THE BULLETIN College Creates Award to Honor Justice O’Connor

NUMBER 58 winter 2008

THE BULLETIN college creates award to honor Justice O’Connor

Retired Supreme Court Associate Jus- tice and Honorary Fellow Sandra Day O’Connor was present at the Annual Meeting in Denver to acknowledge and accept the College’s creation of the San- dra Day O’Connor Jurist Award.

The College will present this award from time to time to a judge, federal or state, from the United States or Canada who has demonstrated exemplary judicial independence in the performance of his or her duties, sometimes in difficult or even dangerous circumstances.

The Board of Regents chose to honor O’Connor in this way in recognition of her twenty-four year tenure on the Su- preme Court as its first female member and for her exemplary record of public service.

A medal bearing her likeness will be presented to each future O’Connor Jurist recipient. During the ceremony, O’Connor was also presented with a sculptured likeness of her, created by Past President Warren Lightfoot. She has since donated that bust to the Su-

Con’t on page 20

This Issue: 64 Pages In This Issue Letter to the Editorial Board I read with interest your article about the vanishing civil trial (Opinion: Before We Jump by E. Os- borne Ayscue, Jr., Summer 2007). I am familiar with issues that you mentioned and I have made several speeches about this over the last several years. It is surprising to me that the trial bar does not seem to be particularly concerned about what is happening. We are beginning to see lawyers with 10-15 years experience that call themselves trial lawyers and do not have a clue what they are doing in a courtroom.

You hit on the point that I believe is the core of the problem. Because there are so few experienced trial attorneys, the Bench is beginning to be occupied by judges who have zero experience in the management of a trial/case. These judges simply cannot see the discovery abuses and the excessive motion practice and do not understand that the purpose of the rules of civil procedure is to sim- plify trial preparation. The rules which eliminated ‘fact pleading’ and embraced ‘notice pleading’ will only work under the supervision of a trial judge who understands and manages the pre-trial. I do not know if it is too late to stop the train, but let’s keep trying.

Alex W. Newton Birmingham, Alabama

in this issue

O’Connor Jurist Award Created...... Cover Upcoming national meetings...... 29 Letter to the Editor...... 2 Life cycles and the Beatles’ music...... 30 From the Editorial Board...... 3 Retiring Regents and Chairs...... 35 Denver Annual Meeting...... 4 Speakers debate global warming ...... 36 Past President Lightfoot: Sculptor...... 7 Justice Charron made Honorary Fellow...... 40 O’Connor: Judges Must Be Independent..... 8 In Memoriam ...... 44 Robinson made Honorary Fellow...... 11 Student competition winners honored...... 50 College elects new Officers and Regents..... 12 Your College website listing...... 51 Robinson: The Rule of Law and Terrorism. 13 Meet your new Regents...... 52 College inducts 94...... 18 Gumpert Award aids refugee and Profile: John G. Corlew...... 22 immigrant children...... 54 Diamond on Jurors...... 24 Awards, Honors and Elections ...... 57 Phyllis Cooper: Last charter member dies... 29 Chief Judge extols legal exchanges...... 58

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

w THE BULLETIN American College of Trial Lawyers F r o m t h e The Bulletin E ditorial Board

Chancellor-Founder In this issue we feature the College’s annual meeting Hon. Emil Gumpert (1895-1982) in Denver. As usual, the speakers provided those in attendance with much to think about, and we Officers have attempted to make available to all the Fellows Mikel L. Stout, President John J. (Jack) Dalton, President-Elect who could not be there the substance of all the Gregory P. Joseph, Secretary presentations. Joan A. Lukey, Treasurer David J. Beck, Immediate Past President In keeping with our past practice, we have therefore Board of Regents quoted liberally from all the presentations and have David J. Beck Christy D. Jones Houston, Texas Jackson, Mississippi reprinted virtually verbatim two, those of Justice Paul D. Bekman Gregory P. Joseph Sandra Day O’Connor and new Honorary Fellow Baltimore, Maryland New York, New York Mary Robinson. J. Donald Cowan, Jr. Philip J. Kessler Greensboro, North Carolina Detroit, Michigan John J. (Jack) Dalton Joan A. Lukey At the workshops last Fall, the state and province Atlanta, Georgia Boston, Massachusetts chairs were asked to appoint correspondents who Michel Decary, Q.C. Paul S. Meyer Montreal, Canada Costa Mesa, California could report their activities to us for possible publi- Francis X. Dee John S. Siffert cation. We have heard from one State Committee Newark, New Jersey New York, New York that has appointed someone to do so. That leaves Bruce W. Felmly Mikel L. Stout Manchester, New Hampshire Wichita, Kansas only sixty states and provinces to go! Paul T. Fortino Robert W. Tarun Portland, Oregon Chicago, Illinois Recently, we solicited writers for the Bulletin. Since Phillip R. Garrison John H. Tucker Springfield, Missouri Tulsa, Oklahoma then, we have found a volunteer who will take over Robert A. Goodin Chilton Davis Varner writing one of our most well-received features, the San Francisco, California Atlanta, Georgia obituaries of deceased Fellows, in the next issue. Editorial Board E. Osborne Ayscue, Jr., Charlotte, North Carolina, Chair Susan S. Brewer, Morgantown, West Virginia, Vice Chair Some of you have asked how we go about putting James J. Brosnahan, San Francisco, California Andrew M. Coats, Norman, Oklahoma the rest of the Bulletin together. First, we look for Michael A. Cooper, New York, New York possible subjects for feature articles, which Editor Patricia D. S. (Trisha) Jackson, Toronto, Ontario Timothy D. Kelly, Minneapolis, Minnesota Marion Ellis then writes. Marion was a co-author Hon. Garr M. King, Portland, Oregon Warren B. Lightfoot, Birmingham, Alabama of Sages of Their Craft, the fifty-year history of the Simon V. Potter, Montreal, Quebec Conrad M. Shumadine, Norfolk, Virginia College published in 2000. He knows the College Michael A. Williams, Denver, Colorado G. Gray Wilson, Winston-Salem, North Carolina well. Many of you have met him at College meet- (J. Donald Cowan, Jr., Greensboro, North Carolina, Regent Liaison) ings and indeed many of our story ideas came from

Marion A. Ellis, Editor conversations he had with some of you. Telephone: 704.366.6599 Emails: [email protected], [email protected] Liz Doten, Art Direction and Design The articles reporting most of the presentations at Email: [email protected] our national meetings that involve legal subjects American College of Trial Lawyers need of necessity to be written by lawyers. We do Dennis J. Maggi, CAE Executive Director 19900 MacArthur Boulevard, Suite 610, Irvine, California 92612 not want to misquote or misinterpret speakers of the Telephone: 949.752.1801 Facsimile: 949.752.1674 Email: [email protected] Website: www.actl.com caliber of those who address us at those meetings. COPYRIGHT © 2008 Con’t on page 6

THE BULLETIN w COLLEGe gathers in mile high cityfor 57th annual meeting

Fellows and guests gathered in Denver, Colorado on Thursday, October 11, 2007 for the 57th Annual Meeting of the College. The Hyatt Regency Denver was the scene of the meeting.

The spectacular Denver Art Museum was the locale for the President’s welcoming reception on Thursday night. Featuring the year-old Frederic C. Hamilton Building, an addition designed by famed architect Daniel Libeskind to reflect the Rocky Mountains, the museum was a perfect setting for the event.

Friday’s program began with a welcome from Denver Mayor John W. Hickenlooper.

Lavinia Limón, President and Chief Executive Officer of the U.S. Committee for Refugees and Immigrants, accepted the Gumpert Award on behalf of her organization’s subsidiary, the National Center for Refugee Fellows and guests arrive at Denver and Immigrant Children. Limón’s presentation was Art Museum an eye-opening look into the plight of a group of children that has remained largely out of the public eye. Her address, like many of the others from the meeting program, is summarized elsewhere in this issue.

In an address entitled “The American College and the Judiciary: A Valuable Exchange,” Tenth Circuit Chief Judge Deanelle Reece Tacha, a three-time delegate to College-sponsored Anglo-American and Canada-

w THE BULLETIN United States Exchanges, and their guests to display Saturday’s program ended praised the College for spon- the athletic jerseys of their with a debate between soring these exchanges. own or their favorite teams David D. Doniger, Policy at a party at INVESCO Director of the Natural Re- In the course of the meeting, Field, home of the Denver source Defense Council, and the winners of the Canadian Broncos. Regent Raymond Fredrick D. Palmer, senior and United States Moot Court Brown was resplendent in a vice president of Peabody and Trial Competitions and Colts jersey, bearing his old Energy, the world’s largest the best oral advocates from number, generating a debate privately-owned coal com- each were recognized by the about whether the obviously pany. Their subject: “Global College. new jersey was necessitated Warming: The Energy and by the age or by the size of the Environment.” The highlight of the meet- the original model. ing was the creation of the The annual business meeting Sandra Day O’Connor Jurist Saturday’s program began of the Fellows and the reor- Award, the presentation of with the presentation by past ganizational meeting of the a bust of Justice O’Connor president David W. Scott, Board of Regents followed. executed by past president Q.C., of an Honorary Fellow- Warren B. Lightfoot in hon- ship to Madam Justice Lou- Ninety-four new inductees or of the occasion and Justice ise Charron of the Supreme were introduced to the Col- O’Connor’s acceptance re- Court of Canada. lege at a breakfast on Satur- marks, which are printed in day and, with their spouses their entirety elsewhere in Past president Michael E. or guests, at lunch that day. this issue. Mone presented an Honor- ary Fellowship to former The induction ceremony and Professor Shari Seidman President of Ireland and annual banquet followed Diamond, the foremost au- former United Nations High on Saturday night. Leslie thority on the American jury Commissioner for Human Fields of Denver gave the re- system, rounded out the Fri- Rights Mary Robinson. Her sponse on behalf of the new day program with her pre- address, “The Rule of Law: A inductees. sentation entitled, “Jurors: In Powerful Tool in Combating the Courtroom and During Terrorism,” is reprinted in At the end of the evening, Deliberations.” its entirety elsewhere in this in a ceremonial change of issue. command, David J. Beck The College’s Judicial Fellows turned over the gavel to his attended a private luncheon In a change of pace, Dr. P. successor, Mikel L. Stout of and tour of the Byron R. Terrence O’Rourke, M.D. Wichita, Kansas. White United States Court- used video clips of the songs house at noon Friday. and concerts of the Beatles to illustrate the various stages Friday evening afforded of life as outlined in Gail an opportunity for Fellows Sheehy’s book Passages.

THE BULLETIN w From the Editorial board con’t from page 3 We have a court reporter record board, the Executive Committee experience and who has helped us and transcribe the proceedings at and the staff for their scrutiny. to improve the overall appearance the two morning sessions. We We are confident that anyone who of the publication. also have a DVD of those sessions volunteers to do one of our articles and of the induction ceremony would find it a worthwhile, infor- Over the course of these ten years, and banquet. We proofread the mative exercise. We will be happy with the concurrent advent of transcript of the morning ses- to e-mail the corrected transcript the College website, the Bulletin sions against the DVD, checking of the presentation of a speaker to has been transformed from the for correct spellings and obscure anyone who wants to take a crack College’s not very timely newslet- references. (Google is a godsend at turning it into an article for the ter into what we hope is a more here.) We transcribe the induct- Bulletin. The pay is not very good, substantive, informative maga- ee’s response from a tape recording but we will edit constructively to zine-like publication. made directly from the DVD. make certain that you have the hang of it and give you a byline We believe that we have cut a pat- The current chair of the edito- credit for any article we publish. tern that works well and that, in rial board then takes the corrected the best tradition of the College, transcript of each speaker’s presen- We have gone from the first black it is time for the participation of tation and, cutting and pasting, and white 28-page issue that the more Fellows in the creating each incorporates the jist of it, and in current chair of the editorial board successive issue. some cases all of it, into an article. essentially wrote—or rewrote— We also mine the transcripts for Fall 1998, No. 32, to this issue, We would be happy to hear from notable quotes and bits of humor, No. 58, which has enough color any of you who would like to give which we scatter throughout the to stand out without straining our writing for the Bulletin a whirl. issue. budget. The longest of the recent issues, reporting the London- We edit one another’s drafts so that Dublin meeting, ran to 88 pages. two sets of eyes see everything we We have associated Liz Doten, print before it goes to the editorial who brought professional layout

We come together as lawyers to celebrate life and the rule of law which leads all to justice. Please, God, arm all of us with the strength and courage to seek and ensure equal and fair justice for all people. Help us to understand our special duty and solemn obligation as lawyers. Please provide us with the wisdom necessary to help those most in need of justice: the weak, the poor, the aggrieved. And, foremost, provide us with the will to do what is right even in the face of mighty opposition. . . . [W]e also give thanks for the basic gifts of life we so often take for granted: the food we eat, the air we breathe, the water we drink, and the precious freedom we enjoy. We finally pray that you watch over and protect all our airmen, sailors, soldiers “ and Marines, our country’s sons and daughters who have gone in harm’s ” way for their country. In God’s name, Amen.

Opening prayer, Texas State Chair Knox D. Nunnally, whose son, a Marine, has served three tours of duty in Iraq

w THE BULLETIN PAST president lightfoot forges career AS scu lPTOR

Past President Warren Lightfoot, who retired last year from his law firm in Birmingham, Alabama, has used his new freedom to pursue his hobby of sculpting portraits in bronze for clients across the country. His bust of Sandra Day O’Connor will be on permanent display at the United States Supreme Court in Washington, D.C.

“So many of my friends get to this point and wonder what they’re going to do with their time,” Lightfoot told The Birmingham News. “I loved practicing law, but I love doing this now.”

He began studying sculpting at the age of 9, but decided on the law instead of art for a career. He took up the craft again about 13 years ago as a hobby.

“Lightfoot likens sculpting to crafting a cross-examination, which was his legal speciality,” The Birmingham News story reported. “Both involve a process of preparation,” he said, “just as a lawyer adds on layers of questioning before stepping into a courtroom, a sculptor adds on layers of clay and detail, with part of the process knowing when and what to remove and when the job is completed.”

Some of his other commissions, which can cost up to $5,000, have included U.S. Senator Howell Heflin.

Past President Ozzie Ayscue observes that Lightfoot’s studio space has obviously come a long way in ten years. “I spent the night with the Lightfoots during my presidency,” he said, “and I distinctly remember Robbie Lightfoot complaining that Warren had found her kitchen counter a perfect work area for crafting the clay molds that he used to cast his bronze busts and had taken over her kitchen.”

F e l l o w s to the B e n c h The College is pleased to announce the following judicial appointments of Fellows:

JOHN C. CHERUNDOLO, Onondaga County Supreme Court, Syracuse, New York

CHRISTINE L. DONOHUE, Allegheny County Superior Court, Pittsburgh, Pennsylvania

THE BULLETIN w O’Con nor: j u dg e s m u st b e i n de pe n de nt

The following are the remarks of former Associate Justice Sandra Day O’Connor at the 2007 Annual Meeting of the American College of Trial Lawyers in Denver, Colorado on the occasion of the creation of the Sandra Day O’Connor Jurist Award and the presentation of a bronze bust of Justice O’Connor in honor of the occasion.

I am quite overcome to not only be here with all of you and to have a medal produced that will be given in the future, and to have an award named for me to be given in the future to jurists selected by you . . . . And I’m so touched that you have this bust made of me. . . .

I suggested to Frank Jones that in light of the close relationship so many of you have had through the years with the Supreme Court of the United States and with many of its members, that you might be willing to have this bust go, not to me, but to the United States Supreme Court. . . .

The Chief Justices are all in the Great Hall with white busts in those niches. I’m sure that you’ve seen them. And there are a few of former Justices, including my former colleague and treasured friend and your friend, Lewis Powell. So maybe that could go to the Court to be placed, I hope, near my old friend, Lewis Powell, . Sandra Day O’Connor . . I should say my former dance partner. Now, Lewis thought he was a very good dancer, and he was. I’m not sure he was quite as good as my dear husband, John O’Connor, but we’re not going to get into that.

As you’ve heard, Judge Tacha and I have returned from the recent completion of the Canadian-U.S. Legal Exchange. And for all the reasons she gave you, which were so beautifully expressed by her, I agree with her that the exchanges that the American College of Trial Lawyers has promoted with countries such as Canada and the United Kingdom have been enormously important.

We have to look back a little bit in history. As you have heard, we celebrated the 400th birthday of the founding of Jamestown

w THE BULLETIN in Virginia this year–the first per- The settlement brought other things We just have a lot to do still in this manent English settlement in the not quite so good along with it–and country to make our system work United States. It brought us a few it’s taken us more than 300 years and to make the rule of law a norm things that we care about. For one to address them–such as the use of in the rest of the world. thing, we’re all speaking English. tobacco and the use and presence And for another, when the Charter of slaves. That wasn’t such a good Now, even in our own country, we for the settlement in Jamestown inheritance. But through lawyers, are neglecting to teach young peo- was written in Great Britain, by over time, even those problems ple government and civics and the barristers, actually – I don’t know have been largely overcome, but need for an independent judiciary what they were doing writing the they’ve been overcome by appli- to protect the vital freedoms in our Charter, but they were – from the cation of the rule of law and the Constitution given to all of us. And Middle Temple, it was to support judicial process. this knowledge is not inherited in the first venture capital operation the gene pool. We don’t just pass in the New World. They thought In the American College, what that on genetically. We have to they could send some settlers over we worry about today is peace in teach it, and we’ve stopped doing and just pick up gold on the ground the world. We don’t want to be that. You have to help us make and, in the process, find a new engaged in wars around the globe. sure that we start to do it again. route to the Pacific Ocean. They The best hope for peace in the thought they would make a good world, it seems to me, still is the I have been impressed recently deal of money. notion of the rule of law. To the with some levels of support around extent that other nations accept the country. As I have talked about Well, it didn’t turn out that way. that concept, we’re going to move the attacks on judges and the lack The settlers who were chosen were closer to peace. And that’s why of understanding around the coun- not chosen because they were good what you do at the College and try, about the need for independent carpenters or builders or herdsmen what we do together matters more judges, I’ve been impressed with or anything. They were chosen be- than it ever did in the past. some of the responses. cause they were well-to-do and they could pick gold up on the ground. The American College of Trial Now, I read a recent little piece in And they suffered a lot. Within a Lawyers is the best we have to Judicature magazine, and it was year, over half the original seventy offer in this country in the legal coauthored by a conservative law- were dead. They drank water out profession. I’ve already told you yer and a very liberal one, Bruce of the James River instead of dig- why it is the legal profession and Fein and Bert Newberg. And they ging a well, and many of them just its concepts that are fundamental in said this: “Judicial independence drank polluted water and died. the founding of our country and in in the United States strengthens the hope of the future. You are the broader liberty, domestic tranquil- It was a very difficult settlement. best we have, and you have some ity, the rule of law and democratic But in addition to the English lan- marvelous, marvelous members, ideals. At least in our political cul- guage, the Charter itself, drafted you have had in the past, you have ture, it has proved superior to any by our colleagues in Great Britain, now and you will have, and your alternative form of discharging said that the settlers would apply role in maintaining contact with the judicial function that has ever the English common law. In other other nations with these traditions been tried or conceived. It would words, the settlement in James- has been critical and will continue be folly to squander this priceless town established the concept of the to be. And your working on other constitutional gift to placate the rule of law, which stemmed from issues that affect lawyers more clamors of political partisans.” the Magna Carta and the common directly, like electronic discovery law and the system in Great Brit- and things like that, I hope you’ll Now, that put it pretty well, and ain, and that was a priceless gift to find a way out of that morass. I bet that’s where we are today, and the New World. you can. L

