Spring Edition 2021 Vol. 30, No. 3 MESSAGE FROM THE PRESIDENT BY: STEVEN F. GRIFFITH, JR.

I sit here, just a day after our The New Orleans Chapter’s Justice Camp is a top notch April Board meeting, and I program that we offer to young people in New Orleans find myself throwing out my each summer, with a focus on the role of the judiciary, planned remarks regarding our and all its participants (attorneys, judges, jurors, etc.). upcoming Chapter program- The program has attained national recognition, and just ming (you should still attend last week, I was communicating with a Magistrate Judge these fabulous programs, and I in another court as that Court hopes to model its program will mention them later, but my after ours. In our program, we have speakers from our mind is now on other things). organization (i.e., people like you . . . .) that teach the kids the fundamentals of the legal system, including ca- Several months ago, our Board began a practice of in- reers within that system, and to develop basic advocacy viting some of our partners to attend and address our skills in a fun, interesting, and interactive format. So, monthly Board meetings about their ongoing activities, back to yesterday’s meeting. priorities, challenges for the year, and ways in which our Chapter could assist their efforts. We have heard from In yesterday’s meeting, Courtney talked about her ex- West Allen, the President of the National FBA organiza- perience at Justice Camp, how much she enjoyed it, and tion; Jim Hammerschmidt, the President of the FBA Bar then she explained how excited she was to be going to Foundation; and Camille Bryant, President of the Louis college next year. Specifically, she cited Justice Camp A. Martinet Society. But, this month, we heard from as one of the factors influencing her decision to study Cody Bourque, the International Baccalaureate Coordi- Criminal Justice and Political Science. Of course, the nator at the International High School of New Orleans Chapter cannot take full credit for her decision to pur- (“IHSNOLA”). sue her education in this way, but the fact that we may have influenced her decision-making at all, even in the The IHSNOLA is a charter school located in downtown slightest, makes the work we do as a Chapter all the more New Orleans, with a program encouraging “students to rewarding. think broadly, beyond the boundaries of their communi- ties, and to develop the intellectual, personal, emotional We’ll host our next Justice Camp this summer, and be- and social skills needed to live, learn and work in a global tween now and then, we’ll have a host of additional pro- economy.” Mr. Bourque explained the current offerings grams that you can attend for your own professional de- at the school, particularly given some of the recent chal- velopment. We take pride in the programming we offer, lenges with COVID-19. But, then, we were privileged to so do not hesitate to let us know if you have any ideas hear directly from a student that had participated in our Justice Camp. cont’d on page 2

Editorial Board: Larry Centola, Colin Cambre, Michael Finkelstein, Rachel Naquin MESSAGE FROM THE PRESIDENT (cont'd) or“There suggestions are moments we should our d consider for future sessions. Chapter, and look forward to seeing you at an upcoming And, in the meantime, thank you for your support of the event.

2021 USDC-EDLA WOMEN'S HISTORY MONTH CELEBRATION: "U.S. Supreme Court Justice Ruth Bader Ginsburg: Her Lasting Legacy" ORIGINALLY PUBLISHED BY THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

On March 23, 2021, the U.S. District Court for the Eastern District of Louisiana sponsored a Women’s History Month Celebration entitled, “U.S. Supreme Court Justice Ruth Bader Ginsburg: Her Lasting Legacy.” Dr. Sally Kenney, Ex- ecutive Director of Newcomb Institute, Newcomb College Endowed Chair Professor, and leading expert on women in the judiciary, served as keynote speaker. Dr. Kenney spoke about Justice Ginsburg’s career as a gender equity advocate as well as her tenure on the U.S. Supreme Court bench, and highlighted the justice’s approach to affecting change, an approach imbued with civility and long-range focus. The event was moderated by the Honorable Nannette Jolivette Brown, Chief U.S. District Judge for the U.S. District Court for the Eastern District of Louisiana, and co- sponsored by the following organizations: Association for Women Attorneys, Greater New Orleans Louis A. Martinet Legal Society, New Orleans Chapter of the Federal Bar Association, New Orleans Bar Association, Louisiana State Bar Association, U.S. Attorney’s Office for the Eastern District of Louisiana, Federal Public Defender’s Office for the Eastern District of Louisiana, and the U.S. Probation Office for the Eastern District of Louisiana. To view a video of the event, please select this link.

The New Orleans Chapter of the Federal Bar Association recognizes the contributions of members of the legal community every year at our Annual Meeting. We are currently accepting nominations for the President’s Award, the Jack Martzell Professionalism Award, and the Camille Gravel Pro-Bono/Public Service Award. Click the link below to get information on how to nominate and prior recipients. Submit nominations by 4:00 p.m. on June 11, 2021 to [email protected]. 2021 USDC-EDLA BILL OF RIGHTS ESSAY AND POSTER CONTESTS ORIGINALLY PUBLISHED BY THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

The U.S. District Court for the Eastern District of Louisiana recently hosted essay and poster contests to celebrate the Bill of Rights. High school students from across the Eastern District of Louisiana participated in the contests. U.S. District Judges, Barry Ashe and Wendy Vitter, U.S. Magistrate Judges, Janis van Meerveld, Dana Douglas, and Donna Currault, and Federal Bar Association members, Erin Arnold, Benjamin de Seingalt, Michael Dodson, Jessica Engler, and Gregory Grimsal, volunteered to judge the essay and poster entries. The winning essays and posters were announced at a Zoom event hosted by Chief U.S. District Judge, Nannette Jolivette Brown, and the event was attended by judges, attorney-facilitators, and participating students.

Essay Contest Winners: 1st Place: Meghan Drane, Mandeville High School, 12th grade, Printed on the next page. 2nd Place: Natalie Bou, Archbishop Chapelle High School, 12th grade, Essay 3rd Place: Mya Guy, St. James High School, 10th grade, Essay Hon. Mention: Abram Pounds, Ben’s Ford Christian School, 10th grade, Essay Hon. Mention: Jake Slaton, St. Thomas Aquinas Catholic School, 11th grade, Essay

Poster Contest Winners:

1st Place: Natalie Bou, 3rd Place: Gracie Babin, Archbishop Chapelle High School, Hammond High Magnet School, 12th grade 9th grade 2nd Place: Martha Rigney, Christ Episcopal School, 11th grade

Honorable Mention: Honorable Mention: Amber Fairley, Abigail Gillis, Varnado High School, Mandeville High 10th grade School, 12th grade

3 1ST PLACE ESSAY CONTEST WINNER MEGHAN DRANE, MANDEVILLE HIGH SCHOOL, 12TH GRADE

The right to marital privacy. The right to cyber privacy. The right to make your own health care decisions. Each of these personal liberties define our everyday life and have evolved alongside our great country. How can we be sure that these freedoms continue to be protected, seeing as they are not specifically enumerated in the Bill of Rights? How can we feel comfortable carrying on our family name to future generations that will be faced with unfathomable problems? The answer to both of these questions lies in a frequently forgotten amendment and the one that means the most to me- the Ninth Amendment.

In official terms, the Ninth Amendment ensures that explicitly stated coverage in the first amendments “shall not be construed to deny or disparage others retained by the people” (“Ninth Amendment”) and has since been clarified to ensure that citizens’ rights are not limited to the narrow constraints of ten clauses written hundreds of years ago. It has been used as support in numerous cases, including the landmark case Griswold vs. Connecticut. This case set the precedent that our rights as citizens can be maintained “without having to ground it in a specific constitutional amendment” (McBride). In layman’s terms, this means that Constitutional validation for policies does not have to be tied to a numbered amendment. If any given society in any given period of United States History decides that some- thing demands government protection, we can look to the Ninth Amendment to secure these protections. This is an invaluable contribution to our Constitution. Our founding fathers could not possibly have been granted the foresight to imagine a world in which people across the globe could be reached with the click of a button or where fatal illnesses have promising, yet experimental, treatments. Luckily, they did have the foresight to realize that America was never destined to be a static nation. It was sure to innovate and evolve. In this way, the Ninth Amendment is like the Elastic Clause of the Bill of Rights. Similar to how the framers hoped to give Congress the power to “pass all laws necessary and proper for carrying out the enumerated list of powers” (“Elastic Clause”), the Ninth Amendment ensures that citizens are granted rights that are necessary and proper for the highest enjoyment of life and liberty.

