Summer Edition 2020 Vol. 29, No. 4 MESSAGE FROM THE PRESIDENT BY: HON.

“There are moments which mark your life. Moments when you realize nothing will ever be the same and time is divided into two parts, before this, and after this.” N. Kazan

The death of George Floyd on May 25, 2020 is one of those moments—eight minutes and 46 seconds, to be exact. The video of a police officer sworn to protect and serve, with his knee on Floyd’s neck as he gasped, “I can’t breathe,” changed how millions of people around the world view America and snatched the wool from over the eyes of others who before that moment, refused to acknowledge the systemic problems embedded in the fabric of our nation and the indifference endured by so many.

Eight minutes and 46 seconds…and the world has taken a knee, to denounce the absence of humanity and to demand an end to unjust policies and practices. Not since Mamie Till-Mobley decided to have an open casket funeral so that all the world could see what racist murderers had done to her 14-year-old son, Emmett Till, accused of flirting with a white woman,1 have we had a visual so strong that it forces us to confront the evil and ugliness enabled by our im- perfect society.

Those eight minutes and 46 seconds which ended in Floyd’s life being snuffed out before our very eyes illustrated an absence of humanity created by years of suppression and oppression that African Americans confront daily. The perceived right and privilege of some to so dominate and subjugate others, such that they dare to kill in the open and despite pleas for help by onlookers. The death of George Floyd was a moment in time that has changed us forever as a nation. That moment has evolved into a movement uniting Americans to say enough is enough and demand reform. As sad and depraved as that moment was, it ignited a spirit that united the country in purpose around a common truth that spilled into the streets creating a level of civil unrest not seen or heard in decades.

We can now hear the truth about Colin Kaepernick’s decision to kneel—not as an insult but as a plea. As confederate monuments are torn down,2 streets renamed and state flags redesigned, we as a country are ready for the truth. The Confederacy lost the civil war. Slavery ended. Separate is not equal. You are free to live your life unafraid to be who cont’d on page 2

1 While visiting family in Money, Mississippi, Emmett Till, from Chicago, was kidnapped, tortured and murdered for allegedly flirting with a white woman. The woman’s husband and his half-brother kidnapped Till four days later and made Till carry a 75-pound cotton gin fan to the bank of the Tallahatchie River and ordered him to take off his clothes. They then beat the child nearly to death, gouged out his eyes and then threw his body, tied to the cotton fan with barbed wire, into the river. 2 This is not the first time in our country’s history that monuments have been taken down. See https://www.nationalgeographic.com/history/2020/07/pulling-down-statues-tradition-dates-back-united-states-independence/ (last visited July 3, 2020).

Editorial Board: Larry Centola, Colin Cambre, Scott Sternberg, Laura Cannon MESSAGE FROM THE PRESIDENT (cont'd) you are. You can love who you choose and not lose your life or your job over it. These are fundamental principles of our democracy laid out plain and clear in the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

This is a promise our founding fathers made.

The death of George Floyd is not the only difficult moment of my presidency. However, it is the one that has affected me the most. I am proud to know the National FBA and YLD immediately put out statements condemning unjust treatment and unfair policy and laying out specifics the organization will do to be an agent of change. During my tenure as President, I have made friendships and developed great respect for the organization and how it operates. Our leadership is fierce, brave, and uncompromising in its commitment to fairness, equality, justice, and respect for the rule of law. It has been one of my greatest honors to serve as President of this organization. And in this moment, I am better having had the opportunity to serve.

WELCOME TO THE NEW PRACTICE OF LAW By Scott Sternberg, Sternberg, Naccari & White, LLC While most lawyers have adapted well from mail, to internal phone conferences by video. We e-mail all our telex, fax and e-mail, the reality is that starting right now, bills. I haven’t mailed out a hard copy engagement letter your law practice will never be the same again. in years—we e-sign every one. By and large, the law is exactly the kind of profession But that doesn’t mean that technology is the answer to all that can be worked remotely. Research, writing, review of our questions. Or the only way to practice law, now. of documents. While Courts remain on skeleton crew There are some things that can’t be replaced, as we’ve all and are slow to reopen, we should all thank our lucky learned, like human interaction. There’s something about stars that we have advanced enough as a profession to sitting down at a table with a client to settle or close, work from home in the first place. Other professions are and something about hearing an answer to a deposition not quite as lucky. question in person. But just as doctors have been thrust into telemedicine, By example, I recently argued an appellate matter by what the novel coronavirus, or COVID-19, obliged of Zoom. I would generously grade my performance in the legal profession was not a requirement that we work that argument as a minor catastrophe. The inability, by harder, but that we work “smarter.” The word “smart” in videoconference, to read the judges, and the tone and front of any word (like “smart home” or “smart phone”) inflection of both the argument and questions to and from implies that the technology in it is, well, “smart.” opposing counsel, was seriously affected by Zoom. Plus, who knows if your Internet connection will be stable Your smart home started with Alexa or Google Assistant throughout the argument given the number of people telling you about the weather or that your packages streaming or having their own video hearings. would be delivered. Your smart practice starts now— whether we like it or not. All this to say, as a of mentor of mine might have predicated, that the tech is great, and by all means let’s For years, lawyers have championed the benefits of save people time and money. But there’s no substitute technology, and even artificial intelligence, in the for reading the room. I have no intention of trying cases improvement of everything from client service, to legal by Zoom. And I can’t wait to shake hands again. Good research, and to work-life balance. I’m pro-technology hunting. and we have a tech-forward practice at my firm – I’ve drank as much Kool-Aide as a lawyer can. I have all my Federal Practice CLE Series 2020

Join the Chapter of the FBA for lunchtime CLEs this August. Federal judges and seasoned practitioners will explore the latest developments affecting your federal practice. Four, one hour CLEs will be offered on Zoom. Advance registration is required. The Art of Persuasion – Openings and Closings August 6th at noon with the Hon. Ivan L. R. Lemelle &Timothy Daniels Examination and Cross Examination of Experts at Trial August 13th at noon with the Hon. Jane Triche Milazzo & Celeste Coco-Ewing Building your Case through Lay Witness Testimony August 20th at noon with the Hon. & Stephen Herman Pre-Trial and Trial Motions – Winning your Case before it Begins August 25th at noon with the Hon. Wendy B. Vitter &Thomas Flanagan

Name: ______Firm/Organization: ______Telephone:______Email: ______

Member Government/ Non-Member Public Interest

___ Federal Practice CLE Series $105 Free $100 $175 (All four programs - four hours of CLE) ___ The Art of Persuasion – Openings and Closings $35 Free $25 $50 8/6/2020 ___ Examination and Cross Examination of Experts at $35 Free $25 $50 Trial 8/13/2020 ___ Building your Case through Lay Witness Testimony $35 Free $25 $50 8/20/2020 ___ Pre-Trial and Trial Motions – Winning Your Case $35 Free $25 $50 Before it Begins 8/25/2020

Please register online, email [email protected], or mail payment to: Federal Bar Association, New Orleans Chapter, 500 Poydras Street, Room B-245, New Orleans, LA 70130. All cancellations must be received in writing one day prior to the program. No shows will be charged.

3 CORONAVIRUS, CONTRACTS, AND FORCE MAJEURE: WHAT EVERY LAWYER NEEDS TO KNOW Micah C. Zeno, Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC A version of this article was previously published on gamb.com.