THE BULLETIN w o’connor on judges, con’t from 9 that’s what I think all of us have find what it was. very hard to put together a pro- to be concerned about. In my gram that will be addressed to own efforts, which I thought I Well, with Oliver Wendell Hol- seventh, eighth and ninth grad- would devote some time to, since mes and a few other luminaries, ers. Middle school is when the I’m retired, and when I’m not we changed that way of thinking light bulb starts to turn on in the sitting on the Circuits – which I and we realized that indeed in mind and they begin to get it, and don’t intend to do all the time, . a common law system, judicial that’s the time I think to get them . . even as nice as it is – I think opinions on new questions be- interested. And we want to make that time spent in reminding all come part and parcel of the law. an interactive program that will Americans of why the framers of And they weren’t just finding it enable a student with a computer our Constitution chose to work so from out there somewhere. They to plug into a permanent free hard in creating three branches: were having to articulate it, and website and to play the role of to ensure the independence of in some instances, it answered judge and decide some actual is- the judicial branch from the other questions that hadn’t been an- sues and then check and see how two, to ensure that the other two swered before. the courts did it, and to play other branches of government would roles, that of an advocate or per- not seek retaliation against judges And with that discovery came a haps a juror, and to learn about for decisions they might not like. greater pressure from the public what we’re talking about and to say, “Well, if judges are going why it matters. We are seeing it today in Colora- to make law, we want to elect do. We are seeing it in South Da- them.” We didn’t start out in this This is a complicated project, kota. There are even efforts in my nation electing all our judges. but with education, I think we home state of Arizona to change That’s a later phenomenon, and can begin to make a difference. a system that has produced one of it’s a very popular one today. . . . But we also have to remember the finest state judiciaries in the the problems that we have in the country. We’re seeing efforts to I’ve been down to Texas and had various states that still have parti- curb that. a little conference down there san election of judges, with mas- to explore whether Texas would sive amounts of money changing We have judicial elections in a be interested at all in moving to hands. majority of states today, partisan a merit selection and retention election of judges, with the rais- election scheme. There’s not I thank all of you for everything ing of large amounts of campaign much interest down there. I’m you do. You do make a difference money. From whom? From law- told on very good authority that in our legal profession. I totally yers, from business interests who at times in Texas, if there’s an im- agree with Deanell Tacha [an ear- care about results. portant case in a trial court, and lier speaker], that you have and two lawyers on either side, they are making a difference, and I too Now, this is a strange way to sort of have the side agreement thank you for everything you do, go about selecting an indepen- that each lawyer or lawyer’s firm that you have done, that you’ve dent judiciary. And these things will make a contribution to the done today to honor my name didn’t occur right after the estab- judge’s campaign, so that it won’t and legacy. I treasure that more lishment of our country. Indeed, be one-sided. Now, what kind of than you will ever know. when the framers worked so hard a system is that, I ask you? to establish an independent ju- Have a good meeting, and con- diciary, the common framework I mean, I think we have to do tinue doing lots of good things. was that judges didn’t make law; something about this. That isn’t they found law. Law was out what we stand for or what you there somewhere, preordained, stand for, and we need to educate and it was the role of judges to young people. And I’m trying

10 w THE BULLETIN MARY rob i n son made an honor ary fe llow first woman president of ireland

At its annual meeting in Denver, “Seeing politics as an extension “Following the Irish presidency, the College awarded an Honor- of her legal work for human she served for five years as the ary Fellowship to Mary Robin- rights, she became a Senator, UN Commissioner on Human son, an Irish barrister, the first where she advocated for the Rights, dealing with some of woman President of Ireland and rights of women and families, the most serious issues of hu- later United Nations High Com- also establishing leadership in man rights in the world, and she missioner for Human Rights. promoting Ireland’s role in the now serves as president of Real- European Community.” izing Rights, The Ethical Global In making the award, past presi- Initiative, whose mission is to dent Michael E. Mone, a sec- “In 1990, Robinson was elected make human rights a compass by ond-generation Irish-American, as the first woman President of which global society is just, fair remarked, “[T]oday we honor a Ireland. The Irish presidency and benefits all. She did this all woman who brings a record of is head of the State, not head of while raising three children.” great service and achievement. government, but Mary Robinson A list of her achievements would saw her position as President “Mary Robinson, as President of take the rest of the morning . . . .” as giving her what our President Ireland, occupied the lovely Irish Teddy Roosevelt called a bully White House in Phoenix Park. The daughter of two physicians, pulpit. She used, not political For two centuries, Ireland’s great- she was born in County Mayo, power, but the same power of est and most tragic export was Ireland, educated at Trinity persuasion that had made her her children, who left to form College, studied law at Kings an outstanding barrister. Her the Irish Diaspora that spread in Dublin and Harvard Law voice in Ireland for the advance- throughout North America and School. “As an Irish barrister ments of human rights, the status the rest of the world. When Mary and as a member of the English of women, and the rule of law Robinson became President of Bar,” Mone continued, “she changed Irish society. No one Ireland, she lit a candle in the sought to use law as an instru- in Ireland has been more re- window of the Irish White House ment of social change, arguing sponsible for elevating the role to call home Ireland’s sons and and winning landmark human of women in Irish society than daughters. They answered the rights cases before the courts of Mary Robinson.” call, and Ireland in the last ten Ireland and the European Court years, for the first time in 200 of Human Rights. A dedicated “She, along with others, played years, has had more people ar- European, she founded the Irish an important role in moving riving than people leaving. They Center for European Law at Trin- the peace process in Northern have joined in making Ireland ity College, where she taught and Ireland forward. She was never one of the most vibrant societies where, in 1998, she was honored content to serve merely as a fig- and economies in Europe. That with election as Chancellor of urehead President.” candle still burns in the window the University.” L

THE BULLETIN w 11 robinson: honorary fellow, con’t from 11 of the Irish White House, and migrants,” Mone concluded, “I Robinson’s eloqouent acceptance Mary Robinson, along with that am enormously proud today to remarks, entitled “The Rule of symbol and along with so much present on behalf of the Ameri- Law: A Powerful Tool in Com- she has done, had a role in chang- can College of Trial Lawyers an bating Terrorism,” are reprinted ing, not only Irish society, but the Honorary Fellowship to Mary elsewhere in this issue. recognition of human rights in Robinson, the first Honorary Fel- the world.” lowship awarded by the College to a citizen of Ireland.” “As the grandson of Irish im- bon mots Lewis was an excellent dancer, and I had the privilege of dancing with him several times. He once asked me to speak at a meeting of the Richmond Bar Association. When he introduced me, he said, “Now, on my tombstone it will say: ‘Here lies the first Supreme Court Justice to dance with another Justice.’”

Associate Justice Sandra Day O’Connor, Speaking of the Late Associate Justice and College Past President Lewis F. Powell , Jr.

colleg e e lects n ew OFFice r s

Mikel L. Stout of Wichita, Kansas was installed as the College’s new President in Denver, succeeding David J. Beck of Houston, Texas. John J. (Jack) Dalton of Atlanta, Georgia is the incoming President-Elect Gregory P. Joseph of New York, New York will serve as Secretary Joan A. Lukey of Boston, Massachusetts will serve as Treasurer

new regents

Paul T. Fortino, Portland, Oregon Phillip R. Garrison, Springfield, Missouri Christy D. Jones, Jackson, Mississippi Paul S. Meyer, Costa Mesa, California

12 w THE BULLETIN th e r u le of law: A powe r fu l toolin Combating te r ror i s m

DavidThe Honourable D. Doniger, Mary a lawyer Robinson, and Director a barrister, of the Natural former Resource President Defense of Ireland, Council, andformer Frederick United D. Nations Palmer, alsoHigh a lawyerCommissioner and Senior on Vice Human President Rights of Government and a leading Relationsinternational for Peabody human Energy, rights theadvocate, world’s largestwas made shareholder-owned an Honorary coalFellow company, of the American College of Trial Lawyers at its October 15, 2007 annual meeting engaged in a public debate at the Denver meeting. in Denver, Colorado. These are her remarks on that occasion.

President David Beck, ladies and gentlemen, I am indeed delighted and honored to accept honorary fellowship in the American College of Trial Lawyers.

And I’d like to thank President Beck and also Michael Coo- per, who first contacted me about this, and the Board of Re- gents, for this signal honor and indeed for their patience in renewing the invitation so that I could come here personally and accept today.

I’d also like to thank Michael Mone for his very kind words. As he said to you -- and we talked about this earlier -- he has strong Irish roots, and I think he has a touch of the Irish blarney, as well.

I very much enjoyed the presentation of Madame Louise Charron, and I was glad she mentioned a former colleague The Honourable Mary Robinson of hers on the Supreme Court, Louise Arbour, who is now my successor as UN High Commissioner for Human Rights. And I’m a little puzzled, because during my time in the United Nations, a Canadian woman was also serving as Deputy Secretary General, Louise Fréchette. Do you have to be called “Louise” to be a very prominent woman in Ca- L

THE BULLETIN w 13 robinson: rule of Law, con’t from 13 nadian life? about the Rule of Law, a pow- confront such challenges more erful tool in combating terror- effectively. It’s, in fact, quite a while since ism. It’s a tough subject, but Our job as lawyers is to make I practiced as a trial lawyer, but someone has to do it. And the case that it is precisely these I remember after I was elected the truth is that the values and dangers and the changing, more President in December 1990, ev- processes associated with the interconnected, world we live in ery few months I would have a Rule of Law are questioned by that makes strengthening respect terrible nightmare that I was ap- many people today. for the Rule of Law so impor- pearing before the Irish Supreme tant. Why? Because without Court and I hadn’t read my brief, We live in times of new threats the Rule of Law, government and I really woke up in a cold to human security and public officials aren’t bound by agreed sweat, and I still sometimes have order. Terrorist groups are pre- standards of conduct. Without that nightmare. I just hope this pared to attack anywhere at any the Rule of Law, the dignity award won’t trigger it again in time without regard for innocent and equality of all people isn’t the coming months. lives. Failing and failed states affirmed, and their ability to are unable to secure even the seek redress for grievances and The last case I pleaded was not, most basic structures of gover- fulfillment of societal commit- in fact, before an Irish court. It nance, leading in many countries ments is limited. Without the was in October 1990, towards to violent conflict, mass migra- Rule of Law, we have no way to the end of a hard-fought presi- tion and increased poverty. ensure meaningful participation dential campaign and, to the con- by people in formulating and en- sternation of some of my loyal I saw this very vividly at the acting the norms and standards supporters, I broke off from the beginning of September, when which organize society. campaign to go to Luxembourg I led a number of women lead- to plead a case before the Court ers -- there were eight of us -- to But we acknowledge that to be of the European Union. It was eastern Chad on the border of effective, legal systems must be a case on behalf of two married Darfur to listen to women and able to respond to changing cir- women, Mrs. Cotter and Mrs. their stories of being chased out cumstances which put individual McDermott, who had been dis- of their villages, their husbands freedoms and public order at criminated against, or so they killed, gang raped, and yet when risk. claimed, unsuccessfully, that they came to the camps in east- they were discriminated against ern Chad, they still weren’t safe. I’d like to focus my remarks by the Irish Social Welfare code, today on how we, as lawyers, because when they became un- The proliferation of weapons committed to promoting respect employed, they got less in un- of mass destruction, dramatic for the Rule of Law, should re- employment benefits and for a changes in the global climate spond to one of these threats, lesser period than married men. that we hear about, the HIV and and that threat is terrorism. AIDS pandemic and international How can we be strong in con- And we did succeed in that case, criminal syndicates which traffic fronting and bringing to justice and the Irish government, and everything from small arms to those who carry out terrorist acts therefore I’m afraid the Irish tax- the most vulnerable human be- while holding to our core values, payer, had to pay up something, ings, all require new approaches. including our commitment to 200 million Irish punts in those Some question whether the law respecting the Rule of Law and days. So it wasn’t a bad case to can help to meet these threats. defending fundamental human sort of fold my tent on. They ask that the respect for the rights? Rule of Law should be somehow I’ve chosen today to talk briefly put aside or diluted in order to I’ve said on many occasions

14 w THE BULLETIN over the past six years - since the 9/11. That language, which has governments an opening to take terrible attacks in this country shaped to a much larger extent their own measures, which run that we now capture by the term the response at all levels, has counter to the Rule of Law and “9/11” - that language is vital spoken of a “War on Terrorism.” undermine efforts to strengthen in shaping our reactions. The As such, it has brought a subtle democratic forms of government. words we use to characterize an change in emphasis in many The language of war has made it event may determine the nature parts of the world. Order and easier for some governments to of our response. security have become the over- introduce new repressive laws, riding priorities. to extend security policies, to In the immediate aftermath of suppress political dissent and to the 11th of September 2001, As in the past, the world has stifle expression of opinion of while still serving as the United learned that emphasis on na- many who have no link to terror- Nations High Commissioner for tional order and security often ism and are not associated with Human Rights, I came to New involves curtailment of democ- political violence. York, I went to Ground Zero, I racy and human rights. Mis- met the bereaved families, the use of language has also led to When I was serving in the FEMA workers, the many vol- Orwellian euphemisms, so that United Nations, Hans Correll unteers. And I went into my of- “coercive interrogation” is used was the Legal Counsel, and he fice and sat with my colleagues, instead of “torture” or “cruel and made a similar point at a recent as we formulated what would be inhuman treatment.” “Kidnap- international conference on “In- the approach, the response, under ping” becomes “extraordinary ternational law in flux.” I’d like international human rights law. rendition.” to quote what he said. “To sup- Based on this work, I described press terrorism is not a war. You those attacks here in the United I should make it clear that char- cannot conduct a war against a States as constituting crimes acterizing major terrorist attacks phenomenon. As a matter of against humanity. I stressed the as crimes against humanity fact, to name the fight against duty on all states to find and doesn’t rule out the possibility terrorism a war was a major punish those who planned and for an appropriate military re- disservice to the world com- facilitated these crimes. sponse, such as the invasion of munity, including the state from Afghanistan when the Taliban where the expression emanates. It’s worth recalling why this de- refused to hand over Osama bin The violations of human rights scription was appropriate. The Laden and his associates. How- standards that have occurred in 9/11 attacks were mainly aimed ever, the conflicts there, and in the name of this so-called war, at civilians. They were ruthless- particular the subsequent deci- no matter how necessary it is to ly planned and their execution sion to go to war in Iraq, have counter terrorism, have caused timed to achieve the greatest loss reinforced the perception of a tremendous damage to the ef- of life. Their scale and systemat- War on Terrorism which goes forts of many to strengthen the ic nature qualify them as crimes beyond the rhetorical use of the Rule of Law.” against humanity within existing term. I have used the term “war” international jurisprudence. many times, a “war on poverty,” Yet despite these negative global a “war on want,” a “war on hun- consequences, many still believe But, as we know, despite ef- ger.” But the “war on terrorism” strongly that such measures forts to frame the response to is not meant in that sense. were necessary to guard against terrorism within the framework further terrorist attacks. The of “crimes” under national and The reality is that by responding security argument maintains international law, an alterna- this way, the United States has, that the terrorist attacks in New tive language emerged post often inadvertently, given other L

THE BULLETIN w 15 robinson: rule of Law, con’t from 15 York, in Madrid, in Sharm El the United States government, important to remove any provi- Sheikh, in Bali, in London and for example, to hold detainees sion which seeks to grant broad elsewhere were so heinous, so at Guantanamo Bay without immunity from liability for war unprecedented, that new strate- Geneva Convention hearings; crimes right back to September gies, and sometimes exceptional to monitor, detain and deport 2001. The Rule of Law requires measures, were required. In immigrants against whom no that there be accountability for other words, fundamental prin- charges have been made; or to serious wrongdoing by those ciples underlying the Rule of put in question long-held com- responsible. Law could be put on hold to ad- mitments, such as forbidding the dress the more urgent threat. use of torture ,justifiable actions On the international stage, new to protect the American people? efforts to reassert the importance As Judge Richard Posner has of the Rule of Law in the strug- suggested, and I quote him, “The I fear that the authority of law gle against terrorism are also, scope of our civil liberties is not has been undermined in many I’m glad to say, emerging. For graven in stone, but instead rep- important ways over the last six example - the Club of Madrid, resents the point of balance be- years. The question facing us to- a club of former heads of state tween public safety and personal day is, How are we to respond to and government, exalted has- liberty, the balances struck by the situation, and what steps can beens like myself! - convened a the courts interpreting the vague we, and must we, take to restore summit called the International provisions of the Constitution and protect the international Summit on Democracy, Terror- that protect personal liberty, as Rule of Law? ism and Security two years ago, it is constantly being restruck as on the first anniversary of the perceptions about safety and lib- I’m actually hopeful that things terrible train bombings in Ma- erty change. The more in danger are beginning to change for the drid. The purpose of the Summit public safety is thought to be, the better. There is a swing back in was to build a common agenda more the balance swings against realizing that a lot of damage has on how the community of demo- civil liberties. That is how it is, been done, that the mistakes of cratic nations could most effec- and that is how it should be.” the past six years are beginning tively confront terrorism while to be recognized and some steps maintaining commitment to civil But what is the limit? How far taken, including by the courts liberties and fundamental rights. can the balance swing against in this country, to redress that the core principles underlying damage. The Summit brought together the Rule of Law? Comments many leading experts who ex- like Judge Posner’s could imply What is needed now is a broader amined the underlying factors that the security imperative out- approach. As a guest in this of terrorism, the effective use of weighs all other considerations. country, I just offer my thoughts the police, the military, the intel- I don’t believe that. Six years -- that we need, in fact, legisla- ligence services and other na- after 9/11, I believe we must tion that reaffirms the United tional and international agencies evaluate such assumptions and States’ adherence to the Geneva to prevent and fight terrorism. ask ourselves if all the measures Conventions, to the UN Con- Our aim was to construct a strat- taken have been justified and vention Against Torture, and to egy against terrorism based on consistent with the Rule of Law the McCain Amendment, which the principles of democracy and and if they have, in fact, been ef- establishes an absolute ban on international cooperation and fective in combating terrible acts cruel, inhuman and degrad- on strengthening civil society of terrorism. ing treatment of all detainees against extremists and violent in U.S. custody or control by ideologies. Were the decisions taken by any U.S. personnel. It would be