Because of its broad and elastic nature, I know I will never question whether or not I am protected by the Constitu- tion- whether or not something falls into one of the other amendments. The Ninth Amendment covers citizens on all angles. While blatant protections of “religion, expression, assembly, [speech], and the right to petition” (“First Amendment”) and the right to bear arms allows me to feel secure in our country on a day to day basis, I recognize that other problems may arise where my rights may be called into question. Should this situation ever arise, I know I can call on the Ninth Amendment to remind those against me that I am protected beyond what the nearly 500 (Madison) words in the Bill of Rights can convey.

Works Cited

“Elastic Clause.” Dictionary.com, Dictionary.com, www.dictionary.com/browse/elastic-clause.

“First Amendment.” Legal Information Institute, Cornell University, www.law.cornell.edu/constitution/first_amendment.

Madison, James. “The Bill of Rights.” Lit2Go ETC, etc.usf.edu/lit2go/133/historic-american- documents/4960/the-united-states-bill-of-rights/.

McBride, Alex. “Griswold v. Connecticut (1965).” Thirteen- Media With Impact, PBS, www.thirteen.org/wnet/supremecourt/rights/landmark_griswold.html.

“Ninth Amendment.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/constitution/ninth_amendment. 2021 AFRICAN AMERICAN HISTORY MONTH CELEBRATION ORIGINALLY PUBLISHED BY THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA.

On February 26, 2021, the U.S. District Court for the Eastern District of Louisiana, in partnership with the Greater New Orleans Louis A. Martinet Legal Society, Association for Women Attorneys, Louisiana State Bar Association, New Orleans Bar Association, Federal Bar Association, U.S. Attorney’s Office (EDLA), Federal Public Defender’s Office (EDLA), and U.S. Probation Office (EDLA), hosted a virtual African American History Month Celebration entitled, “The History & Traditions of Black Sororities and Fraternities.” The Honorable Nannette Jolivette Brown, Chief U.S. District Judge for the Eastern District, made welcoming remarks. The Honorable Ivan L.R. Lemelle, Se- nior U.S. District Judge for the Eastern District, discussed the Rev. Dr. Martin Luther King, Jr., Dr. King’s member- ship and service with Alpha Phi Alpha, and his enduring legacy. The Honorable Dana M. Douglas, U.S. Magistrate Judge for the Eastern District, provided an overview of the history of African American sororities and fraternities. Camille Bryant, President of the Greater New Orleans Louis A. Martinet Legal Society, moderated the event. Chief Judge Brown, Judge Lemelle, Judge Douglas, Camille Bryant, and the following audience members shared fond memories of the positive effect that African American sororities and fraternities had on their lives as well as the com- munity at-large: Kenya Walton, Special Offender Specialist (USPO-EDLA); Rocquel Milsap, Human Resources Ad- ministrator (USDC-EDLA); Duane Evans, Interim U.S. Attorney (EDLA); Theodore Carter, Assistant U.S. Attorney (EDLA); Brittany Reed, Assistant U.S. Attorney (EDLA); and Tamia Gordon, Chief Deputy Clerk (USDC-EDLA).

TIPS FROM THE PROS – BUILDING A SUCCESSFUL CAREER DURING THE CHALLENGING TIMES OF A GLOBAL PANDEMIC BY: J. CHRISTOPHER ZAINEY JR., THE LAMBERT FIRM, PLC The FBA YLD committee hosted an insightful and thought-provoking panel entitled Tips from the Pros – Building a Successful Career During the Challenging Times of a Global Pandemic on February 23, 2021. The event was cre- ated by FBA YLD Board Member Chris Zainey, moderated by FBA YLD Board Member Chloé Chetta, and included a round table discussion with an esteemed panel of practitioners and judges including the Honorable Joe Giarrusso, and FBA Board Members the Honorable Dana Douglas, Brian Capitelli and Larry Centola. Law students (and some young lawyers alike) from around the state received valuable tips, including some encouraging “words of wisdom” from our esteemed panel including the following: (1) Do not be afraid to reach out to lawyers currently in the practice! Lawyering is very relationship intensive, and you can start forming good relationships with people NOW. Call or email a leader in the field you are interested in and ask if they have time to grab an outdoor coffee if they are comfort- able with that, or just chat on the phone and hear from someone whose career you think you would like to emulate – what does their day to day look like, what do they love/dislike about their practice, etc. (2) Follow your passions and work hard/put your best foot forward in whatever it is you are doing. Do not try to do everything/be everyone – target your focus on the things you actually care about and your passion and intellect will shine through. (3) Do not forget about intergenerational communication issues. Most of us are still primarily “virtual” right now, and email is lessening the amount of in person or over the phone inter- actions. People are missing out on that face-to-face opportunity to talk through things, so again, do not be afraid to pick up the phone or sched- José Cot spoke about FBA membership before Hon. Joseph I. Giarusso III, ule a Zoom if you cannot get together Brian Capitelli, Chloé Chetta, Larry Centola and Hon. Dana M. Douglas presented in person. Tips from the Pros – Building a Successful Career During the Challenging Times of a Global Pandemic. 5 JUDICIAL INDEPENDENCE IN THE MODERN ERA BY: STEPHEN MYERS, IRWIN FRITCHIE URQHUART & MOORE LLC After delays caused by the pandemic, on February 25th, the CLE Programming Committee was pleased to host a CLE on Judicial Independence in the Modern Era, and thrilled to welcome Professor Charles Gardner Geyh to present on this topic of particular relevance at this moment in history. Professor Geyh, Distinguished Professor and John F. Kimberling Professor of Law at the Maurer School of Law at Indiana University, has published and presented extensively on the topic, including: Who Is to Judge: Judicial Elec- tions, Judicial Appointments, and the Perennial Debate Over Judicial Selection in America (Oxford University Press 2019); Courting Peril: The Political Transformation of the American Judiciary (Oxford University Press, 2015); and When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (University of Michigan Press 2006). He also previously served as an expert witness in Senate impeachment trials involving federal judges, as well as on four ABA commissions, including the Commission on the Separation of Powers and Judicial Indepen- dence. To begin the CLE, Professor Geyh framed the issue of judicial independence as the ability of courts and judges to perform their duties free of influence or control by other branches of government or shifting popular opinion, which he explained has been a defining feature of the American Constitutional landscape for centuries. But, he further ex- plained that the architecture of the principle in the United States has not been fully explained and has often been mis- understood. The CLE was followed by a truly fascinating discussion of how the principle of judicial independence has developed and changed throughout history, including how attitudes toward the concept have shifted among those outside the legal profession. The CLE concluded with a discussion of current threats to the concept of Judicial Independence, what steps are avail- able to members of the bar to prevent further erosion of the concept, and how dichotomy between judicial elections and judicial appointments may influence the public’s perception of the principle. The CLE Programming Committee cannot thank Professor Geyh enough for his time and commitment to bring this program to our members, notwithstanding the rescheduling and necessity of shifting to a Zoom format due to the pandemic. In the end, the program exceeded already high expectations, which was confirmed in the feedback from our members after the CLE. Special thanks also are due to José Cot, who assisted in the planning of this CLE and has been a leader and advocate for programming on this important topic for our FBA Chapter members. The CLE Plan- ning Committee already is exploring additional programming to continue the dialogue about this important subject.

