practiced law in and a daughter. Syracuse for twenty-four years. He had served as president of the local board of Norman Anthony Palmiere (82), Rochester, education, as chair of the board of a local New York, died November 2, 2008 at age 74 television station and in many other civic after a brief illness. A graduate of St. John endeavors. Appointed to the bench by Fisher College and Syracuse University President Gerald Ford in 1976, he later College of Law, he began his career as an served as chief judge for eight years, took assistant district attorney. Known for his senior status and retired after thirty-one willingness to take on unpopular cases, years of service. A widower, his survivors he had tried many high-pro le tort cases include two sons and a daughter. representing plaintiffs as well as defending a number of notable criminal cases. In 1989 Arthur H. Nightswander (69) a Fellow he became the  rst recipient of the Robert Emeritus from Laconia, New Hampshire, C. Napier Award presented by Criminal whose career spanned seventy years, Defense League for outstanding achievement died December 8, 2008 at age 100. He had in advocacy of the rights of the accused. His practiced in Laconia with Nightswander survivors include his wife, Mary, and  ve Lord Martin & Killkellay and then in sons, three of whom are lawyers. Hanover with Stebbins, Bradley, Wood and Harvey. A general practitioner, he had John G. Poust (67), a Fellow Emeritus appeared in the United States Supreme from Lake Forest, Illinois, retired from the Court arguing cases involving freedom of Chicago  rm Rooks, Pitts & Poust, died speech and assembly. A past president of July 27, 2008 at age 87. He was a graduate the New Hampshire Bar, he had received of Northwestern University and of its its distinguished service award, as well law school who had once served as the as an award from the New Hampshire College’s Upstate Illinois State Chair. Civil Liberties Union. He had chaired the College’s New Hampshire State Richard Ayres Reid (76), a Fellow Committee. A founding member of the Emeritus retired from Royston, Mueller, New Hampshire Music Festival, he had L

THE BULLETIN ! 87 McLean & Reid, Towson, Maryland, died February 2, 2008 of cancer at age 81. A died December 15, 2008 of complications graduate of the U.S. Merchant Marine Acad- following a stroke at age 77. A graduate emy and of Temple University Law School, of Yale and the University of Virginia Law he was a retired lieutenant commander in School who had served as a JAG of cer the U.S. Naval Reserve. Earlier in his career, in the Navy, he specialized in eminent he had been the managing partner in La- domain cases. His survivors included two Brum & Doak. He had served as chairman of sons and a daughter. the Defense Research Institute, as president of the Pennsylvania chapter of ABOTA and Kent Jay Rubens (04), Rieves, Rubens & as president of the Association of Defense Mayton, West Memphis, Arkansas, died Trial Lawyers. His survivors include his November 5, 2008 of a cerebral aneurism wife, Katy, a daughter and two sons. at age 61. He was a graduate of the University of Arkansas and of its law Hon. Edward L. Ryan (62), a retired school, where he was a member of the law Circuit Court Judge for the City of review. He had clerked on the Arkansas Norfolk, Virginia, died September 18, 2008 Supreme Court and had served in the at age 95. Educated at the University of state legislature for six years. A member Richmond and the University of Virginia of both the College and ABOTA, he has Law School, he was an of cer in the U.S. been president of his local bar and in 1989 Navy in World War II. He had practiced had served as Special Chief Justice of the with White, Ryan & Reynolds before Arkansas Supreme Court. The College going on the bench in 1968 and had been became aware of his cerebral accident president of his local bar and a member through a series of emails to Arkansas of the Council and of the Executive Fellows and ABOTA members sent during Committee of the Virginia State Bar. He a four-day vigil during which he was had contributed forty-seven book reviews being kept on life support until his wife to his local paper and left a collection of arrived from a trip abroad, the  nal email four thousand books. A widower, his ending, “Our dear friend, Kent Rubens, survivors include two daughters. became an organ donor today.” His survivors include his wife, Belinda, and Peter J. Samuelson (79), a Fellow Emeritus her two children. from Santa Barbara, California, born in 1938, died November 16, 2007. Daniel J. Ryan (78), a Fellow Emeritus, re- tired from Ryan Brown McDonnell Berger Marshall Simonds (77), a Fellow Emeritus & Gibbons, PA, Philadelphia, Pennsylvania, living in Morrisville, Vermont, died