16 w THE BULLETIN The resulting Madrid Agenda, Africa. We conducted hearings forces which fuel terrorism. which you can find on the web- in some 20 countries. I took part We are the professional law- site of the Club of Madrid (www. in hearings in Washington, D.C., yers. I speak now as an honor- clubmadrid.org), makes a com- relating to the United States in ary member of the American pelling case, not only for more September a year ago. I was in College of Trial Lawyers, who effective joint action against Moscow in January for another know through our professional terrorist organizations – so it’s hearing. And we’ve gathered all experience how vital it is to very strong in countering terror- this material, which again is on maintain and safeguard the Rule ist organizations -- but also the the website of the ICJ. We will of Law and the principle that no need to increase resources aimed meet in Geneva in January ‘08 to executive office of government at tackling the humiliation, the try to formulate a report, which is above the law. anger and frustration felt by looks at the trends, looks at the many that can be manipulated, way in which the dipping of These are anxious and confus- as we know, to draw recruits for standards -- I have to put it that ing times, when public fears terrorist action. way -- in this country have such are easily aroused by possible a knock-on effect in so many threats and references to threat There is also a relevant initiative other countries that don’t have levels. As we have seen, the of the International Commission similar checks and balances: role of the courts is vital in of Jurists. I serve on the board the independent courts, the trial scrutinizing any measure taken. of the ICJ, and I’m sure a num- lawyers like yourselves, the aca- But the courts themselves need ber of you are also supporters demics and a Congress that can support and vocal advocacy on of the ICJ. It gathered together sense the mood of a people and their behalf when their indepen- 200 members in Berlin in 2004 begin to renew commitments. dence or judgments come under and adopted a Declaration on increasing attack. Upholding Human Rights and So, in conclusion, I would say the Rule of Law. You can find with sadness that over the past As Judge Chaskalson has that Declaration at www.icj.org. six years the view that govern- warned, and I quote him, “We I believe that it does actually ments will ultimately only rule have to be vigilant from the very restore the balance which was by power and in their own in- beginning. If you concede the lost in the aftermath of 9/11. terest, rather than by law and in first step, every next step will It’s a declaration that should accordance with international lead to the further erosion of the hang in law offices and judges’ standards, has been strength- Rule of Law and disregard of chambers around the world. It’s ened significantly. human dignity.” the Rule of Law charter to counter the imbalances of what has Bodies like the American Col- So I really thank you for the sometimes been called “the new lege of Trial Lawyers must do honor, and, as I said at the be- normal.” more to challenge that approach. ginning, I hope it doesn’t give They must use -- you must use me any new nightmares. And arising out of this initiative, -- your collective voice to main- the ICJ established an Eminent tain the integrity of international Thank you very much indeed. Jurists Panel - on which I’m human rights and humanitarian proud to serve - composed of law norms in the light of height- eight jurists from all regions ened security tensions, not just and legal traditions. The panel because it’s the right thing to do, is chaired by Arthur Chaskalson but because it’s the most effec- former Chief Justice of South tive strategy in countering the

THE BULLETIN w 17 COLLEGE INDUCTS 94 AT DENVER MEETING

UNITED STATES DELAWARE: David C. Hall, KENTUCKY: MINNESOTA: Allen M. Terrell, Jr., Chicago, Tyler S. Thompson, Jon M. Hopeman, ALABAMA: Wilmington Larry E. Hepler, Louisville Minneapolis, Walter W. Bates, Edwardsville, Lawrence R. King, Birmingham, DISTRICT OF Thomas R. Hill, LOUISIANA: St. Paul, Edward R. Jackson, COLUMBIA: Steven M. Kowal, Harry J. (Skip) Edward M. Laine, Jasper, Thomas F. Cullen, Jr., Allen N. Schwartz, Philips, Jr., Baton John W. Lundquist, Donna Sanders Pate, Washington Chicago Rouge James A. O’Neal, Huntsville, Timonthy R. Schupp, Fred W. Tyson, FLORIDA: IOWA: MARYLAND: Ronald J. Schutz, Montgomery Joseph M. Matthews, H. Daniel Holm, Jr., Paul F. Strain, Jim Schwebel, Coral Gables Waterloo, Baltimore Marianne D. Short, NORTHERN Paul D. Lundberg, Barbara A. Zurek, CALIFORNIA: GEORGIA: Sioux City, MASSACHUSETTS: Minneapolis John M. Drath, N. Karen Deming, Randall J. Shanks, James J. Marcellino, Oakland, Bruce H. Morris, Council Bluffs, Barbara L. Moore, MISSISSIPPI: Robert T. Lynch, Atlanta, Mark L. Zaiger, Boston John G. Corlew, San Francisco Patrick T. O’Connor, Cedar Rapids Jackson Savannah MICHIGAN: COLORADO: KANSAS: Lawrence J. Acker, NEVADA: Leslie A. Fields, ILLINOIS: Steven C. Day, Bloomfield Hills, LeAnn Sanders, Fernando Freyre, Roy L. Carnine, Wichita, Frederick D. Dilley, Las Vegas Denver Mount Vernon, Brian C. Wright, Grand Rapids Carlton D. Fisher, Great Bend

18 w THE BULLETIN NEW JERSEY: C. Colon Willoughby, Jr., Daniel B. Huyett, TEXAS: Thomas J. Graham, Jr., Lawrence S. Lustberg, Raleigh Reading, Reagan M. Brown, Eau Claire, Newark David R. Johnson, Charles R. Parker, Mark P. Wendorff, OHIO: Maureen P. Kelly, Houston, Wausau NEW MEXICO: Gary W. Osborne, Pittsburgh, Alton C. Todd, W. Mark Mowery, Toledo, Brian J. McMonagle, Friendswood CANADA Santa Fe Daniel P. Ruggiero, John E. Riley, Portsmouth Samuel W. Silver, VIRGINIA: BRITISH COLUMBIA: DOWNSTATE William J. Winning, Donald R. Morin, Peter G. Voith, Q.C., NEW YORK: OKLAHOMA: Philadelphia Charlottesville Vancouver Richard C. Cahn, Benjamin J. Butts, Melville, Robert W. Nelson SOUTH CAROLINA: WASHINGTON: MANITOBA/ Isabelle A. Kirshner, Anton J. Rupert, M. Dawes Cooke, Jr., Stanley A. Bastian, SASKATCHEWAN: John M. Nonna, Oklahoma City, Charleston, Wenatchee, Douglas C. Hodson, New York Mart Tisdal, H. Spencer King, III, William F. Cronin, Saskatoon Clinton Spartanburg, Seattle NORTH CAROLINA: H. Sam Mabry, III, ONTARIO: WEST VIRGINIA: Timothy G. Barber, PENNSYLVANIA: Greenville, David M. Humphrey, Elliot G. Hicks, Harvey L. Cosper, Jr., Ralph A. Davies, Andrew J. Savage, III, Douglas C. Hunt, Q.C., Charleston Henderson Hill, Pittsburgh, Charleston, Elizabeth J. McIntyre, Charlotte, R. Nicholas Gimbel, Robert E. Stepp, WISCONSIN: Philippa G. Samworth, John P. O’Hale, Robert L. Hickok, Columbia William F. Bauer, Toronto Smithfield, Linda Dale Hoffa, Madison, Philadelphia, The inductee response was given by Leslie A. Fields of Denver. THE BULLETIN w 19 O’Connor, con’t from cover preme Court building in Wash- “Worse yet,” Pope said, “our an attorney, although one did ington, D.C. elected legislators in many in- offer her a secretarial position. stances are exacerbating this Michael A. Pope of Chi- mob mentality, knowing that “That’s hard to believe today, cago, chair of the Sandra Day judges are ethically restrained but it’s a true story,” Jones said. O’Connor Award Committee, from publicly defending their “In retrospect, however, I be- explained that the award was decisions in the press. It is our lieve that this was a very fortu- being created in hope of revers- hope that through the work of nate turn of events for her and ing a trend toward denigration this committee, the College in for our nation. She wound up of judges. some small way can reverse or in Phoenix, Arizona, and there impede this pernicious trend by she had a highly diverse and “Sadly, such an award is timely regularly honoring judges who successful career that was very and much needed,” Pope said. do their job properly.” valuable in her later service on “Members of the judiciary are the highest court.” frequently under sustained at- The committee hopes to receive tack in jurisdictions across the nominations for the award from O’Connor became a trial lawyer United States and Canada. These Fellows of the College, as well in private practice, a deputy attacks, interestingly enough, are as from judges and practicing county attorney, an assistant at- not directed against judges who lawyers throughout the United torney general of Arizona, a trial have failed to follow the law or States and Canada. judge, a member of the Arizona wrongly decided a case. Rather, State Senate, where she was in most instances, the judges in In introducing O’Connor, Past elected as majority leader, and a question have properly applied President Frank C. Jones of Ma- state appellate judge. the law and the facts and even con, Georgia said, “Sandra Day been affirmed on appeal. It is grew up on a cattle ranch that “I think, in the course of this the outcome of these cases that straddled the border of Arizona diverse career, she developed some people disagree with, and and New Mexico. She and her keen insight into the proper they then seek to organize a brother, Alan Day, described functioning of each of the sev- widespread attack on that judge what life was like on this harsh, eral branches of government,” or on members of the judiciary but beautiful, land in a delight- Jones said. as a whole.” ful book entitled, Lazy B —that’s the name of the ranch — which On July 7, 1981, O’Connor was Pope called attention to the re- was published several years nominated to the Supreme Court cent ballot initiative in South ago.” by President Ronald Reagan. Dakota that attempted unsuc- She was confirmed by a Senate cessfully to eliminate judicial Jones continued, “In reflecting vote of 99 to 0 on September 21 immunity, the notorious “Jail- on the ranch life many years and took her seat on September For-Judges” campaign, and later, Justice O’Connor wrote, 25, 1981. to the then-current attempt to ‘We like to think we benefited in mobilize a negative vote against many ways from our ranching Jones pointed out that Justice all the Pennsylvania judges in- experiences, that openness, gen- O’Connor was inducted as an volved in retention elections, os- erosity and independence were Honorary Fellow of the College tensibly because they accepted a ingrained in each of us.’ “ soon after her appointment and pay raise granted by the legisla- has been an enthusiastic Fellow ture. Through such movements, Jones noted that O’Connor re- and supporter ever since. “For he noted, determined politically ceived her undergraduate and example,” he noted, “she chaired active groups have turned the law degrees, both with high hon- the Anglo-American Legal Ex- respected role of the judiciary ors, from Stanford University, change some years ago, and ac- into just another dirty political but that despite her outstanding cording to my recollection, has campaign. academic record, no California appeared on the programs of at law firm would employ her as least five national meetings.”

20 w THE BULLETIN O’Connor and the late Associ- ginia this past year, and I am federal judge, having served ate Justice Lewis Powell, who told that the Queen of England since her retirement on panels also served as a president of the came to take part in the events of the 2nd, 9th and 8th Circuits. College, have the distinction of at her invitation. She served In the months to come she was being the two former Supreme on the Iraq study group. She is to serve on panels in the 1st, 4th Court Justices whom the College co-chair of the national advisory and 10th Circuits. has chosen to honor through council of the campaign for the the striking of a medal, a great civic mission of schools.” “She has been extraordinarily distinction. generous in responding to in- Another honor bestowed on her, vitations to speak around the Jones observed, “If anything, Jones said, was the establishment nation and abroad,” Jones said. Justice O’Connor seems to have earlier in 2007 of the Sandra Day “She commented recently in an been even more active since her O’Connor Project on the State interview, ‘I need to retire from retirement than she was during of the Judiciary at Georgetown retirement,’ and said that she the Court years. She is the Chan- University Law Center. The does plan to slow down and to cellor, for example, of the Col- purpose is to educate the public say ‘no’ more often. We are for- lege of William and Mary. She about judicial independence, tunate indeed that she said ‘yes’ serves as a trustee of the Rock- the importance of a fair and in response to this invitation.” efeller Foundation and is on the independent judiciary in our Advisory Board of the Smithso- constitutional framework. Justice O’Connor’s acceptance nian. She was Honorary Chair remarks are reprinted elsewhere of America’s 400th Anniversary In conclusion, Jones emphasized in this issue. celebration at Jamestown, Vir- that O’Connor is still an active

We have an excellent program this morning, so I will resist the view of Oscar Wilde who said, “I like to do all the talking myself; it saves time and prevents argument.” As I was trying to bring together some thoughts for the beginning of the program this morning, I talked to my wife, Judy, and I said, “Judy, did you ever in your wildest dreams think that someday I would be speaking before all these wonderful trial lawyers and judges? Did you ever think that in your wildest dreams?” And she looked at me and said, “Honey, you’ve never been in my wildest dreams.” President David J. Beck, introducing the opening session of the College’s 2007 annual meeting bon mots

Joe Montano . . . was my mentor for seventeen years before he retired. Joe is a Fellow of this organization . . . . Joe was Chief Highway Counsel for the Department of Transportation for many years . . . . He left the state to go into private practice where he became the first Hispanic partner in a major corporate law firm in Denver. From Joe, I learned that from the humblest of beginnings one can achieve great success, overcoming racial intolerance, economic disadvantages and seem- ingly insurmountable obstacles. In this day and age, when so much emphasis is placed on diversity in our profession, I am so proud to say that as a black woman I learned so much about the law from this incredibly gifted Hispanic lawyer who, when he graduated from law school, granted, many years ago, could not find any- “ one to give him a job. I learned yesterday for the first time what great company he” was in, just as Sandra Day O’Connor also could not find a job out of law school.

Leslie Fields, Denver, responding for her class of inductees

THE BULLETIN w 21 Law won out over jou r nali s m: Joh n G. Cor lew

Average Fellow: To illustrate the depth and breadth of the College’s Fellowship from time to time The Bulletin will write about a typical Fellow. This issue features John G. Corlew of Jackson, Mississippi, who was inducted at the 2007 Annual Meeting in Denver.

When asked why he decided to become a lawyer, John Corlew explains: “I majored in journalism in undergraduate school and the chairman of the department suggested that I go to law school. He used the example of Fred Gra- ham, who became a noted journalist after obtaining a law degree.”

Corlew, who received his B.A. from Ole Miss in 1965 and his J.D. from Vanderbilt in 1968, said he changed his mind about going into journalism and decided upon a career in law. All this despite being managing editor of the Vanderbilt Law Review.

Corlew remembers his first trial vividly. “I represented a fra- ternity brother whose boat burned without insurance. He said he had asked for the insurance from an insurance agent, but did not get that type of coverage. The agent denied that. John Corlew I lost a jury verdict. The trial judge allowed the case to go to the jury despite what I believe in retrospect was the fact that I sued the wrong party.”

His most memorable case proved to him the power of a jury: “I represented a homeowner after Hurricane Camille

22 w THE BULLETIN in 1969. It was in federal court “There was visible evidence of become too expensive and that in Biloxi. Coverage for flood this in a window air condition- courts have become too admin- damage was not available and ing unit, which was lodged in a istrative. Despite that, I believe my client only had wind cover- tree approximately eight feet off that trials, whether jury or non- age and several feet of water in the ground and a lead-weighted jury, are the ultimate in dispute his house.” parrot, which had been in the resolution, civil and criminal. house and come to rest several Settlements are made and pleas He had already tried one Hur- hundred yards away in a tree negotiated because the trial is ricane Camille case, recovering a high above the highest level of there as a last resort. I have had modest verdict for wind damage water. We carefully proved the very limited experience with after meticulously attempting totality of damages from wind binding arbitration. The experi- to prove the difference between and water and what we could ence was poor. The arbitration wind and water damage. clearly identify as wind damage. was as expensive, if not more When it came time to argue, expensive, than trial. There is a In the second case, his expert my instinct was to take the con- dignity associated with, and re- witness, retired from the Corps servative logical approach, but spect for, the judicial system as a of Engineers, testified that this I instead argued for all of the decision-maker. That aura is lost house, despite having substantial damages. The jury returned the in arbitration. A future without amount of water damage, had policy limits within minutes and trials is a bleak prospect to con- been ravaged by wind before the I believe I appreciated for the template. The College is an ag- water arrived. first time the power of the jury gressive advocate for the judicial “He made a very convincing as an engine of justice.” system, and resolution by trial, and should continue to be.” case that the high velocity winds Asked to comment on the cur- created low pressure outside rent status of trials, Corlew said, the house causing it to in effect “We all know that trials have explode outward,” Corlew said.

When you told me I was being considered for membership in the American College of Trial Lawyers, at first, I did not believe it. And when I realized you were not kidding, my disbelief turned into humility. To me, recognition by the College of a lawyer’s skills is one of the most meaningful things which can happen to a lawyer. When I was a young lawyer, I used to look at the published roster of the College, when my senior partner received annual publications, and think, “Here are the lions of my profession, and I know some of them.” I was just proud to know “ them, not really thinking I might become one of them. My senior partner ” held that group in such high esteem that the only thing he displayed on his wall in his office was his American College of Trial Lawyers plaque. Not his diploma, not the fact that he went to Harvard, nothing but that plaque. That said it all to me.

Letter from a new inductee to his State Chair

THE BULLETIN w 23 expe rt evaluate s j u ror s during de li b e r ation s

“From the jury’s point of view, when they come into a courtroom, they’re trying to solve a problem.”

So began the annual meeting continuing legal education presentation of Shari Seidman Diamond, the Howard J. Trienens Professor of Law and Psychology at the Northwestern School of Law.

The foremost contemporary empirical researcher in the jury process and in legal decision-making, Diamond is best known to lawyers for her research involving the Arizona Jury Project, in which actual jury deliberations were recorded on camera and analyzed, and for the American Bar Association’s American Jury Project.

“[F]or many people,” she continued, “the jury is . . . a cultural icon, but, of course, it is also a favorite scapegoat. . . . Another image of the jury is as naive Shari Seidman Diamond and easily manipulated, also biased and incompetent as a decision-maker, and on the other side of it, a re- pository of folk wisdom and common sense. There is a mixture of images out there. My own image of the jury is a little bit of the common folk wisdom, but more to the point for today’s conversation, it is an active problem-solver.