Professor Charles Gardner Geyh presented the Judicial Independence in the Modern Era CLE. He is pictured here with the CLE co-chairs, Stephen Myers and José Cot. LUNCH WITH THE COURT LUNCH WITH THE HON. CARL J. BARBIER BY: M. REBECCA COOPER, THE KULLMAN FIRM On February 24, FBA members met virtually with Hon. Carl J. Barbier as part of the New Orleans Chapter’s ongoing Lunch with the Court series. Judge Barbier spoke about the challenges facing the court in moving the court’s docket forward as jury trials have been suspended since March 2020 due to the ongoing COVID-19 pandemic. Judge Bar- bier did note that he has recently been holding bench trials, both in person and via Zoom. Judge Barbier additionally discussed the planning and preparation that the court is doing in anticipation of restarting jury trials, including poten- tially using multiple courtrooms in order to adequately spread out jury members, witnesses, and spectators. Judge Barbier reflected on his time overseeing the BP oil spill multi-district litigation and urged young plaintiff lawyers who are interested in participating in MDLs to volunteer to work on subcommittees to gain more ex- perience in this area. Attendees were also interested to learn about some of Judge Barbier’s hobbies, including exercising on a daily basis and participating in a book Judge Carl J. Barbier, United States District Court-EDLA, and club with other judges in the Eastern District. February Lunch with the Court attendees engage through Zoom.

LUNCH WITH THE HON. JANE TRICHE MILAZZO BY: KRISTEN AMOND, MILLS & ARMOND LLP Judge Jane Triche Milazzo hosted FBA members in a virtual Lunch with the Court on March 10. Attendees enjoyed hearing about Judge Milazzo’s path to the federal bench, which included being an elementary school teacher, paralegal, attorney in private practice, and the first woman elected judge in the 23rd Judicial District. Many FBA members were intrigued to learn about how Judge Milazzo had gone back to attend law school after having already been out in the working world, and even more impressed to hear about how she went to law school while balancing a family life. The conversation then shifted to an issue that is front of mind for all lawyers—virtual court appearances and the resumption of jury trials. Judge Milazzo emphasized the importance of attorneys maintaining reverence during Zoom hearings as if they were in the court- room. She then fielded a host of questions about the future of jury trials, includ- ing the logistical and safety challenges of selecting a jury and the constitutional implications relating to criminal defendants’ rights to a speedy and fair trial. The YLD thanks Judge Mi- lazzo for her always making time for young lawyers.

Judge Jane Triche Milazzo, United States District Court-EDLA, hosted a March Lunch with the Court via Zoom. 7 LUNCH WITH THE COURT (cont'd) LUNCH WITH THE HON. CARL E. STEWART BY: KRISTEN AMOND, MILLS & AMOND LLP

Judge Carl E. Stewart joined FBA young lawyers in a virtual Lunch with the Court on April 13. Judge Stewart told the story of his path to the federal bench and the effects of the Civil Rights Movement on his trajectory. Before join- ing the Fifth Circuit, Judge Stewart was a JAG officer who prepared wills and powers of attorney for veterans of the Vietnam War, an AUSA, a private practitioner, a trial judge in the 1st Judicial District in Caddo Parish, and a judge on the Louisiana Second Circuit Court of Appeal.

Judge Stewart has always had a special connection with New Orleans, where he attended Dillard University and Loyola Law School. During law school, he worked nights at an insurance company and was a member of Loyola’s ROTC unit (he even wore his green ROTC uniform to evidence class!). Judge Stewart remembers vividly how hard he studied for the Louisiana bar exam—he said he would choose the gauntlet of the Senate Judiciary Committee over having to endure Code III of the Louisiana Bar Exam any day.

Judge Stewart has served on the Fifth Circuit for almost 28 years, 17 of which he was the only African American judge. He was only the 18th person of color to serve on any appellate circuit. Through this lens, Judge Stewart takes seriously his role to uphold the integrity of the judicial system and application of the rule of law. The best part of the job, he says, has been mentoring (and learning from) the 94 law clerks that he has had over the years.

In addition to serving as the Chief Judge of the Fifth Circuit until recently, Judge Stewart served as the President of the American Inns of Court and the Strategic Planning Coordinator of the Executive Committee of the Judicial Confer- ence of the United States. In those roles and others, Judge Stewart has made it his mission to promote professionalism, ethics, and civility in the legal profession. Judge Stewart emphasized that lawyers have a unique ability to identify, analyze, and resolve problems facing their communities. He reminded everyone that being an attorney is a service; our work should offer added value to those around us.

The Young Lawyers Division greatly appreciates Judge Stewart for sharing his time and wisdom. We all look forward to having him back in New Orleans soon.

Judge Carl E. Stewart, U.S. Court of Appeals for the Fifth Circuit, is pictured with the April Lunch with the Court attendees on Zoom. 2021 Justice Camp

The New Orleans Chapter of the Federal Bar Association (NOFBA) has taken the concept of summer camp into the federal courthouse, imparting civics education and advocacy skills that prepare students for college, career, and civic engagement. We invite incoming 9th and 10th graders to attend! The 2021 NOFBA Justice Camp will be held virtually July 12-16, 2021 10:30am- 12pm CST via Zoom. The program, now in its fourth year, encourages 9th and 10th graders to learn about the legal system, including careers within that system, and to develop basic advocacy skills in a fun, interesting, and interactive format. Sessions will include overviews of the federal court system, safety on the Internet, implicit bias in jury trials, and the rights of privacy, to assistance of counsel, free speech, and other constitutional rights. The topics presented during the virtual Justice Camp are components of the typical full-length camp, which the NOFBA plans to reinstitute in the summer of 2022. Details and registration are available online. July 12-16, 2021, 10:30am- 12pm CST Zoom To ensure everyone has equal opportunity to participate in NOFBA’s Justice Camp, there is no cost to attend.

Please complete the registration on http://nofba.org/resources/justice-camp/. Contact Amanda Kaiser, Executive Director, at (504) 589-7990 or email [email protected] with any questions.

9 REQUEST FOR VOLUNTEER CLE SPEAKERS

The FBA is seeking volunteers for CLE presenters. The Chapter holds CLEs and programs throughout the year to explore the latest legal developments while bringing together members of the bench and bar. Topics may include issues of federal jurisdiction and procedure, substantive practice areas or discovery issues across both criminal and civil law, and ethics, professionalism, or law practice management. If you have an idea for a CLE or program, please email us at [email protected] and include a brief description of your CLE or program, any prepared materials (or a description of materials you plan to prepare), the names of your proposed volunteer presenters, and your scheduling availability to host the proposed event. The Chapter’s Board of Directors will review submissions on a rolling basis. The Chapter adheres to a diversity and inclusion policy encouraging programs of two or three presenters to have at least one presenter reflecting diversity of race, ethnicity, gender, sexual orientation, or ability. Programs of four or five presenters should have at least two diverse presenters. Programs of six or seven presenters should have at least three diverse presenters. And with programs of eight or more presenters, at least half should be diverse.