What is force majeure and how is it different from an force majeure events will either be restricted (finite) act of God? or unrestricted and include a catch-all or broadening statement, such as “without limitation,” “but not The term force majeure is French for “a superior limited to,” “other events,” and “other similar events.” force.” A force majeure clause is a provision in a contract “Other acts of God” is a broadening statement often that allocates the risk of loss if performance by a party to used to expand a list of force majeure events to include the contract becomes impossible as a result of an event natural occurrences not specifically listed. The use of a that the parties did not anticipate or an event otherwise restricted list or an unrestricted list incorporating catch- specified in the clause. Forces majeures include natural all language may have a significant impact on litigation events like earthquakes, epidemics, fires, floods, between the parties. If the parties use a restricted list, a hurricanes, severe weather events, and other natural court may limit the parties’ exercise of the clause to only disasters and catastrophes. Forces majeures also include the delineated events, despite the fact that the actual event man-made occurrences like civil unrest, organized labor also made performance impossible. Similarly, a court activities, quarantines, terrorism, wars, changes in laws, interpreting an unrestricted list with a catch-all phrase embargoes, and other government actions and inaction (to including “other similar events” may allow the parties to the extent the government is not a party to the contract). deviate from their list only to the extent the actual event The parties to a contract may also stipulate occurrences is comparable or related to a delineated event. that constitute a force majeure, such as the availability of raw materials or services from a third party. Third, a force majeure clause will outline what steps the impacted party must take to exercise the clause, and Force majeure clauses are often erroneously referred what remedies are available to the parties as a result of to as “act of God” clauses, which is only one type of the force majeure. Generally, the impacted party will be force majeure. required to provide written notice of its intent to exercise the clause. The notice will most likely be required within Unless otherwise specified by contract, the force a certain amount of time of the force majeure event, and majeure event must make performance impossible, not not based on the time the impacted party was to perform. merely impracticable or more burdensome (sometimes In order to timely exercise a force majeure clause, an referred to as “commercial impracticability”). impacted party must carefully scrutinize which force majeure it will identify as the precipitating event. Often What are common features of a force majeure clause overlooked by impacted parties are subsequent force and how does a party exercise a force majeure clause? majeure events caused by an initial, more obvious force There are three fundamental components of a force majeure; for example, a natural disaster that prompts majeure clause. First, a force majeure clause will identify government action to which an organized labor event which party or parties to the contract may exercise the (strike) or civil unrest occurs. clause. The party exercising the force majeure clause is Remedies available to the parties may include referred to as the impacted party because it is the party delayed or partial performance; proration or suspension whose performance was rendered impossible by the of payments; extension of the contract term, particularly force majeure. In most instances, the party providing beyond cessation of the force majeure; and termination the good or service at issue will be the impacted party. In of the contract without liability if the force majeure other bilateral contracts either party may likely exercise continues for a predetermined amount of time or beyond the force majeure clause; for instance, a contract wherein the time that performance would have been valuable. one party becomes the exclusive service provider for another, but for an agreed upon quantity. Other, less common features of force majeure clauses include exclusion of occurrences as force majeure events; Second, a force majeure clause will include a defined list of events that constitute force majeure. The list of cont’d on page 5 CORONAVIRUS, CONTRACTS, AND FORCE MAJEURE: WHAT EVERY LAWYER NEEDS TO KNOW (cont'd) stipulations on who may determine a force majeure (for notion that the school closure had resulted from example, the impacted party or an independent third an act of God. “Where the contract is to do acts party, especially for events requiring technical or special which can be performed, nothing but the act of expertise); insurance requirements; alternative dispute God… as a direct and sole cause of the failure resolution agreements; and choice of law provisions. will excuse the performance. This principle is elementary. The schools were not closed for any If a contract does not include a force majeure clause, such cause by the board of education. While the then are there other alternatives that may excuse a closing of the schools may have been wise and party’s nonperformance? prudent, the closing was not due to any cause which made it impossible for the school to keep When a contract does not include a force majeure open.” clause, a party may still be excused from nonperformance under the common law application of force majeure, While closing the school did not constitute a breach of including the Restatement of Contracts; provisions of the the contract by the board, the Court concluded that “nor Uniform Commercial Code; or by asserting frustration of was the obligation of the board of education changed in purpose. Certain industry-standard documents may also the least.” The Court made this determination despite a include provisions for excusing a party’s performance, clause in the teacher’s contract limiting her salary to only particularly in industries prone to performance delays. “for the time actually occupied in school.” Rejecting the board’s interpretation of this clause, the Court observed Have courts previously decided force majeure that “Such a construction… [would] permit the board cases based upon an epidemic or a viral or disease of education to close the schools as often and for as outbreak? long periods of time as they might choose to do so, during the life of the contract, without the consent of The Coronavirus/COVID-19 pandemic is not legally the plaintiff, and without compensating her for the loss unprecedented. Courts have been deciding force majeure of employment, notwithstanding she is bound to serve cases involving viral and disease outbreaks since at least for the whole period…” Interestingly, in dicta the Court 1880. suggested that the teacher might have been excused from the contract if she had contracted smallpox. In Phelps v. School Dist. No. 109, 134 N.E. 193 (Ill. 1922), the plaintiff was a schoolteacher in The Court also indicated that had the board of Wayne County, Illinois. During two months of health possessed the authority to close the school at her contract with the school district, the district the time the contract was made (apparently it did not), closed the teacher’s school under an order from then conceivably the subsequent closure of the school the state board of health “on account of the in response to the smallpox epidemic might have been influenza epidemic.” Although the plaintiff was foreseeable, such that the board of education would be able to teach for only fourteen days of the two- excused from paying the teacher’s salary. Alternatively, month period, the teacher claimed pay for the the Court suggested that “[t]he board of education entire two months, arguing that she had been might have stipulated that the plaintiff should have no ready and willing to teach the entire time. The compensation during the time the school should be closed school district paid the teacher for the fourteen on account of the prevalence of contagious diseases…” In days she had