“When I began studying the jury, . . . I have to confess

24 w THE BULLETIN that I was like one of those old- signed either to permit jurors of the fact that people are go- time scientists who thought to talk about the case in the ing to try and persuade them that hummingbirds couldn’t course of the trial or to tell of things — witnesses and fly. But there you are, faced them that they could not. The attorneys — and, oh, by the with a hummingbird that can jurors were videotaped in the way, they may intentionally fly. And so what I discovered jury room, during mid-trial not be telling the truth all the in many years of looking at discussions if they were then time. The judge is the one the jury is that the jury does permitted to discuss the case who gets a pass on this. . . . an amazingly good job. . . . and during deliberations. Ju- The judge doesn’t always get [T]he challenge was to figure rors were told that the videos a pass. Usually the judge is out how and why the jury is of their deliberations would the one that they think they able to do it.” remain confidential, but that can trust. But they’re very ob- those who objected to the servant. . . . The jurors watch Seidman’s presentation fo- filming could opt out. Only the judge, and they want to cused on three subjects: 1. the about five per cent did so. see if the judge is paying his challenges for jurors; 2. how bills or not paying attention jurors deal with their task, The range of cases involved or not being very attentive to both in the courtroom and was representative. Post- what they have to listen to. during deliberations; and 3. trial questionnaires were col- . . . And so what goes on in the dilemma posed by the lected from the judges and the courtroom for the jurors “embedded expert,” the juror attorneys. This was the first is more than what is going on who brings to the jury room opportunity researchers had on the podium or even in ar- particular knowledge about a had to have a systematic look gument from the attorneys. material aspect of the case. at jury deliberations. “They [lawyers] bring in the The Arizona filming project, “[F]rom the jurors’ point of evidence. Instead of giving which provided Diamond view,” Seidman explained, straight facts, they’re drama- with much of the data on “the courtroom is a kind of tizing it, . . . [T]hey [jurors] which she relies, was spon- a challenging place. I know understand that it’s theater. . sored by the American Bar you all are familiar and com- . . They also watch the par- Foundation, with some fund- fortable in the courtroom, but ties. [There was] an instance ing from the State Justice In- for most jurors, coming into where the attorney assured stitute, the National Science the courtroom is an unusual the jurors that the plaintiff Foundation, and Northwest- experience. It’s not what might have to get up and ern University. The innova- they’re used to. From their walk around. Well, one of tive Arizona judiciary had point of view, it’s inhabited the jurors actually kept track instituted a controversial by professionals who have of how . . .long the plaintiff experiment that permitted strange customs and speak in was able to sit in the chair. . jurors to talk about the case very odd ways, and they’re . . And this is a quote from among themselves in the going to ask the jurors to make this deliberation. ‘Never got course of the trial. a really important decision. out of the chair. You know, I was moving more than she As part of that evaluation, “What makes it worse is that cases were randomly as- the jurors are quite conscious L

THE BULLETIN w 25 diamond, con’t from 25 was. And my butt hurt. She with it, become more enthu- They ask questions from al- sat like a rock, didn’t she?’ siastic. Even the questions most half of the experts who that the jurors submit which testify, so that they are honing “[T]he attorneys don’t get off the judge doesn’t permit to in. And they tend to focus on either . . . . So during the jury be addressed to a witness legally relevant issues . . . . deliberations, we had a num- are questions that inform the T]hey have an intuitive sense, ber of observations. In fact, attorneys about what’s on in these tort cases at least, of in 30 of the 50 cases, there the jurors’ mind during the where the evidence is calling were observations about course of the trial. into question things that are [things] that we considered going to matter. to be off-stage, that is, things “As it turned out, in our that wouldn’t appear in the study and in other studies, “What kinds of questions ordinary appellate transcript. about three-quarters of the do they ask? Well, about 28 . . . [H]ere is a reaction to questions are questions that percent of their questions the attorneys that really was can be submitted to a witness, are about filling in the gaps. ‘on-stage.’ This was about because it’s the right witness They’re trying to figure it out. closing arguments. ‘So what and it’s consistent with the An active decision-maker is I found hard was listening to rules of evidence, and about a one who’s trying to figure it them at the end. I don’t know quarter of them can’t be. But out so they can get it right. what trial they were in.’ attorneys learn from those other questions. The jurors “The interesting insight, I “I know most good trial don’t mind when their ques- think, about what jurors are lawyers think that they are tions are not answered. . . . thinking that comes from respectful of the juries. This is They understand the rules of these questions [questions really important to be respect- the game, and they under- asked of witnesses] is the ful of them, because they’re stand that some of their ques- extent to which the jurors very sensitive to slights. And tions are not going to be . . . use these questions to cross- what our research shows is answered. check. . . . [F]rom the jurors’ that they notice quite a bit, point of view, they’re worried so that it makes sense to treat “Despite the controversy over about the people they can’t them as if they’re attentive. questions that are submitted trust, they’re worried that to jurors, . . . I think that is, the witnesses aren’t going to “In Arizona, the jurors are in fact, the trend, which actu- be honest with them. They permitted to submit ques- ally was true at common law, know that they’re facing con- tions for the witnesses in where the jurors were permit- flicting testimony. So nearly the course of the trial, and ted to submit questions. The half of the questions were ef- they provide some insight jurors’ questions are not ran- forts to cross-check, to under- about what jurors are think- dom questions. They tend stand why we should trust ing. Attorneys who have to ask more questions for the claim of the witness, what experienced questions dur- witnesses who give lengthier other evidence might we be ing trial sometimes are not all testimony, and they ask more looking at that would help us, that enthusiastic beforehand. questions for witnesses the not evidence that the witness And generally speaking, once judge has identified as im- couldn’t testify about, but the they’ve had some experience portant witnesses in the case. meaning, of how the expert,

26 w THE BULLETIN for example, knew what she remarks in deliberations did out that these embedded ex- said she knew. not display a valance toward perts are much less likely to one side or the other. “About be “extreme” jurors. “These are questions seek- a quarter of the jurors were ing information. There are jurors who individually ex- “They seem to have a more relatively few questions that pressed an extreme position. complicated view of the evi- have the appearance of ad- That is, they consistently dence,” she continued. “They vocacy in them. The juror sided with the plaintiff and aren’t all on one side or all on is in a different role than the mentioned only pro-plaintiff the other side. Now, that’s in advocate. The juror doesn’t things, or they consistently one way a valuable resource ask mostly questions that are sided with the defense and and in another way an uncon- an advocate’s role. They’re said only pro-defense things. trolled potential influence. trying to understand. So you might want to know After all, they are not sworn who those jurors are who are experts. They might not even “[A]ctual deliberations . . . expressing the pro-plaintiff, have the degree of expertise rarely begin without ambigu- pro-defendant extreme posi- that would qualify them as an ity as well as disagreement. tions, what I call the ‘extreme’ expert, and they are certainly Somebody almost inevitably jurors. We’ve been looking at not subject to cross-examina- calls for a vote. But in the the data now to see if we can tion by the opposing coun- most cases, that first vote is identify the characteristics of sel.” . . . Well, . . . jurors are derailed, and it’s derailed jurors who are more likely to told . . . ‘You will decide the because somebody raises an be extreme, and we haven’t facts from the evidence pre- issue, asks a question, says, found any real pattern to sented in court. . . . But jurors ‘I’m not ready to vote, I need background characteristics are also told, ‘Consider all the to look at this, I want to check that are associated with this evidence in light of reason, out the exhibits, let me see extreme view.” common sense, and experi- the instructions.’ . . . And ence.’ And so, you come to voting, when they do vote, it Her final topic was “embed- the courtroom, you come to occurs on a whole host of is- ded experts.” She pointed the jury room with some rel- sues. So, for example, they out that we have eliminated evant expertise, which is part may vote on whether there most of the occupational ex- of your experience.” really was an obstacle in the clusions, exemptions, and way of the defendant that people now sit on juries where About 20 per cent of the jurors blocked his vision, and had they have expertise which is in the Arizona experiment nothing to do with a final relevant to the case at hand. had expertise or background vote. It’s just a component We are increasingly seeing that was relevant to the case. vote. So they may vote on people not only with legal a number of things. That’s expertise, but also engineers, “Jurors are occasionally con- what deliberations actually nurses and medical techni- fused about this mixed mes- look like.” cians, many, many people sage that we get. . . . We serving on the jury who have don’t tell the jurors actually Diamond went on to explain relevant professional, occu- what they can do in most ju- that the majority of juries’ pational expertise. It turns L

THE BULLETIN w 27 diamond, con’t from 27 risdictions. . . . Now, the on their background or expe- tions and then, after you’ve question is, what kind of juror rience. So we alert the jurors. watered the potted plant, it behavior is appropriate? And ‘Please remember that your will grow green shoots. because of the Arizona study, fellow jurors, whatever their we got interested in this be- backgrounds, have not been “So, the challenge is to achieve cause we saw a number of subjected to the testing of a balance between equip- these instances. . . . There cross-examination, so you’ll ping and informing jurors is no right or wrong answer to have to evaluate.’ while providing appropriate this question, I am afraid. . . . guidance.” I don’t know how you tongue- “So finally,” she concluded, tie an expert in a jury by telling “what do we know about ju- Professor Diamond closed them that they can’t use that ries? Well, there’s a modern by asking the audience to fill part of their brain in express- trend to recognize that wheth- out questionnaires setting out ing an opinion. I think it’s er you like it or don’t like it, the various fact situations involv- very hard to get this to work. jurors are active decision-making impacted experts, ques- . . . What I would suggest . ers, they are trying to figure tionnaires that she had used . . is that it’s appropriate to things out, that recognizing with other audiences, to use alert the other members of the that involves giving them the in refining her research into jury to this characteristic of the tools that they can use to do this uncharted area of dealing jurors who may be on there, the best job they can. And it is with modern juries. and that it’s their opportunity away from the ‘potted plant’ to question the jurors if they image, that you just stick in a think that they are expressing whole bunch of evidence and some opinions that are based then add a dousing of instruc- bon mots And our mayor, that being me, is one of the few elected officials around here who actually isn’t a lawyer. Now, I will point out that my grandfather in Cincinnati back in the early 30s, Smith Hickenlooper, was in his day the youngest judge ever appointed to the Circuit Court of Appeals. And I will also say that my next-door neighbor, in childhood – our families were best friends – was a young man named Douglas Baird who still teaches, I believe he’s still teaching, at the University of Chicago, and teaches a class in contract law and refers back to his youth when there was a very competitive kid next-door who sometimes, because of changing conditions, believed that the rules of the whiffleball or touch football games should be changed in some way to accommodate those changing conditions. And in their family – I didn’t know this until a few years ago; a former student of his informed me of this – these were referred to as “Hickenloopholes.” He would use this in his introductory lecture for contracts about the malleability of all language.

Denver Mayor John W. Hickenlooper, welcoming the College to Denver

28 w THE BULLETIN phylli s coope r: Last surviving charte r m e m b e r di e s

Phyllis Norton Cooper, the last surviving char- year, she married Grant B. Cooper, a widower ter member of the College, died December 5, with two little girls. 2007 in Los Angeles. She was 92. She practiced law with the law firm of Cooper Cooper was the widow of Grant Cooper, one and Nelson, during which time she argued a of the founders of the College and its president case before the California Supreme Court. in 1962-63. The founding meeting was held on April 4, 1950 at Grant and Phyllis Cooper’s The first woman to be president of the USC Law home in the fashionable Hancock section of Alumni, she also was the first woman to be pres- Los Angeles. At the time, Phyllis Cooper was ident of the USC General Alumni Association. included as an honorary member. Active in a number of arts, music and charitable or- A graduate of the University of Southern Cali- ganizations, she received the USC Alumni Service fornia Law School in 1938, Phyllis Cooper was Award, the Half Century Trojans Distinguished one of only 200 women lawyers in the state at Service Award and was the first woman inducted the time of her induction into the College. into the USC Half Century Trojans Hall of Fame in 2006. She was a 1935 graduate of USC where she was vice president of the student body, elected as She is survived by three daughters, two sons, 12 Helen of Troy, a member of the Mortar Board, grandchildren and 16 great-grandchildren. the Amazons, the USC debate team and Alpha Chi Omega. During the spring of her senior

Upcoming National Meetings 2008 Annual Meeting, September 25-28 – Toronto, Ontario 2009 Spring Meeting, February 26-March 1 – Fajardo, Puerto Rico 2009 Annual Meeting, October 8-11 – Boston, Massachusetts 2010 Spring Meeting, March 4-7 – Palm Desert, California 2010 Annual Meeting, September 23-26 – Washington, D.C. 2011 Spring Meeting, March 3-6 – San Antonio, Texas 2011 Annual Meeting, October 20-23 – San Diego, California

THE BULLETIN w 29 s peaker relates b eatle s’ music to li fe cycle s The Long and Winding Road

The College has a tradition of including in its programs topics not related to the law that both entertain and leave the audience with something to take home and think about. This was such a presentation.

“I don’t know that the College has ever in its history had a presentation by a speaker with continuous mu- sical accompaniment, “ remarked College president David J. Beck at the end of the entertaining address of Dr. P. Terrence O’Rourke at the Denver annual meeting.

In what he described as “a bit of a change of pace from the scholarly legal presentations” that had preceded him, Dr. O’Rourke, in a combined refresher course in human psychology and a nostalgic trip for Beatle fans, used video clips of the music and experiences of the iconic Beatles to illustrate his theory that in their short professional career they went through the stages of adult development that Gail Sheehy describes in her book Passages and that the music that they created and Dr. P. Terrence O’Rourke performed reflected the stages that they were in.

Chief medical officer of Centura Health, Colorado’s largest family of hospitals and health care services, Dr. O’Rourke is responsible for the quality of patient care and of patient safety throughout that organization. Trained as a general surgeon with an emphasis on surgical oncology, he is a graduate of Georgetown University and of the University of Michigan medical school, where he also did his residency.

30 w THE BULLETIN For a good portion of his ca- iel Levinson,” O’Rourke con- trying twenties.’ It’s a time of reer he had been on the staff tinued, “did a prospective trying to succeed at whatever of Penrose St. Francis Hospi- study and followed forty- objectives you have chosen in tal in Colorado Springs, serv- eight adult males in Pennsyl- that prior period. For many ing as the medical director of vania for a number of years of us, that would be making its cancer center, as well as and concluded that they our careers, starting our ca- serving variously as chief of went through predictable reers and becoming success- surgery, chief of staff, and a and recognizable stages of ful in our careers, but it could member of its board of trust- development. He eventually just as easily be riding a mo- ees. A member of the Ameri- wrote a book called, The Sea- torcycle around the world or can College of Surgeons, he is sons of a Man’s Life. While he some other objective. the recipient of the Sword of was still collecting data and Hope Award of the American writing his book, he lectured “Around thirty is a time of Cancer Society. on the topic. self-assessment. She calls it ‘catch thirty.’ It is a period In introducing him, College “A young reporter from New of saying, ‘Is this what I re- past president Stuart D. York Magazine, Gail Sheehy, ally want to do for the rest of Shanor observed, “It is said attended one of his lectures, my life?’ If I’m in a relation- that a dedicated physician became intrigued with the ship, ‘Is this the person that I embodies the skills of multi- subject, wrote a magazine ar- want to live the rest of my life ple disciplines: science, soci- ticle and subsequently wrote with?’ ‘Is this where I want ology, psychology. And so it a book of her own called Pas- to live?’ and so on. So, a brief is with our next speaker, the sages . . . . Her book became period but a time of a lot of dedicated healer, a teacher, a a best seller; it is listed on the change. humanitarian, a leader, and Library of Congress list of the uniquely an entertainer.” most influential books of the “The next period is another 20th Century. stable period. She used the O’Rourke began by remind- term ‘rooting and extending the audience that Sig- “She outlined six stages of ing.’ It’s again a time of try- mund Freud in his classic development. The first of ing to achieve the goals that 1900 work, Interpretation of those she called ‘pulling up you’ve set out, but with ad- Dreams, outlined stages of roots.’ It occurs in the late ditional accountability and development in infancy and teenage years. It’s the first responsibility. early childhood — oral, anal, time you leave home. It’s genital — and theorized that a time you’re trying to es- “And then you go right into most of our personalities are tablish your own identity. the mid-life crisis. She pegged set by the time we start grade And there’s a multiplicity of that around thirty-five, called school. That view was first identities: career, philosophi- it the ‘deadline decade.’ I challenged in the early 1950s cal, cultural, political, peer think both of those words are by Eric Erickson in Childhood group, sexual identity, and important. ‘Decade’ because in Society, in which he theo- so forth. So, a time of a lot of it is not just a short period of rized that development con- turmoil. a few weeks or a few months, tinued at least into the early but frequently several years. adult years. “The next phase, which takes ‘Deadline’ because of the most of the rest of the decade importance of time, and two “Another psychologist, Dan- of the twenties, she called ‘the L

THE BULLETIN w 31 O’Rourke, con’t from 31 dimensions to time. One is The first song, Please Please hectic, busy life-style.” that time is running out, and Me, released in early 1963, all of those fantasies that we was the Beatles’ first Number The next song O’Rourke might have of winning a No- 1 hit. There was, he noted, a played, John Lennon’s song bel Prize, being the president very adolescent quality to it, I’m a Loser, he saw as a part of of the United States — or Ire- all about self-gratification. To the Beatles’ “catch thirty” pe- land — or becoming a billion- illustrate his point, he traced riod, their first period of self- aire or what have you, playing the history of the Beatles from assessment. “John was fed up, center field for the Yankees, their origin when John Len- basically, with their life-style. that those things are likely non, Paul McCartney, George They were constantly on the not to occur. Also that there’s Harrison and Ringo Starr, go. They were prisoners in not enough time, that time is came together, through their their hotel rooms wherever running out, not enough time formative years, playing in they went. They couldn’t go to do all the things that you seedy clubs in Hamburg, liv- out without being mobbed, want to do. ing in poor conditions while and he was tired of it, and they forged their identity. even contemplated suicide on “And you then emerge from a couple of occasions. And that mid-life crisis at a fork in Then he moved to what he this song, I’m a Loser, was his the road. And the two forks termed a “trying twenties” way of communicating that to are ‘renewal’ or ‘resignation.’ song, It Won’t Be Long. The the group. They all did that. ‘Renewal’ is looking at your- line from that song, “I’ll be A lot of times, the music that self and saying, ‘I’m okay. good like I know I should,” they wrote was just talking to Maybe I didn’t get everything he described as pretty typical each other.” that I wanted, but I’m happy of what one does during that with where I am.’ And you period. The Beatles’ breakout Two specific incidents of remove off into the latter half had come in October of 1963, jection had fueled this reac- of your adult life. ‘Resigna- when they appeared on a pro- tion. When they passed up a tion’ is saying, ‘If only I had gram called “Sunday Night dinner invitation from Imelda worked hard, if only I had a at the London Palladium.” Marcos, she “began a public- different spouse, if only per- They then had a royal com- ity campaign against them, haps I was in a different law mand performance at the and the Beatles had to sneak firm, then I would have met Prince of Wales Theatre, came out of the country in the mid- all those objectives.’ And to the States, were on the Ed dle of the night because of the so, you go back, recycle, and Sullivan show three times threat that they were going in some cases continue to re- and became very popular in to be arrested the following cycle through all of the earlier the United States and then day.” stages. throughout the world. The other episode grew out Leaving his mature audience “During 1964 and ‘65, there of a Lennon interview with contemplating which of those were times that out of the top an American newspaperman. two forks they had taken, ten songs on Billboard, six, “The newspaperman had O’Rourke then undertook to seven, eight of those songs asked him about the influence convince the audience of his would be Beatles songs. They of the Beatles on the American theory that these stages of life really became a worldwide youth, and John Lennon said were illustrated by the evolu- phenomenon. They had mov- that he was disappointed that tion of the Beatles and their ies. They had a variety of al- the Beatles had a greater in- music. bums and records and a very fluence on some of the youth

32 w THE BULLETIN than Jesus Christ. When the “From their music, they were They then went on a trip to story was published, the folk- becoming more sophisticated. the Far East that was a disas- lore is that John Lennon said You’ll see [in an accompany- ter. “They then had a news that they were more impor- ing video clip] there’s mem- conference. They were very tant than Jesus Christ, and bers of the London Sym- frank and said that it was a that evoked a strong reaction phonic Orchestra playing on mistake that they had gone. in some parts of this country. this song. And they were And many people thought the They were banning the Beatles incorporating many different Beatles were done, that they songs on the radio and having instruments and many dif- would no longer function as parties where they burned the ferent techniques into their a group. There was quar- Beatles records and so on.” studio recordings. This is reling within the group, they 1967, the so-called ‘summer lost their creativity, and that This was the first public rejec- of love.’ The song fits right in basically they were finished.” tion for this group that had with it. This was Woodstock experienced only success, and Haight Asbury. They had And then, in August of 1968, and that led to a decision to released Sgt. Pepper earlier in they released what was really stop touring. O’Rourke then this month. And it was really their masterpiece, Hey Jude. showed a video clip of their a very wonderful time for the This, O’Rourke postulated, last concert, on August 29, Beatles, but it didn’t last very was the “renewal” song. 1966, at Candlestick Park in long.” This had been their all “John Lennon had met Yoko San Francisco. The Beatles’ too brief “rooting and extend- Ono, was involved in a rela- public career in the United ing” period. tionship, was divorcing his States had lasted only two wife Cynthia. And one after- and one-half years. Implicitly conceding that no noon, Paul McCartney gave theory is perfect, O’Rourke John Lennon’s son, Julian, a June of 1967 “really was the looped back to the words of ride home in his Aston Mar- apex of the Beatles’ career in a 1965 song to illustrate the tin. On the way home, Julian terms of their happiness,“ he mid-life crisis, the “decade poured his heart out to Paul related. “They had all bought deadline.” about how sad he was that his manor homes in the English parents were divorcing, that countryside. John Lennon First, Brian Epstein, their life would never be the same, had been married in 1962 manager and counselor, com- and that life was not worth and had a five-year-old son. mitted suicide. Then came it. Paul tried to console him, George Harrison and Ringo their first professional flop, and then between the time Star were also married. Paul the Magical Mystery Tour. when he dropped him off at had a long-term relationship “It was going to be both a his home and drove to his with an English actress named movie and an album, and own flat, . . . he had written Jane Asher. They had time the idea was that they were a song which was originally off. They made more money all going to go on a bus and titled Hey Jules and then was than they ever thought they ride around England and film changed to Hey Jude. would. They were becoming whatever happened. Unfor- leaders, not only in music, but tunately, nothing happened, “The story really is about self- in dress and culture and even so the movie was pretty dull worth, even in the face of ad- political thinking to some ex- and got bad reviews, didn’t versity in a community that tent. And they were very, attract many viewers, and would support you. Paul’s very happy.” the album likewise was not successful.” L

THE BULLETIN w 33 O’Rourke, con’t from 33 own word today is, although son for them to stay together. someplace in your basement, the journey must be shoul- They had achieved success I hope you’ve enjoyed this bit dered alone, the strength of way beyond their wildest of nostalgia.” the community sees the sing- dreams, and the stress of er through. Pretty powerful being together was just too “ If you’re one of the Beatles- song. There’s a great line in much. . . . John Lennon an- haters, who blame the Beatles here when he says, ‘It’s just nounced privately that he for most of what’s wrong you, hey Jude, you’re good.’ was going to leave the Bea- with society, drug usage, the And that’s what he was try- tles in late 1969. And Paul promiscuity — and there’s ing to say. He emphasized it [McCartney] then, in April probably some validity to with the music. It started out 1970, publicly said that he that — I would encourage with Paul helping himself was leaving the Beatles, and you the next time that a Bea- on the piano. Over the next the Beatles never again per- tles song comes on the radio, couple of stanzas, the Beatles formed together.” Hey Jude, Yesterday, We Can all came in and then gradu- Work It Out, Let It Be, listen ally through the Coda, some Concluding, O’Rourke ob- to the words and see if you forty instruments from the served, “The Beatles are one cannot understand how these London Symphonic Orches- of those polarizing entities. four lads from Liverpool be- tra were added, representing You either loved them or came the ‘folklaureates’ for a how the community was in- hated them. Very few people generation.” tegrated into the music.” were neutral. If you’re one of those Beatlemaniacs that After that, the Beatles broke has all the albums and still up. “Really, there was no rea- has a poster of John Lennon

I’m used to following some of the most distinguished speakers of our time, but I agree with my seatmate that going last at this meeting and having to follow the Beatles is a bit much. Although, I might comment that from what I heard on the television today, Paul’s [McCartney’s] divorce may be adding to global warming. . . . bonThe debate [about mots global warming] challenges, it separates friends. If this were another era, David Scott would’ve challenged me to a duel over lunch the other day when we were discussing this topic. . . .