NOT ANOTHER ZOOM MEETING!: AN EVENING OF YOGA BY: RACHEL NAQUIN, GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, L.L.C. On April 1, 2021, the Younger Lawyers Division of the New Orleans Chapter of the Federal Bar Association, along with the Greater New Orleans Louis A. Martinet Legal Society, Inc., hosted a free virtual yoga session as a way to give back to their members for their continued support during what has been an incredibly difficult year. The class was led by Elizabeth Sconzert, partner at Blue Williams, L.L.P., FBA Board member, and co-founder of Bayou Yoga, who provided attendees with forty-five minutes of yoga as well as insight for lawyers on managing stress dur- ing this unusual time. Ms. Sconzert made sure to include modifications for some of the more challenging poses, so attendees of all skill lev- els could participate. Those who at- tended the class also received a spe- cial discount code for future classes, either virtual or in-person, at Bayou Yoga. Both the Younger Lawyers Division and the Martinet Society are very grateful to Ms. Sconzert for her time offering a yoga class that was enjoyed by all. Elizabeth Sconzert leads a virtual yoga session for Federal Bar Association New Orleans Chapter and The Greater New Orleans Louis A. Martinet Legal Society members.

Love the One You’re With: How to Earn—and Keep!—Good Business Clients

May 26, 2021 Noon –1:00 pm

Join three senior inhouse counsel as they share their insights about what makes good outside counsel that clients can’t resist relying on again and again! On Wednesday, May 26, 2021 from 12:00-1:00 pm join panelists Andrea Mahady Price (Walmart), Brittany Salup (Chevron), and Kristopher Zinchiak (Chiquita Brands International, Inc.) for a CLE presentation on Zoom. Harrison Golden (Phelps Dunbar LLP) and Rosalie Haug (Chaffe McCall L.L.P.) will moderate as panelists discuss understanding your inhouse clients’ schedules and workload; how to present information in their preferred medium and format to get prompt responses on time, every time; and ways younger lawyers can prove themselves as valuable members of an outside counsel team. Registration is required. FBA Members enjoy this series for free.

Love the One You’re With: How to Earn—and Keep!—Good Business Clients CLE Registration Name: ______Firm/Organization: ______Telephone: ______Email: ______

FBA Member Non-Member Gov’t/Public CLE Registration $50FREE $30 $15 Total $ ______To register online, please go to www.nofba.org. Otherwise, please complete the above registration and remit payment to the Federal Bar Association, New Orleans Chapter, 500 Poydras Street, Rm. B-245, New Orleans, LA 70130. Cancellations must be received in writing two days in advance in order to receive a refund. Please contact Amanda Kaiser at (504) 589- 7990 or [email protected] with questions.

11 CAROL MICHEL, CLERK OF COURT, U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BY: LARRY CENTOLA, MARTZELL, BICKFORD & CENTOLA

On January 6, 2020, the United States District Court for the Eastern District of Louisiana appointed Carol L. Michel as Clerk of Court, succeeding Wil- liam W. Blevins. Mr. Blevins, who is from Richmond, Virginia, served as Clerk of Court in the Eastern District of Louisiana from May 2013 until Janu- ary 2020. He accepted a position as the Chief Deputy of Operations for the United States District Court for the Eastern District of Virginia in Richmond. Ms. Michel has spent most of her professional life at the Eastern District of Louisiana, and our chapter is delighted to spotlight her in this issue.

EARLY LIFE

Ms. Michel has lived in the metropolitan New Orleans area her entire life. Her parents were the late Edward and Irma Loupe. Edward was a home- builder on the Westbank of New Orleans from the 1950s to the 1970s. He, his brother, and sister grew up in old Gretna. Irma Lorio Loupe was raised in Marrero, Louisiana. Her parents met while traveling back and forth to New Orleans from the Westbank on the ferry.

Irma attended St. Mary of the Pines High School in Chatawa, Mississippi, as a boarding student on a work scholarship. That experience allowed her to meet many other girls from throughout Louisiana and from Central America. She maintained lifelong friendships with many of her high school friends Clerk of Court Carol L. Michel, United States and their families. Irma went on to work as a secretary for Standard Fruit District Court for the Eastern District of Louisiana Company and Gulf Oil Company in New Orleans until the birth of her old- est child. She was an excellent writer and speller, loved books and learning, and ensured that all her children read as many books as possible. Irma often brought her children to the public library, and participation in the Summer Reading Program every year at the local library was a family ritual. Later in life, after her children were grown and had received college educations, Irma attended Delgado Com- munity College, an opportunity she did not have when she was younger, and earned a degree. In the days before smart phones, if her children asked her how to spell a word, Irma forced the child to look up the spelling in the dictionary.

Ms. Michel grew up in a home built by her father in Marrero, Louisiana with her sister, Diane, and her brother, Davis. Ms. Mi- chel attended elementary school at Visitation of Our Lady Catholic School in Marrero, Louisiana beginning in First Grade in the first year that the school opened. Ms. Michel’s parents loved all things New Orleans and Louisiana. Ms. Michel has fond fam- ily memories of attending Carnival parades, Audubon Park, City Park, West End and Lakeshore Drive, beignets in the French Quarter, fishing with her father at his camp, and visits to historic sites throughout Louisiana and the South.

Ms. Michel’s parents were her role models. They were very hardworking and dedicated to education. They instilled a lifelong love of learning in their children. They ran a small business and taught the children the value of personal achievement, excelling in schoolwork, appreciating the many cultural opportunities around, and the importance of close family and friends. Ms. Michel and her siblings were the first generation of the family to receive college educations.

Ms. Michel graduated from Immaculata High School in Marrero and went on to Southeastern Louisiana University on an aca- demic scholarship. Her two siblings also attended Southeastern Louisiana University on academic scholarships. Her sister later received a Master’s degree in Journalism and her brother earned an M.B.A. After Ms. Michel obtained a Bachelor of Arts degree in History from SLU, she received her Juris Doctor from Tulane University School of Law.

LEGAL CAREER

While in her third year at Tulane Law School, Ms. Michel was fortunate to extern for then Magistrate Judge Marcel Livaudais, Jr. at the Eastern District of Louisiana. Following law school graduation and after she took the Louisiana Bar Examination, Judge Livaudais was confirmed as a U.S. District Judge for the Eastern District of Louisiana. Ms. Michel was one of Judge Livaudais’ cont’d on page 13 CAROL MICHEL, CLERK OF COURT, U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) first law clerks. Ms. Michel’s initial term as a Judge Livaudais her amazing work ethic, judgment, brilliance, and le- law clerk lasted a very eventful two and a half years as Judge gal acumen—and quite frankly is probably the only Livaudais presided over the first and second criminal trials of person I can think of who could have assumed that Governor Edwin Edwards during that time. The first trial end- incredibly demanding position— and who did it vir- ed in mistrial with a deadlocked jury, and the second resulted tually seamlessly. in an acquittal. Knowing he would be witnessing history in the making, Ms. Michel’s father would take the bus downtown The best part about Carol, though— beyond her in- and sit in the gallery during the Edwards trials. credible professional skills, talents and intellect—has always been her ability to lead and inspire the people Subsequent to that initial two and half years with Judge Livau- around her through inspiration—from her sheer abil- dais, Ms. Michel was an associate attorney for the Murray Law ity, ethical standards, work ethic and most of all her Firm, working with Stephen B. Murray and Patricia R. Murray. humility and kindness...not to mention the fact that Judge Patricia Murray was elected to the Louisiana Fourth Cir- she’s also managed to be among the best moms I’ve cuit Court of Appeals where she served for over fifteen years. ever seen.