actually taught, but refused payment the absence of these circumstances, the Court concluded, for the days the school was closed. Litigation “[the board] cannot deny the compensation during such ensued, and both the circuit and appellate courts time on account of the prevalence of smallpox.” ruled in favor of the teacher. In Gear v. Gray, 37 N.E. 1059 (Ind. Ct. App. 1894), In McKay v. Barnett, 60 P. 1100 (Utah 1900), the Supreme school trustees contracted with the plaintiff to teach Court of Utah ordered the board of education to school for thirty-two weeks. After the twenty-eighth pay a teacher for sixteen days that the teacher’s week, however, the trustees under order from the school was closed in response to a smallpox epidemic. In doing so, the Court rejected the cont’d on page 6 5 CORONAVIRUS, CONTRACTS, AND FORCE MAJEURE: WHAT EVERY LAWYER NEEDS TO KNOW (cont'd) board of health closed the school in order to prevent a Notably, a common theme in these historical court diphtheria epidemic. The trustees subsequently refused opinions involving schools and epidemics is that the to pay the teacher for the remaining four weeks of her teachers were, often by contract, unable to mitigate their contract. The trustees argued that an act of government, losses by obtaining other employment. Although now a board of health order closing the school, necessarily that’s not always the case. excused the trustees from performing under the contract. Alternatively, the trustees suggested that the diphtheria Somewhat similar to the school epidemic cases, but epidemic, “which was an act of God,” justified closing in a more recent decision, one federal court addressed the school and excusing the trustees from performing the closure of an egg production plant precipitated under the contract. In analyzing these issues, the by the Avian Flu. The court also tackled the issue of court recognized that “it is often a difficult question to whether an impacted party could raise excuses outside determine when such failure to perform was caused by of those provided in a force majeure clause. Rembrandt an act of God, as mere hardship or great difficulty will Enterprises, Inc. v. Dahmes Stainless, Inc., No. C15- not suffice.” Nevertheless, “the closing of a school by 4248-LTS, 2017 WL 3929308 (N.D. Iowa Sept. 7, the order of a school board or a board of health is not the 2017), involved a purchase agreement between a large act of God, however prudent and necessary it may have scale producer of eggs and a manufacturer of industrial been to make such order. It was one of the contingencies egg dryers. In an effort to expand its business with which might have been provided against by the contract, cereal producer Kellogg, Rembrandt Enterprises began but was not.” constructing an egg processing plant in Thompson, Iowa. Rembrandt began construction of its Thompson facility In affirming judgment in favor of the teacher, the court in fall 2014. That same year Rembrandt also entered noted that under the contract, the teacher’s compensation into a purchase agreement with Dahmes Stainless for an “was not confined to the actual number of days taught.” industrial egg dryer. The trustees had not discharged the teacher as soon as the trustees closed the school. Thus, the teacher In spring 2015 an epidemic of Avian Flu occurred in was still “bound to hold herself in readiness to teach” the Midwestern United States affecting six Rembrandt whenever the contagion might have terminated, and had facilities—but not the Thompson facility. Nevertheless, the teacher not been so ready, then she might have been Rembrandt was forced to eliminate over one million liable for breach of contract. The court also suggested birds, which reduced its production capacity by over that the trustees could have compelled the teacher into a 50%. As a result of this lost capacity, Rembrandt delayed performance of her teaching obligation, which exercised the force majeure clause in its supplier would have satisfied the terms of the contract. “Besides, contracts and began distributing eggs to its buyers on a it is not made to appear by the answer that the days lost pro rata basis. In order to reduce the risk of infection, on account of the order of the board of health or the Rembrandt also limited access to its Thompson facility. prevailing contagion could not have been properly or Soon, Rembrandt began losing business and in May 2015 conveniently made up after the close of the term. There halted construction of its Thompson facility. Ultimately, is no averment that the contagion still prevailed at the Rembrandt abandoned construction of the Thompson close of the term, or that the order of the health board facility—including its purchase of the egg dryer from continued in force thereafter. The custom of allowing Dahmes. In doing so, Dahmes alleged that Rembrandt teachers in the public schools to do this has grown to be had breached the parties’ contract. Litigation ensued and such a common one that courts are bound to take judicial the parties filed cross motions for summary judgment. notice of the same. There is nothing in the contract before us which requires the teaching to be done on consecutive Dahmes argued that by including a force majeure days, and, for aught that appears, the term may be clause in the parties’ contract, Rembrandt was limited extended a reasonable number of days, when necessary, to the express provisions of that clause and could not until the contract has been fulfilled.” In so stating, the pursue other relief provided by the Uniform Commercial court highlighted the importance of properly identifying Code (commercial impracticability) or the common law both the occurrence and duration of a force majeure in doctrine of frustration of purpose in order to excuse the exercise of modern-day force majeure clauses. cont’d on page 7 CORONAVIRUS, CONTRACTS, AND FORCE MAJEURE: WHAT EVERY LAWYER NEEDS TO KNOW (cont'd) Rembrandt’s nonperformance. The force majeure clause was no “conflict of inconsistency” in the simultaneous provided no remedy for Rembrandt because In response, assertion of force majeure, either by contract or by Rembrandt argued that the force majeure clause was common law application, and the doctrine of frustration inapplicable because “[t]here is simply nothing in the of purpose, and even suggested that the two doctrines force majeure clause… that supports Dahmes’ argument might be complimentary. that the parties intended this clause to allocate the risk that an unforeseen event such as the [Avian Flu] What should I do now to protect my interests in outbreak would prevent construction of the Thompson the exercise of a force majeure clause? facility and render the dryer useless.” The court agreed with Rembrandt. Analyze the impact that Coronavirus/COVID-19 and any related events have on your ability to perform. The bottom line is that the individual circumstances Identify all events that have affected or have the potential of each case and each contract need to be closed to affect your ability to perform under an existing analyzed. A slight change in wording can make a world contract. Then compare and contrast these events to the of difference. force majeure clauses in your contracts. Document your efforts to ensure your ability to perform or to mitigate In denying Dahmes’ motion for summary judgment damages resulting from your nonperformance. Quantify the court found that Rembrandt’s decision to scuttle its any actual and potential damages and update these Thompson facility was not a force majeure event “as figures on a continuing basis. defined in the contract.” “Nor does any language in the force majeure clause suggest that it was written to apply Conversely, identify customers, suppliers, and other if one party to the contract makes a unilateral decision to counterparties whose performance may be affected by terminate performance of the contract for market-based Coronavirus/COVID-19 and any related events, and reasons.” The Court was also not persuaded by Dahmes’ proactively contact them regarding their continued arguments on the preclusion of frustration of purpose ability to perform. as a defense by Rembrandt. The Court noted that there