In the Boulder paper this week, it was announced that in Arapahoe, Colorado, the ski area had its earliest snow in 61 years. And, you know, if I were arguing that side of the case, I would consider that a bad sign. Maybe this was a new Ice Age we don’t know about. . . .

The first speaker will be David Doniger, who lives in Washington, D.C. He’s the policy director of the Natural Resources Defense Council, or NDRC. Your program says National. It is Natural Resources Defense Council. David is a lawyer, and he’s worthy of this fellowship in his attitude toward his law practice. He told me that he had argued a case before the United States Supreme Court, Chevron v. NDRC. He also, in the spirit of this College, felt compelled to inform me that he lost six to nothing. [Three justices did not participate.]

Past President James W. Morris III, bon mots introducing a panel discussion on global warming 34 w THE BULLETIN retiring regents and chai r s honor e d at de nve r m e eti ng

Retiring Regents and chairs of standing state and province committees were honored at the Denver meeting with plaques for their service.

Retiring Regents: Raymond L. Brown, Pascagoula, Mississippi, Charles H. Dick, Jr., San Diego, California, Brian B. O’Neill, Minneapolis, Minnesota, Thomas H. Tongue, Portland, Oregon.

Retiring Chairs of Standing Committees: William McGuinness, New York, New York, Richard C. Hite, Wichita, Kansas, Jeffrey S. Leon, Toronto, Canada, John M. Anderson, San Francisco, California, Ronald Welsh, Houston, Texas, Michael C. Russ, Atlanta, Georgia, Ralph I. Lancaster, Jr., Portland, Maine, Carol Elder Bruce, Washington, District of Columbia, Edward W. Madeira, Jr., Philadelphia, Pennsylvania, Hon. Barbara M. G. Lynn, Dallas, Texas, Peter S. Gilchrist, III, Charlotte, North Carolina, Frank G. Jones, Houston, Texas, Elizabeth N. Mulvey, Boston, Massachusetts, Paul T. Fortino, Portland, Oregon, Thomas G. Heintzman, O.C., Q.C., Toronto, Canada.

Retiring State and Province CHAIRS: Alaska-Matthew K. Peterson, Anchorage; Arizona-Robert E. Schmitt, Prescott; Arkansas- Robert M. Cearley, Jr., Little Rock; Southern California-Paul S. Meyer, Costa Mesa; Delaware-Bartholomew J. Dalton, Wilmington; Florida-Sidney A. Stubbs, West Palm Beach; Upstate Illinois-Stephen D. Marcus, Chicago; Kentucky-Frank P. Doheny, Jr., Lousville; Massachusetts-Richard T. Tucker, Worcester; Nevada-J. Bruce Alverson, Las Vegas; New Jersey-Peter L. Korn, Springfield; New Mexico-Terry R. Guebert, Albuquerque; Ohio-Gerald J. Rapian, Cincinnati; Oklahoma-Michael P. Atkinson, Tulsa; Rhode Island- Michael P. DeFanti, Providence; South Carolina-R. Bruce Shaw, Columbia; Tennessee- Sidney Gilreath, Knoxville; Vermont-John T. Sartore, Burlington; Washington-Evan L. Schwab, Seattle; Wyoming-Tom C. Toner, Sheridan. CANADA: British Columbia-Geoffrey Cowper, Q.C., Vancouver.

THE BULLETIN w 35 s peake r s de bate role of coalin e n e rgy production and g lobal warming.

David D. Doniger, a lawyer and Director of the Natural Resource Defense Council, and Frederick D. Palmer, also a lawyer and Senior Vice President of Government Relations for Peabody Energy, the world’s largest shareholder-owned coal company, engaged in a public debate at the Denver meeting.

The debate centered on coal as the major engine for the production of essential energy in this United States and at the same time the largest producer of carbon in the atmosphere.

Doniger served for eight years during the Clinton administration in the Environmental Protection Agency and has been involved both in formulating policy and in litigation on environmental issues.

Palmer, a private practitioner for eight years, is a former assistant to Congressman Moe Udall and the former CEO of the Western Fuels Association.

In introducing the two speakers, Past President James W. Mor- ris III noted that the debate over global warming implicates science, politics and even philosophy. The very existence of a problem has been the subject of debate. The degree of danger David D. Doniger and the timeline is hotly debated. Learned scientists disagree on the scientific factors involved. The debate pits citizens against citizens. It pits nation against nation.

“The demands for energy will increase,“ Morris observed. “Energy fuels the countless advances in our society and the quality of our life, but the issue can be phrased by others as to whether we are dealing with the preservation of a standard of living or indeed the preservation of life itself. What sacrifices will be made and who will make them?”

Leading off, Doniger observed, “This has been a year of extremely rapid change in the global warming issue. The sci-

36 w THE BULLETIN ence debate really is over. The pointing out that many of the He noted that “the policy vac- Nobel Prizes yesterday really effects of pollutants already in uum creates tremendous uncer- represent that. There’s nobody the atmosphere are already in tainty for companies trying to really questioning that human the pipeline, and that “it makes plan their investments. How emissions of carbon dioxide a great deal of difference how do you make a choice among and other greenhouse gases much more pollution we put fuels and technologies for pow- are causing the world to warm. into the atmosphere in terms of er plants that will be around The question is really what to how high the temperatures and for 50 years if you don’t know do about it.” the impacts will go.” whether there’s going to be a strong-or a weak-or no-carbon “The legal debate,” he asserted, He went on to assert that there policy in that period? It can “is largely over. . . . [In] Massa- is “a growing policy consensus make a very good investment chusetts v. EPA, . . . the Supreme that we need a different ap- look very stupid if the policy Court affirmed that under the proach. Voluntary approaches changes five years or ten years U.S. Clean Air Act there is au- championed by this Adminis- into the life of that plant. So, thority to control pollution that tration have failed to make any with the federal vacuum, it has causes global warming, that car- real difference in the amount been filled, in part, by state ac- bon dioxide is a pollutant just of emissions that our country tion. There’s a lot of litigation like carbon monoxide or sulfur is responsible for. There is a under way . . . .” dioxide. They’re all chemicals growing consensus that we thrust into the atmosphere that need a mandatory approach. “One of the manifestations . . . ,” are subject to the controls under That consensus in one way, in he asserted, “is that the coal the Clean Air Act if the adminis- a partnership, the U.S. Cli- trator of the EPA considers that mate Action Partnership the science demonstrates that announced earlier this year, there’s harm. What’s going on . . . now grown to more now is a very strong policy de- than 30 companies and six bate, first at the state level. of the top environmental groups supporting national “So what’s really at stake? Most legislation to put a cap of the scientists, including those on emissions, reduce the honored with the Nobel [the emissions over time, and day before this presentation], . use the marketplace, so- . . the companion award to the called emissions trading, to science panel that went with achieve those results at the Vice President Gore’s award, lowest possible cost.” stress that we must stop the average temperature of the Doniger noted that, “We globe from rising by more than used this approach to curb another 2 degrees Fahrenheit acid rain. We’ve used it above where it is now. That for 20 years, and it works. Frederick D. Palmer happens to correspond to a 2- We’ve used this approach degree Celsius increase from to curb the pollutants that rush is ending. There was, four, the levels before the beginning damage the ozone layer, and five, six, eight years ago, a con- of the Industrial Revolution. To it works. And this partnership clusion in the energy industry get above these levels puts at has agreed on rather ambitious that they ought to stop build- risk a great deal of environmen- targets, near-term emission ing natural gas plants. They’re tal and public health harm.” reductions and the need to re- not ready to build new nuclear duce American emissions by 60 plants. They would build lots Doniger went on list some of to 80 percent by the middle of the impacts of global warming, this century.” L

THE BULLETIN w 37 speakers debate, con’t from 37 of new coal plants. The risks, at this for fifty years longer than out on federal and state legis- perceived risks, associated with has China. The other countries, lation. You can also put your that are now taking their toll, he asserted, are waiting for us to skills to work in global warming so that the coal rush is ending. act. “And when we lead, they litigation.” Many new coal plants have will follow,” he said. been blocked. My organization Fred Palmer, speaking for the and others are trying to block He reminded the audience that coal industry, asserted that new commitments to coal plants the Montreal Protocol, signed there were propositions assert- unless they have a technology a little more than twenty years ed by Doniger with which he called carbon capture and stor- ago to protect the stratospheric agreed and some with which he age, where you take the carbon ozone layer, includes binding ob- disagreed. which would otherwise be go- ligations on both industrial and ing into the atmosphere as CO2, developing countries that have He asserted that it is an over- capture the gas and pump it back “marched together to phase out statement to say that the sci- under the ground. . . . . and we 95 percent of the ozone-deplet- ence is set. “Certainly there is a actually favor this technology to ing chemicals that threaten to consensus in certain parts of the the extent that coal is going to erode the barrier that protects us scientific community on the im- continue to be used.” from skin cancer.” He asserted pact of CO2 emissions on global that it is “a world success story warming and global climate Noting that waiting to start this of cooperation between both change, but particularly as we policy will result in disruptive industrial and developing coun- get this into a legal mode, and reductions done at such speed tries. We did it there, and we we are going to be in the legal as to exact a much higher toll on can do it again.” mode . . . there’s going to be a lot the economy in the future, Do- of arguing about the science.” niger said, “[W]e favor to start Continuing, he pointed to on- now. We really favored starting going negotiations to succeed Conceding that humans of course ten years ago, but we kind of lost the Kyoto protocol and ongoing impact climate, he asserted that, it there. The sooner the start, the litigation in various forums. “[T]here will be ongoing debate smoother the transitions can be.” over the amount, the timing, the Referring specifically to the severity, both positive externali- Doniger pointed to pending leg- coal-fired power industry, he ties and negative externalities, islation to increase fuel economy asserted, “[I]n addition to build- because at the end of the day, standards and require a greater ing wind energy facilities and this is about people.” proportion of wind energy and in addition to energy efficiency other renewables, as well as measures, which can cut down He noted that the preceding legislation directly addressed the need we have for electricity week, “[A] judge in England to global warming, bills which without sacrificing the comforts entered an order in a case hav- would require a high percent- and services that we want, . . . ing to do with the distribution age of reduction of carbon emis- we recognize that there are go- of Vice President Gore’s video sions by a stated time, as signs ing to be more coal plants built. to students under a law that ap- of progress. He predicted quick But we favor them being built plies there that prohibits parti- action in 2009, no matter which with this technology which pro- san and political material from person is elected president. vides that you could have the being disseminated. It allowed electricity without the global . . . the video to go forward, but Conceding that the United warming pollution if you stick required there basically to be a States cannot solve this problem that pollution back geologically warning label put on it that said by itself, he noted that we are underground.” the video is, in fact, partisan and tied with China as the world’s political, and made nine specific largest emitter, but that our He concluded by urging the au- findings of misstatements or per capita emissions are much dience, “[Y]ou can help. You’re incorrect statements of material higher and that we have been very influential people. Speak fact, including this proposition

38 w THE BULLETIN of melting sea ice and increasing world’s demand for energy will suggesting we don’t. But we sea levels.” continue to increase and that need to build these coal plants there are many economic and now. And that’s why. Because “However, having said that,” he policy reasons for meeting that of the NERC reliability assess- asserted, “ I’m not here today to demand. He then discussed at ment which says we have a talk about the science of climate length the comparative merits problem: This is the increase in change. I’m here today to talk of various fuels used to gener- generation and the increase of about coal, and in that context, ate electricity, including issues the demand, and they obviously I’m here to talk about the great of supply and international po- don’t match. They say we have reason coal can meet our envi- litical instability. He pointed out a problem coming at us pretty ronmental and national security the downside of making elec- quick because we’re not putting needs, including a path for re- tricity more expensive. “[U]se in enough base load capacity, solving issues relating to CO2. . it wisely, we must. Use it better, coal and nuclear, to meet our de- . . I am a lawyer and I’m repre- we must. On the path to zero mand, which you all are driving. senting Peabody, and . . . it is our emissions, absolutely. Can we . . . [I]t’s all of us collectively goal to be an active participant not get out of the box? No. Can driving this, and we have a reli- in creating a legal framework so we cap it? No. . . . The world ability problem.” that we can use coal in many new population is increasing, the and different ways, along with standard of living is increasing. Palmer’s solution: “You put in its traditional market, electric- It will continue to increase. . . . these coal plants today that we ity, with zero emissions. That is Hundreds of millions of people need for reliability, state of the our goal, and that’s where we’re have come out of poverty in the art, clean coal technology, fifteen headed.” last five years in China using percent lower CO2 emissions. more energy. . . . Energy de- You develop carbon capture “So why do we use coal,” he mand is going to continue to go and sequestration through our continued, “and why is coal so up and up and up.” future effort . . . You develop controversial? Well, we use it the technology to retrofit what because we have it. Twenty-sev- “So, turning to the positive,” he we have on the ground today to en percent of the world’s supply argued, “coal to liquids, coal to achieve the great vision of zero is in the United States, and fifty gas, coal to electricity, all with emissions from coal units. Se- percent of our electricity is gen- carbon capture and sequestra- questration, we have 3.5 trillion erated with it. . . . It’s low cost. tion can give us a path to true tons of sequestration capability, It’s abundant. It’s domestic. energy independence: always which is a lot more than the coal It’s secure and it’s increasingly available, affordable energy to that we have. [B]ut we need to clean.” grow our economy, allow our make sure that a legal frame- people to live their lives, allow work exists so that when we can As for new technology to reduce your children and their children sequester the carbon, as opposed carbon emissions from the use of to live as well as or better than to theoretical, will we have the coal, Palmer argued that the rest you have, and to take pressure ability to do it? We [need to] get of the world will follow only if off the caldron of the Middle federal R&D tax credits and the the United States develops a East leading to these huge con- like to have a long-term carbon technology to use coal with zero flicts that we are putting so management program to meet emissions. “And the only way many lives and treasure into. the concerns of the American to develop that technology,” he That’s the thesis. people and the world commu- asserted, “is to have a healthy nity that will deal with this, and industry and want people to in- “[A]re new coal plants being then we’ll export this technol- vest in it instead of treating them built? Absolutely, they’re be- ogy overseas.” in a punitive way and saying, ing built here. These are highly ‘We don’t want this anymore.’” profitable plants are going to be built. . . . Do we need policies Palmer pointed out that the to manage carbon? Yes. I’m not

THE BULLETIN w 39 COLLEGE INSTALLS MADAME JUSTICE LOUISE CHARRON AS HONORARY FELLOW

Madame Justice Louise Charron, the first Franco-Ontarian (a citizen of Ontario whose native tongue is French) to be appointed to the Supreme Court of Canada, was inducted as an honorary fellow of the College at its annual meeting in Denver.

Born in Sturgeon Falls in far northern Ontario, where her family has lived for several generations, she is a 1976 graduate of the University of Ottawa. She was called to the Bar of Ontario in 1977 and practiced in a general practice from until 1980. She then became a prosecutor in the Crown Attorney’s Office for a period of five years. She taught law at the Uni- versity of Ottawa Law School as an assistant professor from 1985 to 1988.

In 1988 she became a trial judge in the district court in what became the Supreme Court of Ontario 1988. She had sat as a deputy judge of Nunivut, the eastern Arctic district, where she presided in cases in Pond Inlet and in Clyde River in the Arctic North of Canada. In 1995, she was appointed to the appellate court in Ontario, where she sat until 2004, when she was appointed a judge of the Supreme Court of Canada.

Madame Justice Louise Charron In introducing her, past president David W. Scott, QC, noted that Justice Charron has a reputation as an outstanding mis- tress of the written judgment in both French and English, elegant and persuasive in her use of both languages.