Ms. Michel returned to the Eastern District of Louisiana to None of us knows how she does it all...but she simply serve as one of the first “career” law clerks for Judge Livau- is the best. I don’t know anyone who wouldn’t gladly dais. Her second stint with Judge Livaudais lasted from 1987 follow her into any battle or challenge. until 2001. In 2001, Ms. Michel began clerking for then Mag- istrate Judge Lance Africk. During her initial year clerking Working with Carol is just a privilege and a joy for for Magistrate Judge Africk, he was confirmed as a District everyone lucky enough to get that opportunity." Judge for the Eastern District of Louisiana, giving Ms. Michel the distinct honor of having clerked for two magistrate judges In 2013, Ms. Michel left the U.S. Attorney’s Office and was who became judges on the District Court during the term of hired as the Chief Deputy Clerk for the Eastern District of her clerkship. Ms. Michel remained as a law clerk for Judge Louisiana to Clerk of Court Blevins, and on January 6, 2020, Africk until 2004. Ms. Michel was appointed Clerk of Court.

In 2004, Ms. Michel became an Assistant U.S. Attorney un- CHANGES TO THE PRACTICE OF LAW der then U.S. Attorney Jim Letten. Ms. Michel worked in the It is not surprising that, given her years of service and breadth Appellate Division under then Assistant U.S. Attorney/now of service, Ms. Michel noted that technology has brought sig- United States Circuit Judge of the United States Court of Ap- nificant changes to her job and practice. When she first started peals for the Fifth Circuit Stephen Higginson. Mr. Letten had working in federal court in the mid-1980s, pleadings were the following to say about Ms. Michel:

"Having spent some 30 years with the Department of Justice, for me the most extraordinary part of that journey was having the privilege of working with some of the most amazing people imaginable.

Working closely with Carol Michel gave me the op- portunity to get to know one of the finest attorneys, leaders, and human beings I’ve ever encountered.

Imagine that you’re the U.S. Attorney and your of- fice’s incomparable chief of appeals has just been nominated and confirmed as a United States Fifth Circuit Court of Appeals Judge… And that person is the Honorable Stephen Higginson. Now you’ve got to find someone within your ranks to somehow take over that critical position. Impossible? Should have Carol Michel (far right) has long been an engaged been. New Orleans Chapter FBA member. Pictured here at the 2019 Federal Judges' Reception with Eva Dossier, But for us in the U. S. Attorney’s Office, and for W. Raley Alford III, Ashley L. Belleau, and John D'Avello. me personally, the decision was not difficult. Carol Michel had quietly but daily over years demonstrated cont’d on page 14 13 CAROL MICHEL, CLERK OF COURT, U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) filed in person at the Intake desk at the Clerk’s Office, unless ADVICE TO LAWYERS WHO PRACTICE IN they were mailed in. Lawyers regularly visited the Clerk’s THE EDLA Office and the Courthouse, with nearly all contested motions requiring a personal appearance on motion day. The advent of Ms. Michel cautions that while lawyers work in an adversary electronic case filing and case records have revolutionized the system, they should never engage in personal attacks on other practice of law, allowing remote court access to court records lawyers when contesting their arguments or presenting their throughout the country and allowing remote filing of plead- case. Ms. Michel stated: ings and documents 24 hours per day, 7 days per week. This technology has afforded much greater access to the courts, es- “We can all respect that lawyers engaged in litigation pecially with the recent post-COVID-19 hearings being con- have a job to do and must provide zealous represen- ducted by Zoom. tation yet engaging in personal attacks will not help you gain traction in your case. You will be remem- When Ms. Michel first became a federal court law clerk, there bered for your character as a lawyer and for how you were only “memory” typewriters and rudimentary personal treated other lawyers and litigants throughout your word processors. In those days, completing the initial set of career. jury instructions during the trial and then making all changes to the jury instructions after the jury charge conference (often With respect to the Clerk’s Office, we are here to pro- held near the end of the trial and shortly before oral arguments, vide service to you and to assist the judges in their so that all changes were ready after closing arguments con- mission to adjudicate disputes and provide justice. cluded) provided many anxious moments. Ms. Michel learned We care about performing our duties to the best of to only have one specific charge per page, leaving most of the our abilities and we do want to help you navigate the page blank for quick insertion and removal without changing system. We cannot provide legal advice (we cannot the other pages, so that they could be quickly renumbered and tell you how we think the judge might rule on your copied. The courtroom deputy would often come out of the motion), but we do want to assist you.” courtroom to give updates on the progress of the trial if she COURT FAMILY was working on a set of jury instructions and the trial was pro- gressing much more rapidly than anticipated. Ms. Michel’s children share her love for New Orleans that her parents nurtured in her. Her son lives with her on the West- bank, and her daughter lives on the Eastbank in Old Jefferson. In addition to her two children with whom she is very close, Ms. Michel is an integral part of the court family. Ms. Michel truly feels part of the court family, and each time she walks through the doors of the Eastern District of Louisiana, it feels like home.

Carol Michel and Chief Judge Nannette Jolivette Brown at a reception celebrating Carol's appointment as Carol Michel pictured with her daughter Lauren Clerk of Court. Michel (left) and son Alex Michel (right). NEW MEMBERS The Federal Bar Association welcomes its new members:

Ms. Whitney M. Antoine Mr. Jimmie Curtis Herring, Jr. Ms. Surekha Naidoo Barrasso Usdin Kupperman Freeman Loyola University New Orleans Mr. Patrick Isacks & Sarver, L.L.C. School of Law King & Jurgens, L.L.C. Mr. Taylor Mark Bacques Mr. William Eric Newman Mrs. Cherish Kenner-Creecy Pusateri, Johnston, Guillot & Louisiana Supreme Court Ms. Caitlin Newswanger Greenbaum, LLC Southeast Louisiana Legal Services Mr. David Kleinschmidt, Jr. Mr. Trey K. Bartholomew Womac Law Firm Ms. Jordan Burgess Nixon Jones Walker LLP Forman Watkins & Krutz LLP Mr. Aaron E. Koenck Ms. Bayle Marie Beerman Lewis Brisbois Bisgaard & Smith LLP Ms. Paige Patrick Lobman, Carnahan, Batt, Angelle Tulane University School of Law & Nader Ms. Sara B. Kuebel Jones Walker LLP Mr. Connor Peth Ms. Elise Benezech Irwin Fritchie Urquhart & Moore, LLC Sher Garner Cahill Richter Klein Ms. Hannah Neomie Lafrance & Hilbert, L.L.C. Krebs Farley & Dry, PLLC Ms. Catherine Schroeder U.S. District Court, Eastern District Mr. Joseph Brogdon Mr. Jordan LeBlanc of Louisiana Favret Carriere Cronvich, LLC Ms. Alexa Candelora Mr. Daniel E. Schwank Breazeale, Sachse & Wilson, L.L.P. Mr. Grant Leger Degan, Blanchard & Nash Adams and Reese LLP Mr. Curtis J. Case Ms. Delaney Patrice Shea Sher Garner Cahill Richter Klein Mr. Tyler S. Loga Law Office of Warren Chip Forstall & Hilbert, L.L.C. Pandit Law Mr. David Khoury Smith Mr. Jared B. Civello Mr. William Parker Logan The Moeller Firm Womac Law Firm Ms. Taylor Lombardo Ms. Taylor L. Somerville Mr. John Paul D’Avello Mercer Law Firm, LLC Melchiode Marks King LLC Stanley, Reuter, Ross, Thornton & Alford, L.L.C. Ms. Tiyanna Danielle Lords Ms. Trisha Rae Speeg Ricci Partners LLC Ms. Alexa Jeigh Daigle Mr. Michael W. Maldonado Becker & Hebert, LLC Staines, Eppling & Kenney, LLC Ms. Mary K. Taliancich Hair Shunnarah Trial Attorneys Ms. Lisa M. Diaz Ms. Laura Marcantel Egenberg, APLC Hon. Eric Marsteller Mr. Patrick A. Talley III Riess LeMieux Ms. Jasmine Englert U.S. Department of Justice, Lobman, Carnahan, Batt, Angelle Executive Office for Immigration Ms. Tyrianne Varnado & Nader Review DeRouen Law Firm Mr. Michael S. Giardina Mr. Harrison Marc Martin Ms. Taylor Delrie Waxley Cannon & Livermore LLC Phelps Dunbar, LLP Forman Watkins & Krutz LLP Mr. Morgan Gonzales Mr. Fielding Clark Matkins Ms. Jennifer Webre Pusateri, Johnston, Guillot and Bianca Law Firm Southeast Louisiana Legal Services Greenbaum, LLC Mr. Steven Mauterer Ms. Meredith N. Will Ms. Gillian Griffin Blue Williams, LLP Duplass, Zwain, Bourgeois, Pfister, The Kullman Firm Ms. Caroline Virginia McCaffrey Weinstock & Bogart, APLC Mr. John Charles Halfacre Jones Walker LLP Mr. Jordan A. Womac Womac Law Firm Ms. Katherine Walton Halliday Ms. Rachel Falgout Moody Scialdone Law Firm, PLLC Jones Walker LLP