88 ! THE BULLETIN October 1, 2008 at age 78. A graduate of teach at Oral Roberts University Law Princeton and Harvard Law School, he School, a year later becoming Mr. Roberts’ had a forty- ve year career with Goodwin personal lawyer. Five years later he moved Procter, LLP in Boston. He had served to Virginia Beach, Virginia to help establish as general counsel to the Massachusetts the National Legal Foundation, founded Crime Commission and special counsel by Pat Robertson, of which he became to the Boston School Committee. He had executive director. In the mid-nineties he lectured and taught trial skills at Harvard had moved to Roanoke, Virginia, where he Law School and had moderated and was a partner in Scogin & Skolrood until presented case scenarios for Boston Public his retirement. His survivors include his Television in a series called “Miller’s wife, Marilyn, two sons and a daughter. Court.” He had a lifelong dedication to Labrador retrievers and was the owner George Rogers Clark Stuart (70), a Fellow of thirteen  eld champion dogs. He was Emeritus, retired from Penn, Stuart, a delegate to the National Kennel Club, a Eskridge & Jones, Abingdon, Virginia, judge and competitor for over forty years died August 23, 2008 at age 83. His in Labrador  eld trials and a member of education at Hampden-Sydney College the Field Trial Hall of Fame. His survivors interrupted by World War II, he served include his wife, Katharine, three sons and in the 1st Infantry Division in Belgium a daughter. and Germany, participating in the Battle of the Bulge and the Battle at Remagen Robert Kenneth Skolrood (78), a Fellow Bridge. After the war, he  nished his Emeritus died February 20, 2008 in Venice, undergraduate education at Williams Florida, to which he had retired, of cancer College and began his legal education at of the kidney at age 79. Long known Oxford, where he earned both bachelors for his representation of fundamentalist and masters degrees, then graduated from Christians on issues that included nativity the University of Virgina Law School, displays, gay rights, school prayer and where he was a member of the editorial secular humanism, he was a graduate board of the law review. He began his of Ohio Wesleyan University. He had practice in Lebanon, Virginia, then moved served two years in the U.S. Army during to Abingdon. He served two terms in the Korean con ict, rising to the rank of the Virginia House of Delegates and sergeant. Graduating from the University was a past president of the Virginia Bar of Chicago Law School, he practiced in Association. Active in many business Rockford, Illinois for twenty-three years. and civic endeavors and in his church, he He then moved to Tulsa, Oklahoma to L