While serving as a prosecutor in the Crown’s Office, she met her husband, Bill Blake, who was serving as a police officer. They worked together as prosecutor and investigator on a number of cases. They have three children, one son a gradu-

40 w THE BULLETIN ate of Harvard, who taught at “I’m an optimist. . . . [T]he prob- you walk out of that room, quite the University of Delaware and lems that we face today are not often, and you say, ‘That was is presently in law school. new; they’re simply resurfacing great,’ and someone asks you, in different ways with changing ‘What was that about?’, well, Successively, a lawyer in private societal conditions. They’re you’d have a hard time explain- practice, a prosecutor, a law pro- also not insurmountable, being what it is. fessor, a trial judge, an appellate cause thousands and thousands judge, and now a judge of the of lawyers practice their craft “So I have this analogy that I Supreme Court of Canada, she every day in accordance with kept repeating to myself as an is the latest addition to a strong their true calling, and we’ve all educator, that you’ve got to at- contingent of women judges on learned in the last decades how tach, you’ve got to have these the Canadian Supreme Court, to conquer these problems. . . . balloons to uplift, but you’ve where four of the nine judges Much remains to be done.” got to attach the strings firmly are women. in the ground. And I think that She related how a young lawyer particularly applies to matters In accepting the Honorary Fel- to whose organization she was such as ethics and professional- lowship, she paid tribute to the recently scheduled to speak had ism. The concepts only connect trial bar: “Even though I have asked her, “Could I respectfully when they’re firmly rooted in been a judge for nineteen years suggest, if you haven’t chosen a the practice. Hence the neces- now, I still regard my years as topic, would you talk about the sity for tools such as the ones a trial advocate, most of which importance of ethics in the pro- you create. I strongly encourage were spent doing criminal pros- fession, but particularly could you to create even more — more ecutions, as the most exciting you tell us what it means?” material, and sometimes more and in many respects the most probing material, of ethical fulfilling years of my career. Continuing, she observed, considerations that arise in the And in truth, I have to admit “[T]here is a need for guidance practice of law. that it surprises me that I feel on questions of ethics and ques- this way, because when I did tions of professionalism. . . . “The more difficult questions move on — I wanted to at the [L]et me assure you, as a former have no easy answers. There’s time — and I have truly loved law professor and as a judge, that quite often not just one correct and still do love, being a judge these tools [the College’s teach- answer. And you are the ones in each incarnation, nonethe- ing materials on the subject] who know what ethical problems less, my years in court as a trial are crucially important. You arise in the course of practicing advocate remain truly special. . cannot teach legal ethics and law, in particular trial advocacy, . . [F]rom a professional stand- professionalism in the abstract. because you live those experi- point, I believe I still regard my . . . {W]ithout more, a strictly ences. More importantly, you’re years as a trial advocate as most theoretical lecture on ethics and the ones who can provide guid- fulfilling probably because of professionalism usually triggers ance in finding answers to these their intensity. . . . [T]hat’s the what I call the ‘helium-filled problems that can’t be found period of time where I learned balloon syndrome.’. . . You in books. They’re discovered the most. . . . [I]n no other know the feeling when you hear through experience.” role have I felt more part of the a dynamic speaker talk about action.” feel-good ideas in principle. It’s To illustrate her point, she re- as if the speaker was pumping ferred to material written by Focusing her remarks on the helium into a balloon and let- Canadian Fellow Earl Cherniak. need for teaching of profession- ting balloons go up in the air. In it, he explained in practi- alism and ethics, she observed, Everybody feels uplifted. But if L

THE BULLETIN w 41 charron, con’t from 41 cal terms the application of the the law will likely result in a it really mean in our practice?’ ethical rule that a lawyer cannot client changing his evidence to [W]e should try to reach our counsel or be a party to the fab- meet it, it cannot be done.” audience more, be they students rication or presentation of false of law schools or continuing evidence. He described the di- As she continued to discuss education programs, and work lemma that arises in everyday these issues informally with the together in trying to weave this practice in the preparation of group of young lawyers she was into the instruction.” witnesses, particularly a client, addressing, one young lawyer in drawing a line between telling said, “You know, we have guid- Concluding, she urged the Col- the client what the client needs ance in our firm as to how we lege, “It’s our responsibility, to know about the law and facts should conduct interviews and each and every one of us . . . to known to the lawyer to direct everything, but I never under- provide the necessary leader- his mind and memory to the rel- stood why that was so until this ship in these areas. And you are evant areas that he must testify afternoon.” most well suited to do it . . . . to and crossing the line, where So I commend you all for your the lawyer’s advice becomes “Judging,” she continued, “from extremely valuable contribution counseling the client to give a many discussions I’ve had over over the last almost six decades, version of the facts different the years, mostly with law clerks and your continuing efforts to from the truth. That, he states, and young graduates, in my ensure that lawyers continue to is where the advocate’s honor view, the instruction in the fields fulfill every day the honorable is most tested, since invariably of legal ethics and professional- duties they have to their clients, such interviews take place in the ism is often wanting. Many of to the courts, and ultimately to privacy of his office. my clerks have indicated their society.” only -- their only exposure to His materials contained practi- that was to a mandatory bar cal fact situations to illustrate admission course, a take-home his point. His advice on where exam that they’d fill out. And to draw the line: “The best that in discussion with them, they all can be said is that if discussing needed advice on ‘What does

h ig h lig ht: Past President David Scott presents Honorary Fellowship to Honourable Madame Justice Louise Charron.

42 w THE BULLETIN Justice Charron is my neighbor. We live downtown, and she lives about a block away, has moved there since her appointment in 2004. And the neighbors know that there is a Supreme Court judge living in that house. So when I walk to work, I always wave as though — she’s, of course, gone to court — but I wave, anyway, just so the neighbors will know that I know the judge of the Supreme Court who lives in that house. . . .

[I]n the Crown’s [Prosecutor’s] Office, she met her husband, Bill Blake, who was a serving police officer. They worked together as prosecutor and investigator on a number of cases and became friends and ultimately a relationship developed and they married. In their last case . . . it is reputed Bill Blake said, “The accused got sixteen years, and I got life.”

Past President David W. Scott, Q.C., introducing bon mots Madame Justice Louise Charron * * * * * * * * * * * *

When I saw the list of speakers for this weekend’s meeting, I felt particularly honored that I had been invited alongside two women that I have long admired for their principled and independent voices, the Honorable Sandra Day O’Conner and the Honourable Mary Robinson. Of course, among their numerous accomplishments, as we all know, these women share one remarkable feat. Sandra Day O’Connor as the first woman appointed to the Supreme Court of the United States, and Mary Robinson as first woman President of Ireland, have each broken through the glass ceiling. Because they have done so, it’s widely believed that this has eased the path for the women that follow in their footsteps. That’s true to a large extent.

However, I’m here to tell you there’s a downside to it, as well. Because of women like them, it’s common, it’s just normal, for a woman to achieve whatever her ambition and good fortune would bring together. In my case, what could it possibly be to anyone that I’m the seventh woman on the Supreme Court of Canada. Our Chief Justice has been happily occupying the post of Chief Justice, as well. You know, it gets worse. I’m not even the first woman named Louise who was appointed to our Supreme Court. Louise Arbour was there before me. I got her hand-me-down as a gown. . . .

The Honourable Madame Justice Louise Charron, Accepting an Honorary Fellowship bon mots

THE BULLETIN w 43 I n M e m o r i a m

We want to do justice to the lives of every Fellow who has passed from among us. Our tributes to them have been perhaps the most well-received feature of recent issues of The Bulletin. Despite our best efforts, the College’s recent request for address updates produced information that, in addition to the deaths of sixteen Fellows for whom we had been sent published obituaries, nineteen Fellows whose deaths had not previously been known to the College had died, one of them in 2000, seven years ago. We have done the best we could from College membership records, old directories and the Internet to gather information about these nineteen. Our tributes to them are, nevertheless, less complete than we would like them to be. In the interest of doing justice to deceased Fellows, we request that when any one of you becomes aware of the death of a Fellow, you send a copy of the obituary to the College office, copying the appropriate State or Province chair, so that the College, your local committee and The Bulletin can acknowledge the death promptly. We owe that to one another.

Henry P. Andrae (69), a Fellow Emeritus from Jef- his law review. He had practiced all his career with ferson City, Missouri, died January 8, 2008 at age Dechert, LLP and its predecessor firms. 93. A graduate of the University of Missouri and of its law school, his law practice was interrupted Michael H. Cain, C.M., Q.C. (85), a Fellow Emer- by World War II. Entering the Army as a private, itus from Chicoutimi, Quebec, died September 12, he rose to the rank of captain, served on the staff 2007 at age 78. A senior lawyer of Cain Lamarre of General Douglas MacArthur in the Philippines Casgrain Wells, he received his undergraduate and and Japan and was awarded a Legion of Merit. law degrees from McGill University. His survivors Returning from military service, he formed the firm include his wife, a daughter and a son. of Hendren & Andrae, LLC, in which he practiced until his retirement. He had served in the Missouri House of Representatives both before and after Phyllis N. Cooper (50), Studio City, California. World War II. Active in civic affairs, he had chaired The passing of the wife of College founder Grant or co-chaired a number of local bond campaigns. Cooper is noted in a separate article in this issue. An avid outdoorsman, he had fished, shot or golfed She had last attended the Spring 2007 College in 54 countries and in all 50 states. A widower, his meeting at La Quinta. survivors include three daughters. John Jay Corson IV (82), a Fellow Emeritus from Matthew J. Broderick (80), Philadelphia, Pennsyl- McLean, Virginia, died March 27, 2007 at age vania, died August 30, 2007 at age 79. A graduate 71 of congestive heart failure. A graduate of the of the University of Pennsylvania and a magna cum University of Virginia and of its law school, he had laude graduate of its law school, he was a member served three years in the Air Force Judge Advocates of the Order of the Coif and of the editorial board of General Corps in Turkey and in Virginia before

44 w THE BULLETIN joining the predecessor firm of McGuire Woods, teer in his local legal services program. A founding from which he retired in 2000. He was a past presi- partner in the Austin firm Scott, Douglas & McCon- dent of the Virginia State Bar and of the Virginia nico, LLP, he had practiced from his firm’s Dallas Association of Defense Attorneys and had served office since 1991. His survivors include his wife, a in the ABA House of Delegates for six years and as sister, three sons, a daughter and two stepsons. a Commissioner in Chancery in the Fairfax County Circuit Court for eight years. His survivors include Hon. Justice E. Robert A. Edwards (92), a Judi- a son and three daughters. cial Fellow from Vancouver, British Columbia, a Judge of the Supreme Court of British Columbia, Jack B. Coulter (73), a Fellow Emeritus from the trial court of general jurisdiction, died October Roanoke, Virginia, died September 13, 2007 at age 5, 2007. He was born in 1933. 83 of complications following back surgery. He had attended Washington and Lee University until Jack W. Flock (77), Tyler, Texas, died October the outbreak of World War II, when he entered and 18, 2007 at age 94. A graduate of Tyler Junior Col- graduated from the United States Naval Academy. lege and the University of Texas Law School, he He completed tours of duty on the heavy cruisers was a naval officer in World War II. His destroyer USS Vicksburg and USS Manchester in the South participated in landings on Bougainville, Green and Pacific Theater and after the war, participated in the Emirau Islands. He was awarded a Bronze Star for Bikini atomic bomb trials aboard the battleship USS his service. Since returning to civilian life, he had Pennsylvania. A graduate of Washington and Lee practiced with Ramey & Flock, PC and its prede- law school, he had practiced law until 1975, when cessor firms for his entire career. He had served his he was appointed a Circuit Judge. After his retire- community in many capacities, including playing in ment in 1989, he had been associated with Coulter the community band, and had served on the Board & Coulter in Roanoke. An active community of Trustees of his undergraduate alma mater for leader, he had served on the local school board, and twenty-four years, twice winning its Distinguished as president of the W&L Law School Association. Alumnus Award. His wife survives. He had led the creation of the Roanoke Valley War Memorial. A lifelong student, he had earned a Masters of Judicial Process from the University of Craig W. Gagnon (89), a Fellow Emeritus retired Virginia. His survivors include his wife, a brother, from the Minneapolis, Minnesota firm, Oppen- two sons and a daughter. heimer, Wolff & Donnelly, in which he had served as a member and past chair of its executive committee, died February 16, 2008 at age 67. A graduate Frank Douglass (89), Dallas, Texas, died Novem- of the University of Minnesota and valedictorian of ber 23, 2007 at age 74. An Eagle Scout who had his law class at William Mitchell, whose board of worked his way through college as a roustabout and trustees he had chaired, he had also been involved roughneck in the oil and gas fields around his home, in both banking and real estate. An avid hunter and he was a cum laude graduate of Southwestern fisherman, his office was for many years decorated University in Georgetown, Texas. After serving in with an eight-foot-tall Kodiak bear, a hunting tro- the Air Force in the Korean Conflict, he attended phy. His survivors include his wife, five daughters, law school at the University of Texas. An astute one son, two step-daughters and two brothers. businessman who helped found two banks and numerous oil and gas ventures, he was one of the early lawyers to be certified as an oil and gas specialist in Frank Joseph Glankler, Jr. (78), Memphis, Texas. He had been honored by his undergraduate Tennessee, died November 21, 2007 at age 81. A university with its Distinguished Alumnus Award Marine in World War II, he was awarded a Purple and with numerous awards from legal organizations Heart. He attended Vanderbilt Uni- in his field of specialty. He was also an early volun- versity and then went to law school L

THE BULLETIN w 45 at night at Southern University College of Law. A Northern District of Illinois, died in March 2004. founder of the firm of Glankler Brown, PLLC, Born in 1917, he had served in the United States his obituary notes that “his most cherished induc- Army in World War II and had been President of tion was in 1978 in the American College of Trial the Illinois State Bar Association before his ap- Lawyers.” His survivors include his wife and ten pointment to the bench. children. George F. Kugler, Jr. (70), a Fellow Emeritus John P. Hauch, Jr. (83), a Fellow Emeritus from from Haddonfield, New Jersey, died August 1, Haddonfield, New Jersey, retired chair of Archer & 2004. A graduate of Temple and of the Rutgers law Greiner, PC, Camden, New Jersey, died June 20, school, he had practiced with the Camden, New 2005. He did his undergraduate work at Dickinson Jersey firm of Archer & Greiner, PC. and Texas A&M and earned his law degree at the University of Pennsylvania. He had served in the John D. LaBelle (66), a Fellow Emeritus from Army Air Corps in World War II. Manchester, Connecticut, died November 1, 2006. Born in 1915, he was educated at Colgate and John M. Hollis (73), a Fellow Emeritus from the George Washington University Law School. Virginia Beach, Virginia, retired from the Norfolk Before his retirement he had practiced with the firm Willcox & Savage, PC, died January 23, 2006. Manchester firm of LaBelle, LaBelle & Naab, PC. Born in 1923, his undergraduate and law degrees were from The College of William and Mary. The Right Hon. Antonio Charles Lamer, retired Chief Justice of Canada, an Honorary Fellow from Patrick F. Kelly (76), Wichita, Kansas, a retired Ottawa, Ontario, died November 24, 2007 at age United States Judge for the District of Kansas, died 74 from heart disease. Born in east-end Montreal, November 16, 2007 at age 78 after a long illness. he attended College St.-Laurent and received his A graduate of Wichita State University and of the law degree from the Université de Montréal. He Washburn University Law School, he served in the had served in the Royal Canadian Artillery before Air Force as Assistant Staff Judge Advocate before entering law school. A practicing criminal lawyer entering private practice. Appointed to the bench and a professor of law, he was appointed to the in 1980, he was a colorful figure. His ruling in the Quebec Superior Court and to the Queen’s Bench 1991 “Summer of Mercy” abortion clinic protests, of the Province of Quebec in 1969. Before his first banning protestors from blocking the entrance appointment to the bench, he had been chairman to an abortion clinic and ordering U.S. Marshals of the Quebec Society of Criminology, a member to provide security, resulted in death threats, a of the Board of Directors of the Canadian Hu- confrontation with protestors on his front lawn, man Rights Foundation and chairman of the Law round-the-clock protection and a strained relation- Reform Commission of Canada. In 1978 he was ship with his church. Well-known for his sense of elevated to the Quebec Court of Appeal and he was humor, Judge Kelly kept an abortion protestor’s then appointed to the Canadian Supreme Court in sign reading “Don’t Re-Elect Kelly” in his library. 1980, two years before the Charter of Rights and A staunch proponent of judicial discretion, he once Freedoms was enacted. A civil libertarian, a prolif- held the Sentencing Guidelines unconstitutional. ic writer and an influential thinker, he was regarded He had also presided over a widely publicized toxic as a principled guardian of judicial independence. shock syndrome case against the manufacturer of He became Chief Justice in 1990, served in that tampons. capacity for ten years and retired from the bench in 2000. During his tenure, the Supreme Court Hon. Alfred Y. Kirkland (67), Elgin, Illinois, a wrestled with many major issues of the day-abor- retired judge of the United States Court for the tion, euthanasia, aboriginal and minority rights

46 w THE BULLETIN and the possible secession of Quebec. After his ate of The Citadel and of the University of South retirement, he was a senior advisor to Stikeman El- Carolina Law School, he had served on numerous liott and a professor of law. He was the recipient of civic boards and on the Board of Governors of the many honors and an honorary bencher of Lincolns South Carolina Trial Lawyers Association. He Inn. In private life, he was known as an informal was also a member of the South Carolina Supreme man with a common touch who could often be seen Court Committee on Character and Fitness. His on a public bench, eating a hotdog and chatting survivors include his wife, a daughter, a son, two with ordinary citizens who had no idea who he was. sisters and his father, a Fellow of the College and His survivors include his wife, Danièle Tremblay- a former State Chair. Lamer, herself a judge of the Federal court, a son and two step-children. Stephen Perry Millikin (86), a Fellow Emeritus from Greensboro, North Carolina, retired from Russell E. Leasure (63), a long retired Fellow Smith Moore LLP, died October 29, 2007 at age Emeritus from Tucson, Arizona, died November 15, 81. After a summer in college, he entered the 2007. He had served as an officer in the U.S. Army United States Navy at age 17. After service in in World War II. various places in the South Pacific Theater, he was assigned to a destroyer escort, which at the Sherman V. Lohn (72), a Fellow Emeritus from end of hostilities was dispatched to clear mines in Missoula, Montana, retired from Garlington, Lohn the vicinity of Shanghai, China. A graduate of the & Robinson, PLLC, died December 10, 2007 at University of North Carolina at Chapel Hill, and age 86 after a short illness. His education at the an honors graduate of its law school, he was as- University of Montana interrupted by World War sociate editor of his law review and a member of II, he served in the U. S. Army, then returned to the Order of the Coif. He later served as president complete his undergraduate and law school educa- of the UNC Law Alumni Association and was tion. He also earned an LL.M. from the Harvard honored with his local bar’s pro bono award. His Law School. A former State Delegate in the ABA survivors include his wife, three children and two House of Delegates, he had also been a director step-children. of the American Judicature Society and a member of the Senior Advisory Board of the Ninth Circuit Francis D. Morrissey (78), Chicago, Illinois, Court of Appeals. He had been honored by both his long-time partner at Baker & McKenzie, died undergraduate and law schools and had received the October 11, 2007 of a metastasis melanoma at William J. Jameson Award for Professionalism. A age 77. Starting on the road to the priesthood at remarried widower, his survivors include his second St. Mary’s of the Lake University, he switched to wife, a daughter, two sons and two brothers. law and graduated from Loyola of Chicago, where he was editor of his law review. After retirement Robert W. Lutz (76), a Fellow Emeritus from Chil- from his firm, he taught at John Marshall Law ton, Wisconsin, retired from Lutz, Burnett, McDer- School, where he assembled a group of students mott, Jahn & King, LLP, died September 25, 2007. known as the “Morrisey Scholars” to write articles Born in 1925, he was a graduate of the University on legal ethics and he served pro bono as counsel of Wisconsin and of its law school. to the Archdiocese of Chicago. He had served as president of the Illinois Board of Law Examiners and of the National Conference of Bar Examiners. Thomas English McCutchen III (00) a partner A remarried widower, his survivors include his in McCutchen, Blanton, Johnson and Barnett, second wife, a son and a daughter. LLP, Columbia, South Carolina, died February 17, 2008 at age 59 of pancreatic cancer. A gradu- L