ANNUAL MEETING AND AWARDS LUNCHEON Thursday, August 27, 2020 • 1:30 P.M. on Zoom Due to COVID-19, the New Orleans Chapter of the Federal Bar Association will host its Annual Meeting and Awards on Thursday, August 27, 2020, on Zoom. The recipients of the 2020 President's, Professionalism, and Pro Bono Awards will be recognized during the Annual Meeting on August 27, 2020. More info on www.nofba.org.

José R. Cot Kathryn M. Knight William C. Snowden 2020 President's Award 2020 Prfessionalism Award 2020 Public Service Award 7 HON. WENDY VITTER, U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF BY LARRY CENTOLA

Judge Vitter May Be the another legal job, Judge Vitter decided to continue her Only Federal Judge Who passion and commitment to the Orleans Parish District Worked at McDonald’s Attorney’s office by working without pay until the While Practicing Law office’s funding was restored. During the time, Judge Vitter worked as an unpaid assistant district attorney each day and worked the nightshift at a McDonald’s to In advance of a recent makes ends meet. Judge Vitter would spend her days in presentation at the New the historic neoclassical criminal court house completed Orleans Chapter of in 1931 and her evenings next to the fryer at McDonalds. the FBA’s Bench Bar Conference, Judge Wendy Judge Vitter Prosecuted the First Louisiana Criminal Vitter’s law clerks were Trial Using DNA Evidence The Hon. Wendy B. Vitter, asked for a unique fact Eventually, the budget was restored, and Judge Vitter was United States District Court about the judge. The law again a paid assistant district attorney in New Orleans. for the Eastern District of clerks informed us that She eventually rose to chief of the felony trials division Louisiana Judge Wendy Vitter is at the district attorney’s office. There, she prosecuted likely the only federal over 100 jury trials, primarily homicide cases, as well as judge who worked at McDonald’s while practicing law. trying the first capital case in Louisiana that used DNA Judge Vitter earned her B.A. from Sam Houston State evidence. University and her J.D. from Law In that groundbreaking case, the victim was a School. Judge Vitter’s father started practicing law as developmentally challenged granddaughter of a an assistant U.S. attorney and then practiced insurance couple who managed an apartment complex. The defense. Judge Vitter was inspired by her father to grandparents, who had custody of their granddaughter, become a lawyer. Also, a particular high school guest left the granddaughter at their apartment alone, when lecturer in New Orleans inspired a young Wendy Vitter the maintenance man of the complex knocked on the to be an assistant district attorney. When the then-Orleans door. The granddaughter knew the maintenance man and Parish District Attorney Harry Connick Sr. spoke to allowed him into the apartment. Judge Vitter’s high school class, he encouraged all the students to become lawyers. During that visit, Judge The grandparents returned home to find their Vitter matter-of-factly told the district attorney that granddaughter’s strangled and assaulted body. Although she would one day work for him at the Orleans Parish the maintenance man admitted to knocking on the door, District Attorney’s office. Less than 10 years later, she he claimed that he never entered the apartment and that would find herself seated next to him, prosecuting one of the victim was alive and well when he left the apartment. the most significant cases in her career. There were no witnesses and little direct evidence besides the DNA evidence. While prosecutions with As an undergraduate, Judge Vitter worked at the Texas DNA evidence are now commonplace, at the time, DNA Department of Corrections and helped inmates with evidence was not an established theory of science to habeas appeals. Upon graduating from law school link a victim to an assailant. Judge Vitter and her team and, after serving as a law clerk in the Orleans Parish had to educate themselves, learn from the scientists, and District Attorney’s office during her entire time in law then educate the judge and jury. Judge Vitter and her school, Judge Vitter was hired as an assistant district team successfully used the DNA evidence and secured attorney. Soon after being hired, the Orleans Parish a conviction. District Attorney’s office suffered budget cuts, a routine occurrence during that time. To comply with the budget At the conclusion of that case, Judge Vitter was happy cuts, some lawyers had to be let go. The rule was that to see that justice was served. “We worked especially the last one hired was the first one let go. Since Judge hard during that case, because of the newness of the Vitter was a brandnew hire, she found herself without a paying attorney position. Instead of attempting to find cont’d on page 9 HON. WENDY VITTER, U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) scientific evidence, but our goal remained the same— New Orleans. Prior to being named archbishop in New justice for the victim and her family,” Judge Vitter stated. Orleans, Archbishop Aymond was the Bishop of Austin. During her time as a prosecutor, that was always her Once in New Orleans, Archbishop Aymond would often goal: to make sure that justice was served. Regardless see Judge Vitter when she performed community service of the mechanics, whether justice was served through a for various Catholic services and projects. While he was conviction, a not-guilty verdict, a plea, or a nolle prossed Bishop of Austin, Aymond had a person serving in the or dismissed case, her mission then (and now) was to role of general counsel for that diocese. Although there ensure that justice was served. was no general counsel position at the Archdiocese of New Orleans, given the archbishop’s experience Former New Orleans District Attorney Harry Connick in Austin and given Judge Vitter’s work, ethics, and Sr. described Judge Vitter as “honest, impartial and an commitment to Catholic causes and to the rule of law, outstanding legal scholar .” The Honorable Camille Archbishop Aymond made her the first general counsel Buras, judge of Orleans Criminal District Court, had this of the Archdiocese of New Orleans. Judge Vitter served to say about Judge Vitter: as general counsel from 2012 to 2019, representing “I had the pleasure of working with Wendy over thirty the body and its various entities in all legal matters years ago when we were Orleans Parish Assistant District involving Catholic charities, Catholic churches, and the Attorneys working for Harry Connick. The terrific work Catholic school system. She handled matters ranging ethic and enthusiasm for her profession she had then are from employment-related issues (including Title VII) to just as evident today. Wendy is a tremendous asset to property issues, and from individual student discipline the federal bench and I really look forward to seeing her issues to broad business issues facing one of the business quick-thinking, logical mind and her personal skills put entities. While working as the general counsel of the to use managing a large, complicated docket.” Archdiocese of New Orleans, Judge Vitter learned lessons that strengthened her commitment to service and Judge Vitter Was the First General Counsel of the helped her to see her job as a ministry. Archdiocese of New Orleans Most Reverend Gregory M. Aymond, Archbishop of New After leaving the district attorney’s office, Judge Vitter Orleans, had the following to say about Judge Vitter: practiced admiralty defense at a prominent New Orleans law firm. Judge Vitter sought to work a flexible schedule It has been a privilege to work with Judge Wendy when her oldest daughter turned one. At the time, that Vitter when she served as General Counsel for the type of scheduling did not work for that firm. Judge Vitter Archdiocese of New Orleans for seven years. She made the decision to take a break from the formal practice not only performed her work in a very effective of law and focus her attention on community activities, way but also showed pastoral concern for all those local politics, and raising a family. About two years with whom she worked. She is truly a woman of later, the managing partner of her former firm contacted deep faith and integrity. She brings those gifts her and asked her to return to the law firm, offering to with her as she enters into this new responsibility work out a flexible schedule. At the time, Judge Vitter as a judge. Our government will be blessed by her was pregnant with twins and was enjoying the time dedication. spent raising her family. She declined to enter back into Judge Vitter Lives a Life of Service to Others the formal practice of law and chose to concentrate on raising her family. She thinks about that decision often On Jan. 23, 2018, President nominated and strives to find creative ways to allow good people Judge Vitter to the seat on the U.S. District Court for the to work in the legal field. Judge Vitter has said “I don’t Eastern District of Louisiana. Judge Vitter was confirmed regret for one moment putting my family first. But I also by the Senate on May 16, 2019. want to be someone who can help a talented attorney Since taking the bench, Judge Vitter has been impressed find a way to raise a family and be a successful attorney with the level of preparedness and professionalism from on terms that benefit everyone. That is important to me.” the practitioners in the Eastern District of Louisiana. In 2009, Archbishop Gregory M. Aymond became the 14th Archbishop of the Roman Catholic Archdiocese of cont’d on page 10 9 HON. WENDY VITTER, U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) Although some of the general public like to make Judge Vitter believes that this life is about how we help lawyers the butt of jokes, Judge Vitter has found quite others. She saw Archbishop Aymond’s commitment to the opposite. She has found that the practitioners in the serve and to help others. Judge Vitter sees her time on the Eastern District of Louisiana are great advocates for bench as a continuation of her own commitment to serve their clients, while treating each other and the law with and to help others—a commitment that started in the the appropriate amount of respect. “I have always held district attorney’s office, was furthered and confirmed by my head up high when saying that I am an attorney. I raising children, and continues today while ensuring that wish the general public would see the professionalism justice is served, no matter the specific form, for all that and hard work that I see every day from the members of come before her court. the bar.” Reprinted with permission from the May/June 2020 Judge Vitter’s advice to young lawyers, and to all issue of The Federal Lawyer. © 2020 Federal Bar lawyers, is to make sure that you have something outside Association. All rights reserved. Further duplication the law that keeps you grounded. For Judge Vitter, her without permission is prohibited, contact (571) 481- faith keeps her grounded. For others, it may be family, 9100 or [email protected]. exercise, volunteerism, or a host of other positive life influences.

LUNCH WITH THE COURT

Lunch with Chief Judge Nannette Jolivette Brown

On May 20, the Young Lawyers’ Division of the FBA held its first virtual Lunch with the Court with Chief Judge Nannette Jolivette Brown via Zoom. Chief Judge Brown recounted the measures the Court has taken in light of the COVID-19 pandemic, including increased use of video-conferencing software to hold hearings. The Chief Judge emphasized the consensus of all of the EDLA judges with the measures the Court has taken and noted that the Court’s past experience in the aftermath of Hurricane Katrina has helped to provide guidance for moving forward through this crisis. Chief Judge Brown additionally discussed possibilities of how the Court might move forward with jury trials in the future and the need to balance the constitutional right to a speedy trial with the right to a fair trial as well. Chief Judge Brown noted that during this trying time, she has made a point of taking the time to “stop and smell the roses” and enjoy the little things in life – good advice for all of us. Chief Judge Nannette Jolivette Brown, United States District Court for the Eastern District of Louisiana, is pictured during the first Zoom Lunch with the Court. YLD CHAIR'S MESSAGE BY: ALYSSON MILLS

It would take too much space to summarize all the great things the YLD did this year. Thank you to everyone who attended one of our events but thank you especially to the individual members of the YLD board for delivering enriching programming month after month. The last FBA event before the coronavirus pandemic postponed in-person events indefinitely was a YLD event. On March 11, FBA members enjoyed a curator’s tour of the Sydney and Walda Besthoff Sculpture Garden at the New Orleans Museum of Art, one of several Evenings with the FBA that the YLD hosted this year. Thank you to Rebecca Cooper and her team for organizing these events which are even more special in hindsight, given today’s restrictions on social gatherings. Our members have made the most of the current situation by offering regularly scheduled programming via Zoom (special thank you to Chief Judge Brown and Judge Grabill for hosting virtual Lunches with the Court) and offering new programming to meet new needs (special thank you to Alex Aughtry for putting together a series of virtual Q&As for law students). One of this year’s biggest takeaways isn’t an event but an idea. The YLD’s CLE Committee, led by Arthur Kraatz, wanted to make our CLE panels more diverse and presented to the YLD board a draft diversity policy. The resulting months-long debate—not so much about the merits of the goal but the best way to achieve it—has made us a stronger organization. In this moment, our members’ sensitivity to underrepresentation and commitment to addressing it seem prescient. Thank you to Arthur and his committee for giving us all an opportunity to be thoughtful and proactive.