If you would like to become a member of the FBA, or know someone who would like to become a member, please call José Cot, Membership Chair, at (504) 524-5353, or Amanda Kaiser, Executive Director, at (504) 589-7990 for more information. 15 CLERK’S CORNER U.S. DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA

BY: CAROL MICHEL, CLERK OF COURT

On March 30, 2020, Chief Judge Brown issued General Order 20-4 authorizing, pursuant to the CARES Act (Coro- navirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, 124 Stat. 281), the use of video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, in the Eastern District of Louisiana for several criminal proceedings, including detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, pretrial, probation and supervised release revocation proceedings, Rule 40 proceedings, mis- demeanor pleas and sentencings, and felony pleas and sentencings under Rule 32, upon a finding by the presiding judge that the plea or sentencing in a particular case cannot be further delayed without serious harm to the interests of justice. Chief Judge Brown has subsequently extended the CARES Act authorization through General Orders 20-8, 20-11, 20- 14, and 21-3, with the authorization currently in effect until June 15, 2021. (All of these General Orders are posted on the court’s website at www.laed.uscourts.gov). More than one year has elapsed since the first CARES Act order by Chief Judge Brown and during that time, many court proceedings have taken place through the use of video teleconferencing technology. Adjusting to court proceed- ings held by video teleconferencing means has mostly been smooth, but even after a year, some common-sense advice might improve the process. Clerk’s office employees, including case managers/courtroom deputies, court reporters, and IT staff, who have participated in and assisted judges during remote court proceedings held by video teleconferencing have relayed a number of experiences, best practices, worst practices, friendly reminders, tips, and advice about attend- ing and participating in court proceedings held by videoconference.

Best Practices, Reminders, and Advice When Participating in Court Proceedings by Video Teleconference

• Find a quiet, interior room with a closed door in which to participate. • If you are participating from home, please let others present in your home know that you will be in a court pro- ceeding so that they do not interrupt you, walk through the room, or try to engage in conversation with you. • Ensure that dogs, cats, and other pets do not wander past the camera. While other participants may be fond of pets, remember at all times that you are participating in a court proceeding and not a casual video phone call. • Do not participate while driving or riding in a vehicle, operating machinery, sitting outside on your patio with outside background noise, sitting in a hotel lobby, or engaging in some other activity not related to the court proceeding. • Do not text, constantly check, or fiddle with your phone. • Try to minimize any visual distractions or sounds that may interfere with the proceeding, such as audible televi- sion noises, car horns, phones ringing, and loud household sounds. Check the background that will be displayed onscreen and consider whether there is visible artwork on camera that might raise eyebrows and create a distrac- tion. Do not shuffle papers, click pens, or tap near the microphone. • Always dress in professional attire as if you are attending a court proceeding—because you are. Do not wear Hawaiian shirts, sports shirts, shirts without ties, sports attire, logo tee-shirts, or any clothing you would not wear to court. • Be sure you are fully dressed from head to toe as others may be able to see that you are not wearing appropriate clothing from the waist down.

cont’d on page 17 CLERK’S CORNER – U.S. DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA (cont'd)

• Appropriate dress applies not only to the attorney attending the hearing, but also to the witness and party. If wearing a baseball cap in court when appearing in person would not be allowed, it will not be allowed in a remote proceeding either. • Some counsel appear far too relaxed on screen, e.g., as if they are at a ball game or at the beach instead of par- ticipating in a court proceeding. • On the day of the hearing, log in early—at least 10 to 15 minutes prior to the scheduled starting time. Do not wait until the starting time to log in as there may be technical difficulties that will delay the proceeding. Many proceedings are scheduled back-to-back, so one delay may lead to multiple delays. Being late for any court pro- ceeding is never a good idea. • Be prepared with the necessary documents or papers in front of you. • Attorneys should meet with their clients in advance so that the proceeding can take place on time. If documents should be signed, have them signed in advance of the hearing. Attorneys should avoid requesting that they and their clients be sent to a breakout room just as the proceeding is beginning. • Familiarize yourself with Zoom or the videoconferencing application being used. Learn how to mute and unmute your microphone, how to start and stop the video, how to switch to gallery view and back to speaker view, and how to accept breakout requests. • If you are unfamiliar with the videoconferencing equipment, please test your equipment in advance and request a test run-through of the application with the case manager/courtroom deputy. • A test run through will often reveal unforeseen problems, such as a very slow internet connection from a home or home office, constant buffering, and pop-up blockers that interfere with the proceeding. Scheduling a test run from the location and with the computer that will be used and checking internet speeds are encouraged. • Requesting and attending a mock run-through with the case manager is essential for bench trials or other hearings during which evidence will be presented. • The attorney and witness should be fairly close to the camera and should face the camera directly so that they can be seen clearly and so that their entire faces, and not just foreheads or mouths, are on the screen. • Be aware of the camera angle relative to your face. Avoid positioning the camera so that it is below your nose (i.e., “the nostril shot”). • Do maintain professional decorum and control your facial expressions. Facial expressions are easily discern- ible during a video teleconference. Eye rolling, throwing your hands up, and head shaking are more obvious on video. • Do look at the judge when the judge is speaking. • When using a portable device, such as an iPad, iPhone, or android phone, place it on a flat surface, elevate it with books or other objects, and make sure it is at a good camera angle. • Do not hold your device in your hand and walk around or move the device around during the proceeding. This can cause others to have a “Zoom headache” and is highly distracting. • Most have heard humorous media reports of a lawyer in a remote court proceeding whose filter made him appear as a cat on screen. Consider whether appearing with a non-legal type of background filter is a good idea; for example, is it appropriate to appear in a court proceeding with backgrounds such as tropical islands, the Golden Gate Bridge, sports teams, famous buildings, etc.? Be sure to know how to remove the background filter if you are requested to do so. • Check the volume on your device—make sure it is not too low and not too high or set on the maximum setting as this will likely cause reverb, feedback and echoing when others are speaking.

cont’d on page 18

17 CLERK’S CORNER – U.S. DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA (cont'd)

• While many participants may only need to know the gist of the proceedings, the Official Court Reporter must make a record of the proceeding and must hear every word spoken. In a courtroom, court reporters can easily tell who is speaking because they are close to the speakers and most often the attorney, witness, or party speaking is at a microphone. On the Zoom platform, the court reporter must watch for the green lighted circle around the speaker box to know who is speaking. It is essential to speak clearly and slowly. • It is not easy to see, hear, and understand those who participate in remote court proceedings from a large confer- ence room with one or more other participants attending the hearing from the same room. The microphone is of- ten far from the speakers and discerning who is speaking is difficult. Participants are encouraged to use headsets with earphones and microphones close to their mouths. • If an attorney is sharing a screen with an associate, probably neither attorney is presenting well. When sharing a screen with another person, each person should identify themselves every time the person speaks. • The only official transcript is the one provided by the Official Court Reporter. Other recordings of Zoom or other video teleconferencing platforms are not allowed. • The most consistent and emphasized across-the-board advice: Place yourself on mute when not speaking, do not speak rapidly, and do not interrupt others or speak while others are speaking. Allow one person to talk at a time, and check and re-check that you are muted or unmuted as needed and that your video is enabled or disabled when appropriate. • Never forget that you are in a court proceeding and on camera. Others also attending the proceeding can see what you are doing.