THE BULLETIN w 47 Edmund Peter Newcombe, Q.C. (75), a lifelong Johnson & Deluca, LLP, died July 27, 2007. Born partner in Gowling LaFleur Henderson, Ottawa, in 1930, he was a graduate of Fordham and of its Ontario, died January 31, 2008 at age 83. Educated law school. at Ashbury College and McGill University, he served in the Canadian Armed Forces in World War John E. S. Scott (81), Detroit, Michigan, has died. II. A past Ontario Province Chair in the College, A graduate of Albion College and of the Wayne he was actively engaged in many community and State Law school, where he was a member of the charitable organizations. Past President David Scott law review and Order of the Coif, he practiced described him as “an absolutely perfect gentleman with Dickinson Wright PLLC. He had received the whose professionalism placed him high above his second annual Excellence of Defense Award from peers at the Bar.” His survivors include his wife, the Michigan Defense Trial Council, whose presi- two sons, a daughter and a sister. dent he had once been. He had chaired the Legal Aid and Defender Association of Detroit and the Tally D. Riddell (70), a Fellow Emeritus from Michigan Appellate Public Defender Commission Quitman, Mississippi, died January 15, 2008 at age and was a life member of the Sixth Circuit Judicial 95. A graduate of the University of Mississippi Conference and a member of the CPR Panel of and of the George Washington University Law Distinguished Neutrals. School, he was a veteran of World War II. He had served as a state senator, as chairman of the State Richard Nelson Solman (75), a Fellow Emeritus Educational Finance Commission, as a trustee of from Caribou, Maine, died November 14, 2007 at Institutions of Higher Learning of the State of Mis- age 74 from complications arising from cancer. A sissippi, as president of the Mississippi Economic graduate of a combined degree program at Boston Council and president of the Mississippi State University, he was admitted to the bars of Mas- Bar Association. A past president of the Ole Miss sachusetts and Maine at age 22. An Army veteran, Alumni Association, he had been inducted into the he practiced with the firm of Solman & Hunter PA. Ole Miss Hall of Fame. His survivors include his A licensed pilot, he had been president of this local wife, a daughter, a son and two sisters. bar and of the Maine Trial Lawyers Association and a Fellow of the International Academy of Trial William C. Robinson (75), Butler, Pennsylvania, Lawyers. His survivors include his wife, two sons, retired from Henninger & Robinson, died August a daughter a brother, a sister and two step-children. 35, 2007 of pulmonary fibrosis at age 87. A graduate of Wesleyan, he had served as a meteorologist Don V. Souter (72), a Fellow Emeritus from Bel- in World War II before earning his law degree from mont, Michigan, died November 5, 2007 at age the University of Pennsylvania. His survivors 84. Attending Grand Rapids Junior College and include four daughters, a son and a sister. the Naval V-12 program at Marquette, he served aboard a minesweeper in World War II. A Michi- George Hardy Rowley (75), a Fellow Emeritus gan Law School graduate, he practiced with the from Tennille, Georgia, died in October 2006. A Grand Rapids firm Chollette, Perkins & Buchanan. deck officer in the U. S. Navy in World War II, he A civic activist, he was known as a dedicated “anti- was a graduate of Yale and of the Harvard Law billboard fanatic,” a writer of letters to the editor School. Before his retirement he had practiced law and a grass-roots political activist. His skiing cain Greenville, Pennsylvania. reer, in later years with the 70+ Club, was cut short by a skiing accident when he was 82 years old. His survivors include his wife, a son and a daughter. W. Patrick Ryan (81), a Fellow Emeritus from Stamford, Connecticut, retired from Ryan, Ryan, Richard F. Stevens (81), Allentown, Pennsylvania,

48 w THE BULLETIN a member of Stevens & Johnson, died July 22, of ABOTA. His survivors include his wife and two 2007. Born in 1931, he was a graduate of Muhlen- daughters. berg College and of the University of Pennsylvania Law School. J. Clayton Undercofler 3d(89), a Fellow Emeritus from Phoenixville, Pennsylvania, retired from the Charles Sumner Tindall, Jr. (71), a Fellow Philadelphia firm Saul Ewing, where he had once Emeritus from Greenville, Mississippi, of counsel served as managing partner and chair, died Novem- to Lake, Tindall LLP, died January 5, 2008, six days ber 14, 2007 at age 66 of cardiac arrest. A graduate short of the 96th birthday. An honors graduate of of Villanova Law School, he began his career in the the University of Mississippi and of its law school, U.S. Attorney’s office, then went into private prac- he was editor of his law journal. A lifelong scholar, tice. He chaired the board of the local public trans- he had earned a masters degree from Yale Law portation authority for five years and had served on School and had been an assistant professor at the numerous other civic boards. His survivors include law school at Mississippi. He had served in World his wife and two sons. War II as a captain in the Air Force JAG Corps and had been a member of many civic and business Hon. William H. Welch (84), a Fellow Emeritus boards. His survivors include his wife, two sons and from Florence, Massachusetts and a retired Mas- a brother. sachusetts Superior Court Judge, died October 4, 2007. He was a graduate of Holy Cross and of John Graham Tucker (54), a Fellow Emeritus Harvard Law School. from Beaumont, Texas, retired from Orgain, Bell & Tucker, LLP, died January 14, 2008 at age 100. Hon. Warren D. Welliver (68), a Judicial Fel- A graduate of Lafayette and of the Harvard Law low from Columbia, Missouri, retired Missouri School, he practiced law for over 60 years, always Supreme Court Judge, died October 29 at age 87. wearing his signature bow tie, and was recently A graduate of the University of Missouri and of its honored by the Beaumont Foundation of America law school, he had served on the Supreme Court as a “Southeast Texas Legend.” A widower, his for twenty years. A state senator before ascending survivors include three daughters. to the bench, he had served as president of the Mis- souri Bar Association and on many civic and gov- Hurshal C. Tummelson (70), a Fellow Emeritus ernmental boards and was the recipient of numerous from Urbana, Illinois, retired from Tummelson, honors, including a Distinguished Alumni Award Bryan & Knox, of which he was a founding partner, from his law school. His survivors include his wife died January 11, 2008 at age 84. A graduate of the and two daughters. University of Illinois Law School, he was a World War II veteran, a navigator who flew combat mis- Hon. George E. Woods (73), a Judicial Fellow sions with the 8th Air Force in the European The- and a retired judge of the United States Court for ater. His survivors include his wife, three daughters the Eastern District of Michigan, died October and a sister. 9, 2007 at age 83. A graduate of Ohio Northern University and the Detroit College of Law, he had Neil Edward Ugrin (93), Great Falls, Montana, served as a criminal investigator in the U.S. Army of Ugrin, Alexander, Zadick & Higgins, PC, died in the Pacific Theater in World War II. He had on Christmas Eve at age 62 after a long illness. A served as U.S. Attorney for the Eastern District of graduate of Carroll College, where he was student Michigan and as a Bankruptcy Judge before taking body president, and of the University of Montana the District Court bench. His survivors include his Law School, he had been the College’s Montana wife and three daughters. State Chair and president of the Montana chapter

THE BULLETIN w 49 stu de nt wi n n e r s honor e din de nve r

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 Denver, along with the Best Oral Advocates in each contest.

Dustin Buehler, Candice Tewell and Aaron G. Thomson of the University of Washington School of Law in Seattle won the National Moot Court Competition. Natalie Roetzel of Texas Wesleyan University School of Law in Fort Worth was the Best Oral Advocate.

Donna Polgar and Karen McCaig of York University Osgood Hall Law School in Toronto made up the winning team in the Sopinka Cup. Polgar was the Best Oral Advocate.

Keya Rajput and Joshua Jones of Chicago-Kent College of Law were members of the winning team in the National Trial Competition. Rajput was the Best Oral Advocate and as such the recipient of the George A. Spiegelberg Award.

Gale Cup team winners were Geoff Grove, William Hutcheson, Jason Reynar and Christopher Tucker of York University Osgood Hall Law School. Reynar was the Best Oral Advocate.

I report to four sole practitioners in criminal law. I am their articling student. One of these men . . . is a Fellow of this College. On his way out of the office yesterday, he kindly stopped at my door to wish me luck, and he said, “Don’t worry, Donna. Just because you’re going to be addressing hundreds of the most accomplished, prestigious, brilliant and talented trial lawyers in North America, you don’t have anything to worry about. When you’re standing up there and they’re all looking at you and listening to you and assessing whether or not you’re really worthy of this great honor that you’re getting, you shouldn’t be nervous at all. I’ll see you when you get back. Good luck.” And with a smirk and a wave, he was gone.

Donna Polgar, winner of the Best Overall Oralist bon mots Award in the Sopinka Cup Competition 50 w THE BULLETIN We b I nstructions: How to Personalize Your listing on the college Website

By Scott Bryan then appears on your screen. When you are fin- ACTL Web and Communications Manager ished checking the accuracy of all your entries and adding links, click on “submit.” You will then see The College urges all Fellows to register their contact a window with the message “Information updated information on the College website, so that your pro- successfully.” Click on “OK” and your edited profile will then be accessible to anyone who visits www. file will reappear on the screen. actl.com. You will want your listing to be current and informative, and only you, using your login name and To create a link to a personal website, click on password can edit your profile, including adding links “More info,” and then on “Personal.” You can then to your firm’s website and to your personal profes- fill in your firm’s website or a personal website ad- sional biographical information. (If you are not com- dress by clicking within the appropriate box on the puter literate, you can get someone to help you with screen that appears and entering the web address. the entries.) To add to or update your profile, follow You can also indicate your practice area(s) on this this quick and intuitive process: screen by holding down the “Control” key on your keyboard and left-clicking on as many areas as are Go to www.actl.com, and in the upper rights corner applicable. You can also use this screen to indicate of the webpage, click on “Fellow Login” and enter your preferred mode of receiving communications your login name and password. Once you have from the College. When you have entered the de- logged in, click on “Customize your profile.” On the sired information, click on “update. “ Click “OK” screen that appears you will then see entries labeled: on the window that then appears and your edited “Firm Website,” which provides a link to your firm’s profile will again appear on the screen. website; “Attorney Profile,” which provides a link to whatever profile you may have on a website; and When you have done this, you can view your entire “Practice Area,” which allows you to designate your profile as edited before closing that screen. You area of practice. can then log out.

To supply or update a link to your firm’s website, click If you log onto the College website, click on on the “edit” button at the top of the page and on “Attorney Directory” and insert your name in the the screen that then comes up, fill in or correct your search function, you will see the contact informa- firm’s web address in the space labeled “Firm web- tion that is available to the public, as opposed to the site.” You will note that you can also make additions more expansive private information that is available or corrections to any other entry on that page while to the College from the entries you have made. you have it open. You can check to make certain that the firm website link is properly installed by clicking on the green globe to see that your firm’s website

My husband is great at giving me advice, and yet he missed the mark yesterday. Knowing how nervous I was about having to speak in front of all of you, he suggested that I go to a movie, and the movie he suggested was Michael Clayton. If you haven’t seen the film, it’s about a trial lawyer who has a nervous breakdown and starts taking all his clothes off in a deposition. Needless to say, it did not calm my nerves.

Inductee Leslie Fields, Denver, bon mots responding for her fellow inductees THE BULLETIN w 51 meetthe new regents

Paul T. Fortino

Paul Fortino, a partner at Perkins, Coie of Portland, Oregon, was inducted into the College in 1998 and has served as State Chair of Oregon. He has also served on the College’s Outreach Committee and chaired the Gates Committee. He is a past president of the Federal Bar Association, past president of the Oregon Association of Defense Counsel and a former delegate to the Ninth Circuit Judicial Conference. He recently received a Learned Hand Award. A 1967 graduate of the University of Michigan, Fortino received his J.D. in 1975 from the University of Notre Dame Law School where he graduated summa cum laude and was Notes Editor of Notre Dame Lawyer. He was a labor relations specialist with Ford Motor Company, 1967-68, Chief Trial and Defense Counsel with the U.S. Navy, Thirteenth Naval District, in Seattle, Washington, 1975-78, and executive assistant to the Judge Advocate General, Washington, Paul T. Fortino D.C., 1978-1980.

Phillip R. Garrison

Inducted into the College in 1990, Phillip R. Garrison has served on the Missouri State Committee; the National Trial Competition Committee of which he was chair from 2003 until 2006; the Judiciary Committee; the Teaching Trial & Appellate Advocacy Committee; the Ad Hoc Committee on Committee Structure; the Essay Contest Committee; the Task Force on Cameras In The Courtroom; the task force on Discovery in conjunction with the Institute For The Advancement of the American Legal System; and the Regents Nominating Committee. From January 1993 until September 2007, he served as a Judge of the Missouri Court of Appeals, Southern District, during which time he authored approximately 800 opinions of the court, served as Chief Judge, and Phillip R. Garrison

52 w THE BULLETIN served on the Appellate Reapportionment Commission which drew new boundary lines for the House and Senatorial districts for the State of Missouri. In September 2007, he left the bench to return to private practice with the Kansas City firm of Shugart, Thomson & Kilroy in its Springfield, Missouri office, where he is practicing civil litigation. Garrison graduated from Drury University in 1964 and from the University of Missouri Law School with a J.D. in 1966.

Christy D. Jones

A member of the College since 1997, Christy D. Jones, a partner at Butler, Snow, O’Mara, Stevens and Cannada of Jackson, Mississippi, has served on the Mississippi State Committee for five years and on three general committees of the College—Federal Rules of Evidence, Jury and National Trial Competition. She has been chair of the Mississippi Law Institute and the Drug and Device Committee of the Defense Research Institute. As a member of Merck’s national defense team for Vioxx, she tried a number of the cases that led to the recent global settlement. She completed her undergraduate education at the University of Arkansas in 1974, where she was a member of Phi Beta Kappa. She received her J.D. in 1977 from the University of Arkansas Law School, where she graduated with high honors and was managing editor of the Arkansas Law Review.

Christy D. Jones Paul S. Meyer

Since becoming a Fellow in 1992, Paul S. Meyer of Costa Mesa, California has served as chair of the Admissions to Fellowship Committee, chair of the Southern California State Committee and vice-chair of the Award for Courageous Advocacy Committee. A former senior homicide prosecutor, Meyer has served as Director at Large for the Orange County Bar Association and on the board of directors for the Center of Lawyering and Trial Advocacy of Chapman University. He has lectured for the U.S. Department of Justice, the National Association of Medical Examiners and several other professional organizations. He received his B.A. and J.D. from UCLA where he served as Chief Articles Editor of the Law Review, and was a member of the Order of the Coif.

Paul S. Meyer

THE BULLETIN w 53 national Center for refugee and immigrant children

g u m pe rt awar d goe s to tr ai n lawye r s to r e pr e s e nt r e fug e e and immigrant children

“Some 8,000 immigrant children . . . are incarcerated each year after they come to the United States. They are the victims of abuse and neglect, and yet they have to navigate the most incredibly complex maze of legal problems involving the interaction of state and federal law. What the National Center does, and how it will use our money, is to train pro bono lawyers and legal aid lawyers in the representation of these children as they struggle to deal with a very complex legal system.”

Joseph D. Cheavens, Houston, Texas, Chair of the Emil Gumpert Award Committee thus described the work of the 2007 winner of the Emil Gumpert Award, the Na- tional Center for Refugee and Immigrant Children.

The Center proposes to use the $50,000 cash grant that accompanies the award to create the Emil Gumpert Re- source Center for abused, neglected, and abandoned immigrant children.

In introducing Lavinia Limón, President and CEO of the U.S. Committee for Refugees and Immigrants (USCRI), the parent organization of the National Center, he noted, “She has literally devoted her life and career and consid- erable skills to assisting those immigrants and refugees in need of assistance.”

Lavinia Limón A graduate of the University of California at Berkeley who has spent nearly 35 years working on behalf of immigrant refugees, Limón began working with the resettlement of Vietnamese refugees in the wake of the Vietnam War. Before joining the USCRI in August of 2001, she had served as the Director of the Office of 54 w THE BULLETIN Refugee Resettlement in the violence, hunger, disease, and Carolina, recruited a bilin- Department of Health and other mistreatment. gual counselor and therapist Human Services in the Clin- to work with the girls. Their ton Administration. “They are apprehended at attorney got their case contin- the border and detained in 37 ued, and the girls made slow The mission of USCRI, a pri- detention facilities located na- but steady progress. Eventu- vate nonprofit organization tionwide. Most are released ally, they were able to tell the which has been advocating after a few weeks or months judge about their persecution on behalf of uprooted people, to distant relatives and friends and fear of return and were regardless of their national- and expected to show up at granted asylum.” ity, race, religion, ideology, immigration court. But they or social group since 1911, is have no right to an attorney, “I can guarantee you,” she to protect and serve refugees and so the project works to concluded, “that without and immigrants by defending help find an attorney for an attorney and without the their rights throughout the them.” work of the bilingual coun- world. Domestically, it has re- selor, these children would settled over 250,000 refugees To illustrate the work of the have been sent home. And since 1975, and both directly Center, she told the stories I’m happy to report now that and through 35 partner agen- of two sisters, ages 7 and 11 they’re doing well in school, cies and has served hundreds whose mother had died, who making friends, and thriving of thousands of immigrants had left Guatemala to escape in their new environment.” located across the United a violent alcoholic father and States. These services include violence in their community. A second client she described legal immigration services, They had come north on was an older teenage boy English as a second language, their own, walking, hitchhik- who came to the U.S. from employment assistance, trans- ing rides, begging food from Guatemala. His mother was lation, health programs and strangers, hiding in shadows. murdered when he was three, many other programs of ac- On a small scrap of paper, they and he was orphaned at eight culturation and orientation. had the name and address when his father died in a of a distant relative in North work-related accident. He She described the Children’s Carolina. moved among friends’ and Center as a relatively new pro- family members’ houses but gram for USCRI. “Our project, It took them months to get dropped out of school in the the National Center for Refu- through Mexico and to reach fourth grade. gee and Immigrant Children, the border, where they were works on behalf of 8,000 chil- arrested and put in detention. He was often harassed; gang dren a year who flee to this The North Carolina relative members tried to recruit him. country from Latin America, agreed to take them in, and With no parents to protect Asia, Africa, and other parts their case was referred to the him, he left for the United of the world. Center. States with a cousin and a friend, but during the trip, the “But who are these children? “But when we helped match a two other boys abandoned The small children, the young pro bono attorney, he met with him. He spent six months in children are brought by smug- them, and they were virtually Mexico trying to find a way glers, friends, and strangers. mute. They’d been so trauma- north. Finally, he made it The older children navigate tized by their experience at across the border and was ap- their own way, often victims home and during the journey, prehended and detained and of traffickers. They are fleeing they could not actually speak then sent to Maryland, where family disintegration, domes- a full sentence. So Center tic abuse, societal neglect, gang staff located in Raleigh, North L

THE BULLETIN w 55 gumpert award, con’t from 55 he had a friend. of justice, confirms that even Noting that, “Without the will- these children, abandoned or ingness of attorneys across the The Center staff helped ar- orphaned, illegal or undocu- country to volunteer their ser- range pro bono counsel, and mented — choose your word vices to the Center, we cannot he was granted special immi- — deserve dedicated, compe- do our work at all,” she closed grant juvenile status, a partic- tent and compassionate legal by extending an invitation to ular status that very few attor- representation while their fate members of the College to join neys, including immigration is being decided. and agree to represent a needy attorneys, know about. He is child. The Center’s website is now attending high school. “Under the current political www.refugees.org. climate regarding undocu- After describing the work of mented aliens, we are grate- USCRI, the parent organiza- ful to the American College * * * * * * * * * tion, and the plight of refu- of Trial Lawyers for this ex- gees globally, she concluded: tremely courageous stance. . . The Emil Gumpert Award “USCRI . . . does not believe . We know that many — and Committee seeks applications that you can protect people they state very clearly — many for the award on a continuing without justice, so the cre- in the anti-immigrant groups basis. It looks to Fellows of ation of the Children’s Center believe that if you just treat the College to suggest to it fell naturally within our mis- these people badly enough, and to nominate organiza- sion. Everyone believes that that they will go home. tions which advance the ad- children must be protected, ministration of justice. but their first line of defense “This award bolsters our con- is clearly the exercise of their fidence that we are performing legal rights. For us, receiv- a vitally important service for ing the Emil Gumpert Award, extremely vulnerable children dedicated to maintaining and in a professional manner with improving the administration significant results.”