NEW MEMBERS The Federal Bar Association welcomes its new members:

Mr. Samuel T. Brandao Mr. Ian Dunbar Mr. Jon S. McGill, Sr. Mrs. Stella Cook Cutrer Tulane University Law Office of The Law Offices of Shackelford Law School Christopher Szeto Jon S. McGill, LLC Ms. Sara C. Valentine Ms. Melanie A. Bray Mrs. Krystin Mariell Mr. Foster P. Nash, III Adams and Reese LLP Disability Rights Louisiana Frazier-Santiago Degan, Blanchard & Nash Kelly Hart & Pitre Mr. Andrew Jack Walker Ms. Kieone Hattie Cochran Ms. Michelle Marie Jones Fussell, LLP Office of Medicare Hearings Ms. Shermin S. Khan O’Daniels and Appeals 38th JDC MOD Legal, LLC Ms. Charlotte Washington State of Louisiana Mr. Victor M. Dantin Mr. Gillis W. P. Klotz Prof. Chad Andrew Rice Irwin Fritchie Urquhart Swansea University Loyola University New Mr. Thomas C. Wicker, IV & Moore LLC Orleans College of Law Jones Walker LLP Mr. Mickey Patrick Landry Landry & Swarr, LLC

If you would like to become a member of the FBA, or know someone who would like to become a member, please call Brian Capitelli, Membership Chair, at (504) 582-2425, or Amanda Kaiser, Executive Director, at (504) 589-7990 for more information.

11 JUSTICE CAMP

Despite worldwide upheaval caused by the COVID-19 On the first day, students heard from Sean Brady and pandemic, the New Orleans Chapter of the Federal Bar Rachel Naquin about the anatomy of a lawsuit, from the Association was able to forge ahead with its third year initial client meeting to closing arguments at trial, using of Justice Camp, an academic program designed to the fictional scenario of Kyle Baskin v. Joe Eccentric to impart civics education and advocacy skills that prepare illustrate the lesson and allowing students to deliberate local high school students for college, careers, and civic as the jury in the case. Students next participated in a engagement. In previous years, freshman and sophomore presentation by William Snowden (Director of the Vera students from local high schools participated in a three- Institute of Justice and Founder of the Juror Project), day camp at the United States District Court for the who explained the effect of implicit bias on the jury Eastern District of Louisiana, which consisted of different selection process and the importance of diverse juries to activities, such as observing court proceedings, hearing our criminal justice system. On the third day, students from different representatives within the court system, learned about internet safety and security from Assistant exercising their analytical skills to answer questions U.S. Attorney Jordan Ginsberg. The fourth day of camp about the law and the Constitution, and participating in a included an introduction to criminal law by Sara Johnson mock trial on the final day. (Sara Johnson Law) and Assistant Federal Public Defender Celia Rhoads, particularly the protections When confronted with the challenges of the state’s afforded by the Fourth, Fifth, and Sixth Amendments stay-at-home order and social distancing procedures, of our Constitution. Justice Camp concluded with a as well as the possibility of canceling this year’s camp presentation by Ashley Heilprin (Phelps Dunbar, LLP) over health and safety concerns, the dedicated members and Scott Sternberg (Sternberg, Naccari & White, LLC), of the Justice Camp Committee quickly mobilized to who spoke to students about the rights guaranteed by the adapt the program to a virtual platform in just over a First Amendment and discussed the limited instances month’s time. While the camp was scheduled to take when speech can be restricted by the government. place at the end of June, the team made the decision to move the event to the first week of May to coincide with The virtual adaptation of Justice Camp for at-home the at-home learning curricula in which many students learning was well received by the student attendees. were participating. The program was also expanded to Hrilina, a student of SummerStone Academy who include both middle school and high school students attended last year’s Justice Camp as well, said, “I and extended to five days with hour-long, interactive commend the Justice Camp coordinators’ willingness to presentations each day. The presenters went all-out to adjust to a virtual format just so Justice Camp could take learn the bells and whistles offered by Zoom technology, place this year. I am so impressed they were able to take and the sessions were loaded with not just PowerPoints, such an incredible interactive and informative in-person but also surveys answered by the kids with results learning experience and find a way to host it online, immediately revealed, Q&A, vigorous chats, and virtual designed with just as much interaction and information. hand raising. The presentations, always targeted to this Everything that could have been shared remotely was demographic, went to new levels of appealing to teens, included in this experience.” especially a lively role-play by Sean Brady (Flanagan The New Orleans Chapter of the Federal Bar Partners, LLP), as tiger-mauled Kyle Baskin, and Rachel Association would like to thank everyone involved, Naquin (Gainsburgh, Benjamin, David, Meunier & particularly the Justice Camp Committee members who Warshauer, LLC), as derelict tiger-owner, Joe Eccentric. did not hesitate to jump into action when confronted with Sixty students across the country, some even tuning the unique challenges of creating virtual content for the in from Europe, registered for the online sessions of students. Special thanks to Judge Janis van Meerveld, Justice Camp which were recorded on Zoom and later Scott Sternberg, Amanda Kaiser, and Rachel Naquin for posted to the New Orleans Chapter’s YouTube channel their hard work in planning and executing the third year for students who missed the live presentations. Each day of Justice Camp and the first year of an online program. began with opening remarks from the Co-chairs of the Justice Camp Committee, Judge Janis van Meerveld and Scott Sternberg, followed by presentations from local practitioners in the legal field. JUSTICE CAMP PHOTO ALBUM

Assistant Federal Public Defender Celia Rhoads and Sara Johnson gave an introduction to criminal law on the fourth day of camp.

The Hon. Janis van Meerveld enjoys Sean Brady and Rachel Naquin’s Justice Camp presentation of Joe Eccentric and Kyle Baskin.

Ashley Heilprin and Scott Sternberg wrapped up the Justice Camp with a discussion on the First Amendment. On the second day of Justice Camp, students enjoyed Scott Sternberg and the Hon. Janis van Meerveld William Snowden’s annual presentation on implicit bias were involved in critical roles throughout the camp, and jury diversity. tying the lessons together and ensuring the virtual camp was a success.

The Hon. Janis van Meerveld and Assistant U.S. Attorney Jordan Ginsberg watch as a clip from My Cousin Vinny plays. Despite the limitations of this year’s camp, presenters kept students engaged with video clips, live performances, and interactive components. FIFTH CIRCUIT COURT OF APPEALS CLERK’S OFFICE UPDATE BY: LYLE CAYCE, CLERK

Anyone reading this is fully aware of the COVID-19 Pandemic’s impact on all aspects of society, including the legal community. National, state, and local emergency directives impacted almost every aspect of our daily lives as authorities tried to limit the spread of the virus. We all quickly became experts on things such as flat- tening the curve, social distancing, and PPE (personal protective equipment). The Fifth Circuit Court of Appeals, like all other federal and state courts, had to significantly modify operations in response to the virus. Yet we recognized that it was essential that we continue to perform our constitutional mission while adhering, as much as possible, to the often changing state and local restrictions. But this was not our first rodeo; Katrina and other emergencies had taught our court the value of preparation. Our Continu- ity of Operations/Business Continuity Plan (COOP) guided our actions as we modified operations based upon assessments of the Center for Disease Control and Prevention (CDC), and other health officials, as well as the President’s national emergency directives and the directives of state governors and local officials in our circuit. As the situation worsened, we modified and curtailed operations to protect court employees and the public. A series of General Orders closed the courthouse and clerk’s office to the public, granted automatic extensions for filers, and suspended the requirement of filing paper copies of pleadings. We encouraged pro se litigants to file submissions by email or to deposit pleadings in a newly erected Drop Box at our main entrance. Judges, chambers staff, and all court employees maximized telework. Because we regularly test our ability to telework in preparation for tropical storms, we were able to perform all essential court missions with just a few employees in the clerk’s office. Unfortunately, four of these employees contracted the virus, forcing a temporary closure of the entire office, pending a thorough cleaning and disinfecting of the facility. After this cleaning, only mail room staff went to the office – and only long enough to process the correspondence. We later increased staffing as the state and city transitioned to different phases of their recovery plans. We schedule up to five three-judge panels to hear oral argument one week each month and had to postpone arguments scheduled for March 30 to April 3. Recognizing that the pandemic would continue, and we could not postpone arguments indefinitely, the court voted to permit panels to conduct arguments using audio or video. We had never done this previously and local rules required court approval. The clerk’s office and Circuit Executive IT staff quickly developed procedures for audio or video arguments and conducted rehearsals with counsel to ensure arguments proceeded smoothly. Thereafter, panels sitting in May, June, and July successfully conducted video arguments, as did some of the panels that had postponed earlier arguments. To ensure public access to the proceedings, we live streamed the oral arguments and posted the audio recording on our website following the arguments. The pandemic did not just impact pending appeals – we received over 60 new COVID-19 related appeals, many challenging various aspects of state or local emergency orders. Most of these were either filed as emergency matters, or otherwise required expedited review. Our court successfully processed each of these appeals in a timely manner. As of the time of this writing, state and local authorities have relaxed constraints, but we are far from “business as usual.” We look forward to the day when the emergency is over and we can return to normal operations, for we value and miss our interactions with the bar and public. If you have comments about our service during the pandemic or any other matter, contact us at [email protected]. NOTICE OF ANNUAL MEETING AND ELECTION OF OFFICERS AND DIRECTORY AUGUST 27, 2020