What Not to Do During a Remote Court Proceeding (based upon actual experience)

• Do not eat. • Do not watch television. • Do not read a book. • Do not floss your teeth or perform other dental hygiene activities. • Do not leave the room without the judge’s permission. • Do not take the device by which you are participating into the bathroom. • Attorneys should advise their clients of what to do and what not to do during remote court proceedings.

In ways both great and small, over the last 13 months, the COVID-19 pandemic has impacted the handling of com- monly held criminal and civil court proceedings. The past year has revealed many advantages to the use of remote proceedings, such as allowing out-of-state counsel and witnesses to appear without traveling, avoiding delays created by bad weather, and providing an opportunity for counsel to coordinate and hold hearings and conferences on short notice; appearing remotely can be very convenient and cost effective in terms of avoiding or minimizing costs, obviating the need to find parking, avoiding traffic congestion, and reducing other common inconveniences that come with traveling to the courthouse to attend a hearing. On the other hand, the technology facilitating remote hearings is not perfect and there have been and may continue to be dropped calls, frozen screens, garbled speech, buffering, and disappearing and faint audio and video issues. Repeated experience has improved the process of holding court proceedings by video teleconferencing and use of these platforms for some purposes may continue after the COVID-19 pandemic no longer makes them a necessity. The most important point to remember is simple and direct: Court hearings held by video teleconference are still court hear- ings, regardless of the location where the participants are physically, and they deserve and demand the same respect and professionalism as in-person hearings held in a courtroom. FBA x AWA CLEs BY: CHLOÉ M. CHETTA, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, L.L.C.

The Younger Lawyers Division of the Federal Bar Association partnered with the Association for Women Attorneys – New Orleans to host a two-part CLE series during Women’s History Month, Sexism in the Legal Field: Experiences and Lessons Learned and The Female Lawyer: The Unique Stress and Obstacles to Practicing as a Woman. Our panelists shared their best and worst stories, the importance of mentorship and amplification, and the best ways to handle the continued sexism and stresses that still permeate practicing as a woman. Special thanks to our panelists for both programs, Jeanne Amy (Jones Walker LLP); Camille Bryant (McGlinchey Stafford); Eliza Gottfried (Orleans Public Defenders); Celia Rhoads (Office of the Federal Public Defender); Jessica Roberts (Frilot LLC); MaryJo Roberts (The Kullman Firm); Ellie Schilling (Schonekas Evans McGoey & McEachin and Founder, Lift Louisiana); Kimberly Silas (Entergy Services, LLC); and to Judge Sarah Vance, Judge Susie Mor- gan, and Judge Janis van Meerveld for joining the conversation and sharing their stories too.

Camille Bryant, Jeanne Amy, Ellie Schilling, Ashley Barriere (CLE MaryJo Roberts, Kimberly Silas, Celia Rhoads and co-chair), Eliza Gottfried, and Chloé Chetta (not pictured, CLE Jessica Roberts kick off the AWA x FBA CLE series co-chair) presented The Female Lawyer: The Unique Stress and with Sexism in the Legal Field: Experiences and Obstacles to Practicing as a woman CLE. Lessons Learned.

2021 CIVIL RIGHTS ÉTOUFFÉE BY: VANESSA BEARY, TULANE UNIVERSITY LAW SCHOOL

On January 28 and 29, 2021, the Civil Rights Law Section of the FBA presented the 2021 Civil Rights Étouffée. While the event is typically hosted in New Orleans, this year’s Étouffée was fully virtual and explored eight panels on cutting-edge areas of civil rights law and ethics issues.

The topics included Enhancing Justice: Ethically Reducing Bias in Policing and the Courts; When Exceptions Be- come the Rule: LGBTQ Rights and Religious Exemptions; Back to the Future: Artificial Intelligence and Civil Rights; How to Ethically Navigate Social Media When Your Case is in the Headlines; Making it Right: Vulnerable Kids, Edu- cation, and COVID-19; Title IX in the Era of #metoo; What is Environmental Justice?; and Neither Rain nor Sleet nor Obfuscation: War Stories from the Front Lines of Voting Rights Litigation & the Post Office.

Panelists included the Honorable Bernice B. Donald, Circuit Judge on the U.S. Court of Appeals for the Sixth Circuit, as well as attorneys with the ACLU, the NAACP, the Education Law Center, and Lambda Legal. Local practitioners Emily Posner, Emily Posner Law, and Marianne Cufone, Director of Environmental Law Program, Loyola University New Orleans, College of Law & Director for Green Justice also served as panelists.

The Étouffée offered breakout rooms following each segment so that attendees could converse with the panelists and moderators.