[T]alking to . . . federal judges, . . . invariably the issue of the sentencing guidelines came up. And it reminds me of a story in which a woman was convicted of stealing a can of peaches. And she appeared before the judge, and the judge says, “How do you plead?” and she says, “I plead guilty, Your Honor.” And he says, “Now, you’ve stolen a can of peaches, and under our sentencing guidelines, I must sentence you to one day in jail for every peach you have stolen. Do you understand that?” She says, “I do, Your Honor.” “Do you still want to plead guilty?” “I do.” “Is there anything you would like to say before I formally pronounce sentence?” She said, “No, Your Honor.” Her husband at that point says, “Your Honor, may I say something?” And the judge said, “Well, that’s a little bit out of the ordinary, but, yes, I’ll let you say something.” “Your Honor, before you sentence my wife, you need to know two things. One is that I was an eyewitness to her crime. And the second thing you need to know is, she also stole a large can of peas.”

bon mots President David J. Beck 56 w THE BULLETIN Awar ds, Honor s and E lection s

The late civil rights lawyer Oliver W. Hill of Richmond, Virginia, has been voted Greatest Virginian of the 20th Century. “Virginians do not bestow such recognition lightly,” Past President Jimmy Morris of Richmond said. “Madison was selected for the 18th Century and John Marshall for the 19th. George Washington was number one over all.” Hill, who received the College’s Courageous Advocacy Award, and who was pictured shaking hands with Queen Elizabeth II on the cover of the Spring 2007 issue of the Bulletin, died August 7, 2007, at the age of 100.

Nancy Gertner, Judge of the U.S. District Court in Boston, Massachusetts, will receive the Thurgood Marshall Award at the Annual American Bar Association Convention on August 9 in New York City. She is the second woman to receive the award. Supreme Court Associate Justice Ruth Bader Ginsburg was the first.

Past President Robert B. Fiske, Jr. of New York, New York, has been selected to receive the 2008 Fordham-Stein Prize. Fiske is perhaps best known for his work as special prosecutor in the Whitewater controversy from January-October 1994. Named after prominent Fordham Law alumnus Louis Stein, the award renders public recognition to the positive contributions of the legal profession to American society. Previous winners of the award have included six members of the United States Supreme Court and three lawyers who have served as Secretary of State.

Sylvia Hardaway Walbolt of Tampa, Florida, the second woman inducted into the College, has received the Tobias Simon Pro Bono Service Award, the highest public honor the Florida Supreme Court confers on a private lawyer.

W. Erwin Spainhour of Concord, North Carolina, has been elected president of the North Carolina Conference of Superior Court Judges.

Walter E. McGowin of Tuskegee, Alabama is the subject of a feature story in the January 2008 issue of The Alabama Lawyer. He is the first African-American to be a member of the American Board of Trial Advocates in Alabama.

The Alabama Defense Lawyers Association has renamed its Young Lawyer’s Trial Academy the ADLA Bibb Allen Memorial Trial Academy in honor of the late Bibb Allen of Birmingham, Alabama. A founder of the ADLA and a past president of the organization, Allen died on March 17, 2007.

THE BULLETIN w 57 ch i e f ci rcu it j udge extols Value of colleg e s ponsored legal exchanges

The College has periodically devoted some of its resources to sponsoring legal exchanges, principally among the common law countries from which its members come. These exchanges have principally involved justices, judges and lawyers (most, if not all, Fellows) from the United States, Canada and Great Britain. By their very nature, the number of participants in these exchanges is limited. In order to accommodate free exchange of ideas among members of the highest courts of the participating countries, few of the papers prepared in connection with the exchanges are published. Tenth Circuit Chief Judge Deanell Reece Tacha has been a member of the United States delegations in two Anglo-American Exchanges, 1999-2000 and 2004-05, and the most recent Canada-United States Exchange. We thought it useful and informative to make available to the entire membership an edited version of her address, delivered at the College’s 2007 annual meeting in Denver.

I am here to thank you for the great service that you do to the legal profession. You are the hosts for a powerful professional exchange. Quite simply, you are the only entity . . . who could host this invaluable exchange.

The Exchange is, of course, a series of very important col- laborations with colleagues from the rest of the world, and most notably recently for me, from Canada and the United Kingdom. It is very important. It creates lasting friendships and communication links.

The College has made this possible. On the surface, it might just appear to be trips and exchanges in the most superficial sense of the word: lovely locations, extraordinary hospital- ity, and very hand-picked company. But, in fact, it is the most thought-provoking, insightful, and challenging, substantive set of discussions I have ever been involved with Deanell Reece Tacha anywhere.

I am convinced that these exchanges in a very real way set a tone and course for the legal profession and the law in each of the countries involved. . . .

58 w THE BULLETIN Since 1999, I have participated this time and for the future. it’s how they participate. They fully in six week-long exchang- participate in every session. es, so . . . in a very real and per- It is a sad fact of our lives these They are deeply engaged in sonal way, I owe the American days that because of conflicts the discussions, and they are College a great big “thank you.” and the need to ensure trans- part of the full dialogue. It My life as a federal judge has parency and public account- would not be such a success been enhanced and enriched ability, it is very, very difficult without the leadership of the by those exchanges. to find venues where judges American College, and I have and lawyers can talk together to give credit to the leaders of But my gratitude is much, openly, freely, candidly about the Exchanges that I was on: much more extensive than my their concerns, the concerns Ozzie Ayscue, Michael Cooper, personal experience and enrich- that affect the fabric of the legal David Scott, but all the repre- ment. Instead, my involvement profession, and even, if I may sentatives, the Chilton Varners in these exchanges compels me be so bold, the very future of of the American College, have to thank you on behalf of the the Rule of Law in our nation been full and active partici- entire federal judiciary and and throughout the world. pants. And I would be remiss those members of the state judi- indeed if I didn’t give credit ciary who have participated. . . Why do they work? Well, some to Dennis Maggi and his staff, . You have used the privileges reasons are tangible and some who do such a prime job. of your high professional call- are quite intangible. One tangi- ing to serve the greater good of ble one is, as you have already The format is inspiring. There the legal community by con- heard, the full engagement of are no outside speakers, no vening exchanges that make the very highest-placed judges talking heads . . . . There are a substantive difference in the in the country’s involved. On very brief papers presented, practice of law, the courts, and the exchanges in which I have and even drafted, by the par- society at large. participated, I, with all due ticipants themselves. What respect to the other justices, . . makes it work is the wealth of The exchanges are a lasting . think Justice O’Connor is the experience and intellect that legacy to the legal profession spiritual head of the exchang- sit down at the table for a full in this country and those coun- es, and certainly the impetus week and contribute to the tries with whom we exchange. for many of them. She was high level of the discussions It is, quite simply, much, much on the most recent Canadian- and the remarkable blend of more than week-long occasion- American Legal Exchange, but theoretical and policy concerns al trips, for those trips are the I have also traveled with Jus- with pragmatic application by catalyst for profound, in-depth tices Kennedy, Thomas, Breyer, those who apply it. examination of topics that then, Scalia, and, most recently, our I am convinced, become the new Chief Justice, Chief Justice Now, at a group like this, agenda for the legal profession John Roberts. there are simply no shrinking in the United States, the United violets. Everyone participates. Kingdom, and Canada for And in the case of the Ang- It’s sort of my “let it rip” con- years to come. What is unique? lo-American Exchange, Lord cept. Everyone is in there with Well, many international judi- Bingham, Lord Woolf, Lord very different views, candidly cial and law-related exchanges Phillips of Matravers, . . . to expressing them, thoughtfully occur around the world, but I name a very few. And in Can- interacting, modeling collegi- am not aware of any that throw ada most recently, the really ality and modeling what it is together the leadership of the spectacular Chief Justice of to be a professional. Even the judiciary with some of the fin- Canada, Chief Justice Beverley presence of a lot of Supreme est lawyers in each country’s McLachlin, several members of Court justices seems to have trial bar to address the most their Supreme Court. no chilling effect at all on those pressing issues relating to the law and the legal system for But it’s not just who they are, L

THE BULLETIN w 59 Tacha, con’t from 59 robust discussions. Now, it’s do that. The mere litany of the we had had a lot of experience very hard to find a group like topics covered illustrates how with models of judicial selec- that. the exchanges are agenda-set- tion and appointment, so we ting. I will give you only a few. exchanged on some of those. There are, of course, the intangible factors of dining and In 1999, the attention of the But to fast-forward to the living together for a week, and American legal profession was more recent exchanges, Jus- watching the two Chief Justices focused on proposals for rules tice O’Connor’s words about sing in a sing-along, and trying governing multi-disciplinary the attacks on the judiciary, to see our Chief Justice keep up practice. Remember that? Our particularly in this country, re- with Sharon Tremblay in the English colleagues, of course, sound in the United Kingdom French Canadian songs. . . . have had many years of expe- and in Canada. And the role of rience with multi-disciplinary the American College in being But that is not the important practice. I remember so clearly what David Scott describes as part. The important part is the looking around that discussion a watchdog and a responder agenda. As I have said, I be- table and seeing the skepticism — a first responder to those lieve they are agenda-setting. on the faces of my American criticisms — is so important, Here is where I implore you to colleagues. Well, events in the and never, never more needed make certain, and you can do United States overtook us, but than now. . . . it along with all of us in the ju- I think that I saw that skepti- diciary, make certain that these cism reflected out from that Ex- You who are the leaders of the week-long discussions prolifer- change throughout the whole bar can help. It’s not really ate throughout our profession. American legal profession in about the judges. It is about They should become calls to the events that occurred. And educating the public about action for addressing issues as you know, those Model why an independent judiciary that demand our attention if Rules were defeated, and we is a cornerstone of the Rule of we are to preserve and build a are still prohibited from multi- Law, one of the central, central professional culture that main- disciplinary practice. components of a free society. tains the values we treasure, That’s been on the table at each while also adapting to the chal- Also think about 1999. Tech- exchange. lenges of our time. That is the nology had just exploded on real exchange. It is the larger us, and the courts were cer- Now, in 1999, in a sort of ironic conversation on topics that call tainly not ready in any of our twist of history, we sat in this out—in fact, scream—for the countries. So we began a topic beautiful conference room at attention of lawyers and judges that has continued through [the Inner Temple], and I shall alike, concerns shared equally 2007 of what effect technology never forget the sense that by our colleagues in the United is going to have on the courts. maybe I was going back 200 Kingdom and in Canada. How are we going to, how will years, because we were having we adapt our discovery? How a discussion about devolution The agenda or the list of top- will we adapt our filings, filing of power to states, because the ics that the American College briefs, all other things that go United Kingdom was devolv- brings to the table in these ex- with technology in the courts? ing Scotland and Wales. . . . changes is a template for this Two hundred-plus years later, call to action for the bench and Then, as now, an independent they’re having to learn how to the bar for years to come. judiciary . . . is on the top shelf deal with federalism. But here . . . . At that time in 1999 and in our country, remember those So what is that agenda? Well, still in 2004, the United King- years around 1999? Federalism I’m going to give you a very dom was looking at new ways was certainly on the top shelf of quick litany. I wish I could to select judges and appoint the agenda of the United States elaborate on each of these top- them, and a brand-new role Supreme Court. ics, but . . . I promise I won’t for the Lord Chancellor. Well,

60 w THE BULLETIN Jury trials, jury selection. . . . I want to give you a picture Think about it. Can you define [I]t’s been on the table. Con- of one day in that exchange. for yourself the absolute neces- trol of professional and judicial Picture, if you will, standing sities of the Rule of Law? We conduct, changes in the nature on the shore at Jamestown, need to each be able to do that. of the market for legal services. watching a replica of the God- We were given the chance to That was 1999 and 2000. speed go by on the 400th an- hear from Aboriginal and Na- niversary of Jamestown that tive American folks about their 9/11 occurred. The next ex- Justice O’Connor so brilliantly view about that, and from a change was a very sobering chaired. And watching the prisoner of war about his view one, the 2004 one . . . , and the Lord Chief Justice of the Unit- of that. topics changed. The topics ed Kingdom, the Chief Justice changed to very much more of the United States, and the We’re still talking about tech- attention to international tri- Chief Justice of Canada, Justice nology, and I can tell you that bunals, international crime, O’Connor, Justice Breyer, the top on the list of subjects that terrorism and, in this most re- Treasurers of the four English deal with technology is the cent exchange, how to balance Inns, 300-plus representatives whole question of E-discovery. civil liberties, the protection of of the American Inns of Court, And, frankly, everybody’s wor- civil liberties with our security and wonderful lawyers and ried about discovery, and that’s concerns. judges from all those common on the table big-time right now, law countries gathered on the because the judges around the I remember sitting down at shore at Jamestown to celebrate country are saying, “There’s the 2004 Exchange with our the Rule of Law. way more discovery than there colleagues from the United needs to be: it’s escalating the Kingdom and realizing the My friends, I’ve never had a costs of litigation; we’ve got to enormous strength of the tra- higher professional moment, do something about it, and E- dition of the common law and nor have I been inspired to go discovery may make it worse the freedoms to which we have on with these themes and to instead of better.” Only those of become so accustomed and we talk about them everywhere I you who are leaders of the bar take so for granted. Because can. That was the spring side can help us think this through. 9/11 not only terrified us, it of the Canadian-American What is libel? What is slander? made us not take it all so for Exchange, where we focused What is defamation? What do granted. And sitting there with on what does the Rule of Law we do out there on the web? our colleagues from across the really mean? For it’s become a Atlantic drove it home, a very mantra around the world, that Certainly the question of reli- important common law tie and we who live it need to give it ance on the law of other na- bond that we can not take for articulable definition. W e need tions in contrast to domestic granted. to understand both profes- law is still an issue on the table, sionally and emotionally what and the United States Supreme We also in that Exchange talked the cornerstones are, what we Court is considering that issue about the Woolf Report. And need to be advocating, what it as we speak. Independence you all know that in the United is we mean when we talk to the of the judiciary, civil liberties Kingdom, Lord Woolf was the world about the Rule of Law. in a time of security, all on the leader of a lot of changes in table. discovery and use of experts in Justice O’Connor is, of course, the United Kingdom. We were the world’s best spokesperson This time, we had a fascinating trying to learn to live with for that, because it means dif- discussion of wrongful convic- Daubert. . . . ferent things to Aboriginal peo- tions, innocence projects . . . . ples; it means different things There is a lot of worry about And now, the 2007 Canadian to prisoners of war; it means how we deal with what we’re Exchange . . . I will very briefly different things to immigrants. talk about the topics there, but L

THE BULLETIN w 61 Tacha, con’t from 61 learning in biotechnology, concerned, deprived young community, because you know DNA, and all of the issues re- lawyers of the opportunity to the statistics; the lawyers are lated to medical evidence. So, be working, functioning parts no longer there very much. lots of concerns on the table. of their communities, to be parts of their families, to be We need to examine this pro- The availability and access of involved in public service, to fession, because we will make justice, and we’re not just talk- have the passions that we came it what it will be in the future. ing about for the poor. The to this profession to be part of. concern is that the courts are You, the members of the Amer- not as available as they once I ask you each to go back . . . to ican College of Trial Lawyers, were for much, much different when we all went to law school. are in . . . I think, the single best people. Middle America and Go back and ask yourself, “Why place to help start reinfusing the middle-income folks of all was it I went to law school?” I into the lawyers and the judges these countries are struggling know what your answers are. in this nation, and more partic- with access to justice ques- Of course we wanted to make ularly those who might aspire tions. And at this Exchange, we a decent living. For some of us, to be part of this profession, a talked a lot about providing as- it’s not very decent anymore, sense of, “We can make a dif- sistance for self-representation: but that wasn’t why we went ference. We are those people what are the appropriate rules to law school. We went to law who inherited those abilities for lawyers in self-representa- school to make a difference. We to do civilized debate, to solve tion courts, and also, of course, went to law school because we our controversies in a civilized the role that we must play, not thought we would be guard- and humane way, to be parts of only for middle-income folks, ians of the Republic, because our community.” but for the continuing need for we had inherited this great those . . . who simply can’t get legacy of a free society where The real Exchange is to take their own representation. we have an independent bench these wonderful moments that and bar, because we were fol- you host and take them on Now, I have saved the last top- lowing in the tradition of those the highways and byways of ic that we talked about . . . on great lawyers who founded this the United States and Canada this last Exchange for my final Republic. That’s why we went and the United Kingdom and topic, and it was reserved for to law school. We thought we say to the world that, from the the final topic at the Canadian- could help people. We thought Magna Carta on, we have been American Exchange, because in we would be parts of our com- the guardians of a profession my view, this may be the most munity. We thought we would that will make a difference serious issue right now on the be respected. That’s why we and leave a legacy for another tables of lawyers and judges. went to law school. many generations, my two new It is: “Who will be the lawyers grandbabies, leave a legacy of and judges of the future? Are If we are to leave a legacy for a free people with an indepen- young lawyers infused with another generation, no, not just dent bench and bar. If not you, the passions that we came to of our profession, but of a free who will do it? this profession with? Do they people, we need to bring back like being lawyers? Will they to the people in this profes- So I view you as . . . going be- be willing to sacrifice enough sion a sense of that passion, a yond your great privilege and to be judges?” sense of that commitment to delivering an Exchange that the greater good, a sense of be- will make a difference for the There is great unease out there ing part of their communities, future. in the profession, because the serving in universities and 4Hs model of billable hours that and Boy Scouts and Girl Scouts Thank you. has become the model for most and immigrant relief societ- of the legal profession in the ies. Whatever it is, serving on countries involved has, we are school boards, being part of the

62 w THE BULLETIN bon mots I was a rookie, dazzled and more than a little intimidated by the prospect of debating “the law” with Supreme Court Justices, Law Lords, and Chief Justices. They don’t send you any kind of manual telling you what’s permissible and what’s not at an Anglo American Exchange. But Judge Tacha, with her characteristic amiability and great courtesy, took me under her wing and showed me the ropes. First, she showed me the path to the ladies’ room in the Inner Temple, which is somewhat of a secret. Second, she advised me on the level of deference that I should afford Justices Scalia and Breyer. Her view: “Just enough, and then let it rip.”

Regent Chilton Davis Varner, introducing her fellow Anglo-American Exchange delegate, Chief Judge Deanell Reece Tacha

I had a very proper English grandmother, and almost as soon as I knew my ABCs, she had me writing “thank you” letters, thanks to everyone who had ever done anything for me. And I remember in particular one Valentine’s Day, which fell on a Sunday. Now, my grandparents lived several hundred miles away from me, but on that Sunday, the local postman in my little town of 300 people in Kansas came to my door and delivered the Valentines from my grandparents. Well, they had arrived on Sunday and the post office wasn’t open, and there was my postman. So I called my grandmother to thank her and to tell her, you know, how much I appreciated the Valentines that day. And, of course, her first words were, “Write a thank you letter to the postman.” I said, “Grandma, he’s “ just doing his job.” Well, my grandmother’s retort has remained a watchword ” for me since that day. She said, “No, Deanell, that is not his job. His job is to put the mail in the mailboxes during the week, and that is it. Instead, your mailman understands that he can use the privileges of his job to serve the people of the community far, far beyond the requirements of his job. Well, today,” my grandma said, “that service is making you and me happy by delivering your Valentine. You write him a thank-you letter.”

Today I have a great opportunity, and it is to deliver in person a “thank you” letter to the American College of Trial Lawyers. I am here to thank you for the great service that you do to the legal profession. You are the hosts for a powerful professional Exchange. Quite simply, you are the only entity — the only entity — who could host this invaluable Exchange. . . . I view you as my postman, going beyond your great privilege and delivering an Exchange that will make a difference for the future. Thank you.

Tenth Circuit Chief Judge Deanelle Reece Tacha

THE BULLETIN w 63 PRSRT STANDARD T h e B u 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

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 prosecute 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. 6 “In this select circle, we find 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

64 w THE BULLETIN