The New Orleans Chapter of the Federal Bar Association will host its Annual Meeting and Awards on Thursday, August 27, 2020 online through Zoom. The meeting will be held at 1:30 p.m. - 2 p.m. There is no cost to participate, but reservations must be made on Eventbrite no later than August 26, 2020. Information on registration can be found at nofba.org. Please direct questions to Amanda Kaiser, Executive Director at [email protected]. In accordance with the Chapter’s By-Laws, Steven F. Griffith, Jr., our current President-Elect, will automatically succeed Hon. Nannette Jolivette Brown, as President of our Chapter. Election of the remaining officers and directors will take place at the Annual Meeting. The Nominating Committee has nominated the following:

Chapter Officers (2020-2021) President: Steven F. Griffith, Jr. President-Elect: Hon. Donna Phillips Currault Treasurer: Michael J. Ecuyer Recording Secretary: Brian J. Capitelli Membership Chair: José R. Cot Immediate Past President: Hon. Nannette Jolivette Brown Younger Lawyers Representative: Laura F. Ashley Ex Officio: Amanda Kaiser, Executive Director Hon. Carol Michel, Clerk of Court, EDLA

Chapter Board of Directors (2020-2021) William D. Aaron, Jr. Kathleen C. Gasparian Stephen L. Miles W. Raley Alford, III Hon. Tamia Gordon Hon. Susie Morgan Phil Antis Hon. Meredith S. Grabill Stephen G.A. Myers Erin K. Arnold Hon. Greg G. Guidry Kim Ngan Nguyen John Balhoff, II Alida C. Hainkel Hon. Michael North Hon. Carl J. Barbier Stephen Haedicke Kelly Rabalais Vanessa Beary Stephen Herman Elizabeth S. Sconzert Sean P. Brady Sara A. Johnson Karen Waters Shipman Cory R. Cahn Claude J. Kelly, III Scott L. Sternberg Christine M. Calogero Kathryn M. Knight Diana Surprenant Colin B. Cambre Christopher K. LeMieux Kelly E. Theard Hon. Lyle W. Cayce Hon. Mary Ann Vial Lemmon Hon. Janis van Meerveld Lawrence J. Centola, III Carey L. Menasco Hon. Wendy B. Vitter Hon. Dana M. Douglas Diana Mercer Peter J. Wanek Duane Evans Hon. Jane Triche Milazzo Sharonda R. Williams

15 LANDMARK CASES PROJECT The FBA’s Young Lawyers Division continued its remarkable skill and progress in engaging in respectful, commitment to public service, education, and training reasoned dialogue with their peers and teachers on issues future advocates in the 2019-2020 school year through that are often emotionally charged, even among adults. the fourth year of its Landmark Cases Project. The Each year, the Landmark Cases Program culminates in Landmark Cases Project is a program targeting a mock oral argument exercise in U.S. District Court. economically disadvantaged high school students The Hon. Barry W. Ashe volunteered to host this year’s that is designed to build students’ understanding of arguments. Unfortunately, the 2019-2020 school year constitutional law concepts, hone their ability to engage and program ended abruptly in March with the outbreak in civil discourse, and effectively advocate for a position of COVID-19, so the students were unable to participate with reasoned arguments. in this capstone project. This year, the YLD continued its partnership with the YLD board members Alex Aughtry, Eric Foley, and Jacob civics and history departments of International High Weixler led this year’s program. Raley Alford, Kristen School of New Orleans, a public, college preparatory Amond, Rebecca Cooper, Kathleen Gasparian, Palmer charter school housed in the L.E. Rabouin school Lambert, Jennifer Lampton, Annie McBride, Alysson building. 82% of IHSNO’s students are economically Mills, and Lucas Self volunteered to lead sessions disadvantaged and 94% are students of color. Each or develop the program’s materials. Many additional Landmark Cases session has three sequential objectives: thanks to the Hon. Barry W. Ashe and his chambers for (1) introduce students to a fundamental constitutional volunteering to host this year’s oral arguments, and to law issue, (2) explore foundational judicial decisions on the Hon. Janis van Meerveld for her continued support of the issue, and (3) guide students to apply the concepts both the Landmark Cases Project and IHSNO’s students. they have learned as advocates in a hypothetical case. The Landmark Cases Project sessions are developed by The school district’s plans for the 2020-2021 school year YLD members in conjunction with IHSNO’s classroom are evolving, but the YLD plans to continue its work with teachers. The YLD and IHSNO design the sessions to the Landmark Cases Project and IHSNO in some form complement the school’s civics and history curriculum, next year. YLD members look forward to building on, aid student achievement in meeting or exceeding state adapting and improving the Project in the coming year, testing standards, and address matters of national particularly in light of the ongoing national conversation importance in which the students demonstrate an interest. on race, civil liberties, voting rights, and police powers. The YLD thanks this chapter and the national FBA for its For the 2019-2020 school year, the YLD developed generous support, and the faculty and students of IHSNO new sessions concerning the constitutional rights of for participating in the Landmark Cases Project. non-citizens, the constitutional origins of voting rights, and the debate over the limits of religious liberties. The Teaching the next generation of advocates through the sessions were developed and led by YLD public service FBA’s Landmark Cases Project is a rewarding way to and private practice volunteer lawyers, who infused give back to our community. If you are interested in their own professional and personal experiences into the volunteering in any capacity with the Landmark Cases classroom discussions. IHSNO’s students successfully Project, please email [email protected]. Any assistance absorbed the constitutional concepts and central is greatly appreciated. arguments in each session. The students also showed RUBIN SYMPOSIUM HIGHLIGHTS IMPLICIT BIAS IN THE LAW AND LAW FIRMS Kathlyn Perez, Perez Law LLC