THE BULLETIN ! 89 had for many years served as attorney for more children, one of who predeceased him. the Industrial Development Authority of In addition to his wife, his survivors include Washington County. His survivors include three sons and two daughters. his wife, Mary, two daughters, a stepson and a stepdaughter. Alexander “Sandy” Wellford (83) a Fellow Emeritus retired from Christian William W. Vaughn (75), O’Melveny & & Barton, LLP, Richmond, Virginia, died Myers, LLP, Los Angeles, a former Regent of December 31, 2008 at age 78 after a long the College, died of cancer January 3, 2009 illness. Educated at the University of at age 78 at his Paci c Palisades home. A Virginia, both undergraduate and law graduate of Stanford and UCLA Law School, schools, he had served in the U.S. Army where he was associate editor of the law in post-World War II Germany. A member review and a member of the Order of the of the Order of the Coif, he had served Coif, he had served in the U. S. Army after as a law review editor. His practice had law school. Specializing in complex cases, he included a wide variety of business and had successfully defended a number of First labor and employment cases. Representing Amendment cases, including defending CBS the Richmond Newspapers, Inc., he had and the Smothers Brothers and successfully participated in many First Amendment defending Dan Rather in a celebrated libel cases, including laying the groundwork at case growing out of a Sixty Minutes segment the trial court level for Richmond Newpapers on insurance fraud. He had also successfully v. Virginia, the seminal U.S. Supreme defended a massive antitrust case against Court case that established the public’s IBM. Described by his partner, former right of access to court proceedings. He Secretary of State Warren Christopher, as had received the George Mason Award a mentor of a generation of trial lawyers, from the Virginia Society of Professional he had chaired O’Melveny’s litigation Journalists. An avid  sherman and duck department for seven years. He had also hunter, he was a trustee emeritus of Ducks served in many leadership positions in his Unlimited. His survivors include his wife, local bar and had chaired the ABA Litigation Georgiana, three sons and a daughter. Section’s Committee on First Amendment and Media Litigation. In 1991, he had John D. Winner (78) a Fellow Emeritus received the American Jewish Committee’s retired from Winner, Wixson & Pernitz, Learned Hand Award for Outstanding Madison, Wisconsin, of which he was a Professional Achievement. In 1962 he had founding member, died July 7, 2007 at married Claire, a recent widow with three age 85. A graduate of the University of young children, and together they had three Wisconsin, where he was class president, he

90 ! THE BULLETIN served three years in the US Army infantry once pitched a no-hit, no-run game and in World War II, earning a Bronze Star. in his senior year had a 7-0 record. Over Retaining his military status after graduating a stretch of twenty-four years, he saw from law school and beginning the practice every single World Series game. A former of law, he returned to active duty during president of his local Bar, he had held the Berlin Crisis of 1961-62, serving as Staff numerous positions at the state bar level Judge Advocate in the 32nd Infantry Division and had chaired the Colby College Alumni and retiring thereafter as a lieutenant Council and served as a Colby College colonel. He had also served as district overseer. He had coached a variety of attorney and as a Deputy Attorney General youth baseball teams over a span of eleven for the State of Wisconsin. He had received years and had chaired the College’s Maine a Certi cate of Commendation from the State Committee. His survivors include his Governor of Wisconsin for his years of wife, Rita, a daughter and a son. service in the legal profession. His survivors include his wife, Marcelaine, and two sons. F. Thomas Young (81) an Emeritus Fellow, retired from Young, Thagard, Hoffman, Carl Roger Wright (68), a Fellow Emeritus Scott & Smith, died October 26, 2008 at age of Wright & Mills, PA, Skowhegan, Maine, 73. A graduate of the University of Georgia died December 5, 2008 at age 83. A Law School, he was a member of both the graduate of Colby College and the Boston Georgia and Florida Bars and had served University Law School, he was a polio on the Board of Governors of the Georgia victim who had overcome his disability Bar. His survivors include his wife, Debbie, to win four varsity letters in College, two three sons and two daughters. in basketball and two in baseball. He

Philomene Asher “Phil” Gates, New York, New York, widow of Samuel E. Gates, who died a few weeks before he was to become president of the College and for whom the Samuel E. Gates Litigation Award is named, died February 17, 2009 at age 90. For years she had regularly attended the College meetings at which the award was given. A lawyer herself, a published author and a person of boundless energy and enthusiasm, active in many community and civic causes, including the New York Legal Aid Society, she remained a loyal supporter of the College all her life. Her son-in-law reported that she died of natural causes and that “the heavy burden of her health problems, which she refused to let get in her way,  nally took their toll. . . . She collapsed and died . . . while dressing to go to a cocktail party at the Century—for Phil, the equivalent of ‘dying with her boots on.’” A memorial service has been scheduled for May 11, 2009 at St. James Episcopal Church in New York City.

THE BULLETIN ! 91 PRSRT STANDARD T H E BU L L E T I N U.S. POSTAGE of the PAID SUNDANCE PRESS AMERICAN COLLEGE OF TRIAL LAWYERS 85719 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612

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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  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

92 ! THE BULLETIN