become aware of their implicit biases and to take action where possible to mitigate its influence. Mr. Snowden, a former public defender who has spent years studying how implicit bias and racial anxiety affect outcomes in the criminal justice system, offered a critical look at the various parts of the criminal justice system impacted by implicit bias. For example, when public defenders have high caseloads and little time to get to know Dean L. Song Richardson, the Hon. Janis van Meerveld, Kathlyn Perez individual clients, unconscious biases may and William Snowden presented during the annual Judge Alvin B. Rubin influence how the public defender views Symposium, this year hosted in conjunction with the national FBA. the merits of the client’s defense, how the public defender triages the case, and On May 6, 2020, for the first time in its 28-year otherwise affects the long term attorney- history, the Alvin Rubin Symposium was held in a virtual client relationship. Biases also affect prosecutors, who format due to COVID-19. The symposium, attended may hold implicit racial (or other) biases, which impact by nearly 200 people in more than 30 states, examined how the prosecutor views the defendant, and perhaps “Implicit Bias in the Law, the Court System, the the leniency or harshness of the charges against the Legal Community, and your Legal Career.” It featured defendant and/or any plea deal offered. These issues are keynote speaker Dean L. Song Richardson, University only compounded by the unconscious biases of judges of California, Irvine School of Law, whose presentation and juries. One way that Mr. Snowden has worked to was followed by a panel discussion including William improve these injustices in the criminal legal system is Snowden of the Vera Institute of Justice and founder of by working with district attorneys around the country The Juror Project; the Honorable Janis van Meerveld, to examine whether charging and plea decisions are Magistrate Judge of the Eastern District of Louisiana; influenced by race, leading people of color to be punished and Kathlyn Perez of Perez Law LLC. more severely than white people for the same crimes. Dean Richardson’s interdisciplinary research focuses Following Mr. Snowden, Magistrate Judge van on decision-making and judgment in a variety of contexts, Meerveld and Ms. Perez examined how implicit bias including the science of implicit bias and its influence on impacts private practice. For example, despite the fact decisions, perceptions, and judgments. Dean Richardson that women and people of color represent approximately explained that implicit bias is an unconscious product 50% and 33%, respectively, of those graduating law of our encounters from childhood through adulthood, school, women represent only 30% percent of law firm influenced by everything from geographic location to partners and people of color represent only 10%.1 At social class, mental and physical abilities, profession, the equity partner level, the numbers are even worse, age, gender, family and marital status. These ingrained 20% and 8%, respectively.2 One explanation for these impressions are further colored by our own observations, disparities in success of women and people of color in the media and stereotypes. Contrary to traditional law firms is implicit bias, which often results in penalties concepts of discrimination and explicit bias, implicit (or against female attorneys and people of color. unconscious) biases operate below the surface, largely beyond an individual’s conscious awareness. Yet, these 1 “Representation of Women and Minority Equity Partners Among biases have a profound impact on how people navigate Partners Little Changed in Recent Years,” NALP Bulletin 2019 avail- the world, and often lead to biased decision-making, able at https://www.nalp.org/0419research. even when the decision-maker intends to be fair. After 2 Id. highlighting numerous studies demonstrating implicit cont’d on page 18 bias, Dean Richardson challenged the attendees to 17 RUBIN SYMPOSIUM HIGHLIGHTS IMPLICIT BIAS IN THE LAW AND LAW FIRMS (cont'd)

In one study, Nextions, LLC asked law firm partners Another way that law firms can intentionally work to to review a legal memo, ostensibly written either by improve representation of traditionally underrepresented an African-American male associate or by a white groups is to mindfully address how lawyers are male associate. The two memos were identical. Of nominated, appointed or elected to firm leadership. the 60 partners from different firms who evaluated the For example, the Mansfield Rule, instituted in 2017 by memo, 23 were women, 37 were men; 21 were racial or Diversity Lab, requires participating law firms in its ethnic minorities, and 39 were Caucasian. The partners certification program to formally consider 30 percent rated the memo ostensibly written by the white associate women, attorneys of color and LGBTQ+ lawyers for all an average of 4.1/5 and the same memo with an African leadership roles as well as lateral hiring and promotions American author an average of 3.2/5. Comments to partner. A similar certification is available from about the white associate’s writing included “has Women In Law Empowerment Forum (WILEF), which potential” and “good analytical skills.” Comments offers “Gold Standard Certification” for firms who have relating to the African American’s writing included 20% women equity partners or, alternatively, 33% of “needs a lot of work” and “average at best.”3 the attorneys earning equity partnership during the past twelve months being women, combined with additional Judge van Meerveld and Ms. Perez discussed specific criteria related to issues like percentage of women as ways that law firms (and its individual attorneys) can office managing partners, practice group leaders, board improve the experience of women, people of color, and members, and the like.5 While the Mansfield Rule and others traditionally underrepresented in private practice. WILEF certifications work best in larger firms, smaller The success of any young lawyer depends on the quality firms (or corporations with in-house counsel) can easily of opportunities presented to that person. The easiest way implement modified versions of these programs to ensure for partners in a law firm to assist is to provide meaningful that they are considering diverse candidates for positions opportunities to attorneys from underrepresented groups: of leadership and significant opportunities. assign good cases; take them to court and allow them to argue;4 include diverse teams for client development There is certainly much work to be done with respect trips and pitches; include different voices and faces in to mitigating the impact of implicit bias in the law and presentations, CLEs, and firm committees. law firms, as demonstrated in the recent George Floyd protests and Black Lives Matter movement. Lawyers Law firms also have an opportunity to adopt policies have a unique opportunity and play an important role in and pursue internal committees and programs that can addressing these issues: they are the gate -keepers to the also help with implicit bias. For example, establishing justice system, a system that aspires to, but often falls far affinity groups, such as women’s initiatives, diversity short, of providing equal justice to all. committees and LGBTQ alliances, can provide a unified voice for underrepresented groups. Those affinity *Kathlyn Perez is a former Big Law partner, groups can also assist the firm to implement policies that who recently started her own law firm and consulting may assist with recruitment, retention, and advancement, company, Perez Law LLC, that provides training, policy such as gender neutral parental leave policies, diversity review and advices on implicit bias and D&I, as well as scholarships, mentoring programs and/or health benefits traditional employment-related legal issues. for domestic partners.

3 Dr. Arin N. Reeves, Nextions, “Written in Black and White: Explor- ing Confirmation Bias in Racialized Perceptions of Writing Skills,” see https://nextions.com/wp-content/uploads/2017/05/colored-by-race-yel- 5 low-paper-series.pdf. See https://wilef.com/certification/ 4 Judge van Meerveld discussed her practice of allowing two lawyers to argue motions so long as one of the lawyers has been licensed fewer than seven years. This allows younger and less experienced lawyers an opportunity to argue in her court, while also allowing the more sea- soned lawyer to add any additional arguments if necessary. "OPEN FOR BUSINESS" Highlights from Chief Judge Nannette Jolivette Brown's Town Hall on COVID-19 Response By: Meredith Clement, Tulane Law School, Class of 2022 Judicial Extern to Honorable Janis van Meerveld, Summer 2020

Steven F. Griffith, Jr. interviewed Chief Judge Nannette Jolivette Brown during N.O. FBA’s Town Hall Zoom.

On May 27, 2020, Chief Judge Nannette Jolivette everything else remains the same; hearings are not Brown of the Eastern District of Louisiana virtually “sat suspended, and all other deadlines stand, subject to the down” with members of the local bar in a Town Hall discretion of each presiding judge. Rules have been Zoom meeting to field questions and provide updates amended to allow for video and teleconferences in lieu of on the operations of the court amidst the COVID-19 personal appearances.2 “We, as judges, continue to move pandemic. FBA New Orleans Chapter President-Elect things along short of moving people into the building.” Steve Griffith interviewed Chief Judge Brown, walking Remote Court Operations: her through a list of questions submitted by members of Technology and Adaptation the local bar about the impact of the pandemic on EDLA operations. During the course of the Town Hall meeting, To facilitate these remote operations, the court is Chief Judge Brown made one thing abundantly clear— using Cisco Meeting—a government platform that is tied “the court is open for business and we never stopped.” to the audio recording system in courtrooms—to conduct Despite the current suspension of in-person proceedings court proceedings. Many court employees have also and jury trials, the court continues to operate at full speed, recently completed training for Zoom for Government. mostly via telework. While all court employees may not Zoom provides an alternative to Cisco Meeting, so the be working from their usual locations at the courthouse, court will have at least two virtual platforms, both of they are keeping the wheels of justice turning from afar. which have been carefully selected to secure against The court is accepting filings via ECF and mailing. Most security breaches. judges are proceeding with hearings and conferences via telephone or video. From a statistical standpoint, it is clear that the beginning of the stay-at-home period slowed down court Chief Judge Brown noted that the court’s workforce filings, but they are on the rise once again. Unsurprisingly, is stabilized in teleworking currently. She emphasized the biggest dip in filings was in March. Outside of MDL the need to return to in-person operations in a measured filings, court filings were down to roughly 1/3 of what way while addressing employee concerns and heightened they were in March of last year. However, the number of responsibilities. Pursuant to the court’s General Order 2 No. 20-6, jury trials that were scheduled between March Per General Order No. 20-8, enacted on June 26, 2020, the amended 1 rules allowing for otherwise ineligible proceedings to occur via tele- and August 1, 2020 are currently suspended. However, phone or video conference will apply for an additional 90 days or until September 24, 2020. 1 Per General Order No. 20-9, enacted on June 26, 2020, jury trials cont’d on page 20 are now suspended through October 5, 2020 and will be reset by each presiding judge. 19 "OPEN FOR BUSINESS" Highlights from Chief Judge Nannette Jolivette Brown's Town Hall on COVID-19 Response (cont'd) motions is now ticking up a bit. Cases are also resolving Judge Brown emphasized that the court does not take via virtual settlement conferences, and at a similar rate to lightly that the building is physically closed to the public. pre-COVID. Chief Judge Brown reiterated: “As lawyers “Access to justice is a constitutional right. Restrictions are ready to move forward, know we are ready to address must be justified. The phases are very strongly connected your motions. We want to help you move cases along to healthcare advice and statistics.” and resolve them. The court is open for business. We are ready and able to address motions that are filed and The Unique Challenges of COVID-19 other issues you may have.” Chief Judge Brown sees jury trials as a real challenge Four Phases of Reopening the Court for the court going forward. She has been sitting on national panels that have all been trying to work through The court has also taken actionable steps to employ the jury trial issue. “We want to have a speedy trial for a phased plan for reopening. The Administrative Office a criminal defendant, but we also need a fair trial with of the Judicial Conference has put together an excellent a cross-section of the community serving as a jury of team of personnel and judges to make recommendations the defendant’s peers,” she underscored. The jury unit is to courts nationwide. They have pulled teams of experts working very hard to ensure every phase of the process together to help courts solve problems. Chief Judge is well thought-through. As far as jury summonses, Chief Brown went on to explain the guidance provided by the Judge Brown espoused a general policy of flexibility. She AO on a four-phase process for reopening. assumes that the court will select jurors who physically come into the building. She raised concerns about virtual Phase one started off slowly. It was triggered by the jury selection, because of the inherent exclusion of certain lifting of the stay-at-home order. The court is currently demographics who do not have access to computers and closed to the public, and court employees are handling the difficulty of keeping jurors focused from a distance. most everything through teleconference. The court While “no one has solved the issue of the jury trial yet,” is preparing for the next phase by sourcing PPE for Chief Judge Brown made clear that the court will protect employees, as well as researching contact tracing. The plan the integrity of the process. requires tracing mechanisms so that the court can track down the path of the virus, should it enter the building. When asked whether the pandemic can be likened to The court also has a Facility Security Committee, made the situation the court faced after Hurricane Katrina, Chief up of the building’s tenants, which Chief Judge Brown Judge Brown responded in the negative: “This cannot be chairs. She is in constant communication with tenants likened to Katrina because this is global. It affects all of of the building—“we must move in continuity with our us, and at different rates in different locations. We cannot tenants and the other agencies in the building.” move too quickly, and we have to take so many factors into consideration. We also want to preserve all of the Phase two involves limited public access to the parts of our justice system that make it so good.” building, while phase three anticipates the beginning of jury trials. Upon the commencement of phase four, court operations will resume as they were pre-COVID. Chief

19 STATEMENT OF THE NEW ORLEANS CHAPTER OF THE FEDERAL BAR ASSOCIATION ON EQUAL JUSTICE

The tragic death of George Floyd has caused painful but necessary examination of what we as a Nation are doing to address racism and inequality. The New Orleans Chapter of the Federal Bar Association renews and vows to strengthen our commitment to full and equal access to the legal profession and the justice system, regardless of race, gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, disability, privilege, position in society, or any other unique attribute.

Our Constitution itself demonstrates that equal justice for all was not accomplished with our Nation’s founding; in many ways, it still eludes us. As a Chapter, our commitment to the Rule of Law is grounded in the conviction that the law allows us to stay peacefully connected to each other as citizens. When the law is not fulfilling that purpose, we must speak up, and we must offer leadership, guidance, and hope.

Our Constitution also demonstrates our capacity for progress and change. The belief that views and behavior can change is reflected in our Chapter’s educational programs, community outreach, and efforts to include and encourage participation from diverse segments of our bar. We must stand firm in that belief. We must listen to each other and work to elevate public discourse. We must play an active role in the process of developing reforms and effecting meaningful change, and we must do so in ways that are deliberate, dignified, and reflective of our overarching commitment to the Rule of Law and Equal Access to Justice.

Our Chapter prides itself on being a leader in innovation, cutting edge issues, and setting the cadence for overcoming challenges that face our community. Over the course of the next year, and beyond, the Chapter will employ a renewed focus on addressing these issues head-on. Among other initiatives, we will host programming focused on Civil Rights issues, endeavor to include diverse members in our panel discussions and other activities, and strive for more partnership with other organizations sharing similar goals.

Racism and acts of violence targeted against people of color must end. We encourage our members to remain engaged and to unequivocally reject all forms of intolerance, violence, and racism. We must work together to build a better future.

Board members with judicial and other governmental positions did not participate in the issuance of this statement. On March 21, 2020, the FBA National Council passed a motion to convert the FBA Membership structure to a calendar model. In doing so, all memberships -national, chapter, section, and division- will have a 10/1 effective date and a 9/30 expiration date.

WHAT THIS MEANS FOR MEMBERS A universal membership effective date makes it easy to remember when it’s time to renew. Whether it’s yourself, your colleague in the next office, or your fellow chapter members… all members will have the same renewal deadline.

Firms will have the ability to pay FBA membership renewals with a single payment; and attorneys can enjoy all the benefits of being an FBA member with the ease of the renewal payment converted into a once-a-year event.

For members of the New Orleans Chapter, you will continue to enjoy the great programming and CLE opportunities at no additional costs through December 31, 2020. Recently, the Executive Committee of the New Orleans Chapter voted to extend all New Orleans Chapter FBA CLEs at no cost to FBA members through December 31, 2020. With the Louisiana Supreme Court’s April 28, 2020 Order allowing Louisiana lawyers to satisfy all 12.5 mandatory MCLE credits through “self- study”, the New Orleans Chapter has already and will continue to offer web-based CLE programming. There are several CLEs scheduled and more coming in the Fall and Winter so please take advantage of the opportunity to renew your FBA membership in October.

Federal Bar Association FIRST CLASS MAIL New Orleans Chapter U.S. POSTAGE P A I D c/o Hon. Nannette Jolivette Brown PERMIT NO. 385 Chapter President NEW ORLEANS, LA 500 Poydras St., Room B-245 New Orleans, LA 70130 www.nofba.org Interested in becoming a member of the Federal Bar Association? Contact: Federal Bar Association 1220 North Fillmore St., Suite 444 Arlington, VA 22201 (571) 481-9100 Fax (571) 481-9090 www.fedbar.org or Membership Chair Brian Capitelli c/o Attorney Conference Center 500 Poydras Street, Room B-245 Hale Boggs Federal Building New Orleans, LA 70130 (504) 589-7990 Membership fee includes both national and chapter membership in the FBA. You can apply online at www.fedbar.org.

Editorial Board: Larry Centola, Colin Cambre, Scott Sternberg, Laura Cannon Please contact us at: [email protected]

SAVE THE DATE FOR UPCOMING EVENTS

Federal Practice CLE Series Annual Federal Defender & CJA Panel August 6, 13, 20 & 25, 2020 Training CLE Noon - 1 p.m. September 21, 23, & 25, 2020 Zoom 12:30 p.m. – 3:15 p.m. Zoom

Annual Meeting & Luncheon Malcolm Monroe Federal Practice Seminar August 27, 2020 CLE & Swearing In 1:30 p.m. - 2 p.m. TBD, will not occur until early 2021. Zoom