19 “QUALIFICATION” UNDER F.R.E. 702: FIFTH CIRCUIT V. ELEVENTH CIRCUIT PERSPECTIVES BY: CASEY C. DEREUS, BAER LAW, LLC

Introduction abstract qualifications and qualifications on a specific topic: “Often the qualification prong is not about if the proffered Just how specialized does an expert have to be to opine on a expert is qualified in the abstract, but instead it is about particular subject area under Federal Rule of Evidence 702? whether he is qualified to render an opinion on a specific The answer can be surprisingly different depending on if you topic.” Ifediba, 2019 WL 3082662, at *2 (emphasis added). are in the Fifth Circuit or the Eleventh Circuit. Although there In Ifediba, the district court applied this reasoning and held is room for argument (and jurisprudential support for argu- that a medical expert was qualified to testify regarding whether ment) in both circuits, it seems—generally speaking—that a opioid-prescribing practices were for a legitimate medical pur- higher degree of specialization is required for an expert to be pose when his qualifications included: considered qualified in the Eleventh Circuit than is required in the Fifth Circuit. • graduating from medical school, Federal Rule of Evidence 702 governs the admissibility of • completing a surgery residency, expert testimony. This rule sets forth three requirements: (1) • completing an addiction medicine fellowship, qualification, (2) reliability (assessed under Daubert and its • having years of experience as a clinical practitioner progeny), and (3) helpfulness to the trier of fact. This article in pain management and addiction, and deals with qualification. The Federal Rules of Evidence state • having a board-certification in addiction medicine. that to be qualified as an expert, a witness must have “knowl- Ifediba, 2019 WL 3082662, at *3. edge, skill, experience, training, or education” to form an opin- ion on an issue. Fed. R. Evid. 702. By contrast, in Johnson v. ABF Freight Sys., Inc., 2:18-cv- “Qualification” in the Eleventh Circuit 01835-MHH, at *3, 6–7 (N.D. Ala. Dec. 11, 2020), the Court held that an emergency room doctor with no specific back- In the Eleventh Circuit, while an expert may be qualified by ex- ground in radiology, orthopedics, or spinal injury, but who was perience, that does not mean “that experience, standing alone, a mechanical engineer with accident reconstruction experi- is a sufficient foundation rendering reliable any conceivable ence, (1) was not qualified to opine that the plaintiff’s spinal opinion the expert may express.” United States v. Frazier, 387 injuries were a preexisting condition, but that (2) he could of- F.3d 1244, 1261 (11th Cir. 2004). As the Eleventh Circuit fer biomechanical opinions, including testimony about general has noted—“the Committee Note to the 2000 Amendments of medical causation by virtue of his engineering and accident Rule 702 expressly says that, ‘[i]f the witness is relying sole- reconstruction expertise.1 ly or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that “Qualification” in the Fifth Circuit experience is a sufficient basis for the opinion, and how that The Fifth Circuit takes a less restrictive view. For example, experience is reliably applied to the facts. “The trial court’s the Fifth Circuit has noted: gatekeeping function requires more than simply ‘taking the expert’s word for it.’” Frazier, 387 F.3d at 1261 (citing Fed. “A lack of personal experience—the district court’s concern R. Evid. 702 advisory committee’s note (2000 amends.) (em- here—should not ordinarily disqualify an expert, so long as phasis added)). Recent jurisprudence within Alabama district the expert is qualified based on some other factor provided by courts has interpreted the qualification requirement narrowly. Rule 702. . .” For example, in United States v. Ifediba, an Alabama dis- trict court explained the distinction between credential-based In the Fifth Circuit’s words, “an expert witness is not strictly qualification versus experience-based qualification as follows: confined to his area of practice, but may testify concerning “Particularly where an expert’s qualifications rest on his expe- related applications; a lack of specialization does not affect rience (as opposed to scientific or technical training), the ex- the admissibility of the opinion, but only its weight.” United pert ‘must explain how that experience leads to the conclusion States v. Wen Chyu Liu, 716 F.3d 159, 168–69 (5th Cir. 2013). reached, why that experience is a sufficient basis for the opin- Generally speaking, district courts within the Fifth Circuit ion, and how that experience is reliably applied to the facts.’” seem more inclined to allow an expert in a general field to tes- No. 218CR00103RDPJEO, 2019 WL 3082662, at *2 (N.D. tify in that field, regardless of specialization within that field. Ala. July 15, 2019) (slip copy). 1 Other courts have also rejected the idea of a blanket qualification for all physicians The Ifediba court also explained the key distinction between to testify about anything medically-related. See, e.g., Alexander v. Smith & Nephew, P.L.C., 98 F. Supp. 2d 1276, 1281–82 (N.D. Okla. 2000). cont’d on page 21 “QUALIFICATION” UNDER F.R.E. 702: FIFTH CIRCUIT V. ELEVENTH CIRCUIT PERSPECTIVES (cont'd) In Sandifer v. Hoyt Archery, Inc., No. CIV.A. 12-322-SDD, ing opinions about the forces involved in a collision and the 2015 WL 4429189, at *3–4 (M.D. La. July 20, 2015), a de- likelihood that they would lead to injury, excluding him from fendant challenged an expert mechanical engineer’s qualifica- offering a medical causation opinion in the particular case, but tions to provide opinion testimony about compound bow de- suggesting that if he were a medical doctor, he would have sign, arguing that he had never worked for a compound bow been permitted to testify about medical causation without limi- manufacturer or designed a compound bow, had not published tation. Id. The court stated: “Put simply, medical doctors are in the area of compound bow design, had never investigated qualified—indeed, uniquely qualified—to offer opinions as to any other compound-bow-related incidents or formulated any medical causation; bio-mechanical engineers are not.” prior opinions on compound bow design, and had no life expe- Conclusion rience in archery or the use and operation of compound bows. The court concluded that, since the expert was a mechanical As discussed above, Federal Rule of Evidence 702 governs engineer with a Ph.D. who taught at the university level and the qualification requirement for experts in all federal courts, practiced in the field of forensic engineering, he was qualified but there are developing, divergent trends in the Eleventh and to offer opinion testimony in the field of mechanical engineer- Fifth Circuits about what this means, with the Eleventh Circuit ing—including the mechanical design and alternative designs tending to require a higher level of specialization for an ex- of compound bows. Id. pert to qualify, and the Fifth Circuit considering specialization within a field to go to the weight, rather than the admissibility, Layssard v. United States is also instructive. No. CIV.A. 06- of the expert testimony. 0352, 2007 WL 4144936, at *3 (W.D. La. Nov. 20, 2007). In that case, the court allowed a biomechanical engineer who was not a medical doctor to offer general biomechanical engineer-

YLD CHAIR'S MESSAGE BY: LAURA ASHLEY

Since our last update the New Orleans FBA’s Young Lawyers Division has been busy! The YLD has hosted three lunch with the Court programs, with Judges Barbier and Milazzo of the Eastern District and with Judge Stewart of the Fifth Circuit. The judges shared personal sto- ries, their judicial perspectives as well as experience with Zoom hearings and oral arguments.

The YLD also teamed up with the Association of Women Attorneys and hosted a two-part CLE series on March 11 and 25, on Sexism in the Legal Field: Experiences and Lessons Learned with Jessica Roberts (Frilot), Celia Rhoads (EDLA FPD), MaryJo Roberts (Kull- man), and Kimberly Silas (Entergy) and The Female Lawyer: The Unique Stress and Ob- stacles to Practicing as a Woman with Jeanne Amy (Jones Walker), Camille Bryant (Mc- Glinchey), Eliza Gottfried (Orleans Public Defenders), and Ellie Schilling (Schonekas & Founder of Lift Louisiana). The two-part program offered great insight and perspectives from dynamic women in our profession.

The YLD has some exciting programs coming up that we’re excited to share with our members! Specifically, the YLD will be hosting a lunch with the Court with Chief Judge Shelly D. Dick, U.S. District Court for the Middle Dis- trict of Louisiana, on May 24, 2021 at 12 noon. The Lunch with the Court program is an excellent opportunity to meet federal practitioners, to socialize with other attorneys new to the practice, and to gain valuable insight.

The YLD is also hosting a CLE, Love the One You’re With: Conversation with Inhouse Counsel on May 26, 2021 at 12 noon. This will be an exciting panel with helpful advice to practicing attorneys on working with inhouse counsel. We look forward to having you join us with these and many more great programs coming up!

21 TRIALS AND TRIBULATIONS Trials and Tribulations is your quarterly summary of matters recently tried in the United States District Court for the Eastern District of Louisiana. Organized by topic, the summaries below are compiled by the Editorial Board from Verdict Reporting Forms provided by the Court.

OIL POLLUTION ACT The Court also found Defendants li- addition, Defendant argued that the able to the United States for interest, neck injury was not related to the ac- United States of America v. E.R.R. including prejudgment interest, and cident. LLC, et al. for all litigation costs and attorney’s fees in an amount to be later deter- After trial, the Court found that the Plaintiff, the United States of Amer- mined. low back injury was neuropathic in ica, filed suit under the Oil Pollution nature, but that Plaintiff’s neck in- Act (“OPA”) against E.R.R. LLC, Case No. 19-cv-2340, L(5) (Non-ju- jury was not caused by the accident. Evergreen Resource Recovery LLC, ry trial held with Judge Fallon Octo- and Hugh Nungesser, Jr. seeking re- ber 5-8, 2020) Plaintiff was awarded $2,640,636.36 covery of cleanup and removal costs in total damages broken down as fol- totaling $632,262.49 from an oil lows: spill that occurred on the Mississippi FEDERAL TORTS CLAIM ACT River in May 2015. Plaintiff argued · $400,000 for general damages; that the oil spill originated at a Belle Lionel Singleton, Jr. v. United States Chasse wastewater storage and treat- of America · $140,727 for past medical ment facility owned and operated by expenses; Defendants. Plaintiff got involved in On March 30, 2017, Plaintiff was the matter after Defendants refused injured in a rear end motor vehicle · $250,000 for future medical to pay Oil Mop, LLC for the work accident when he was struck by a ve- expenses; associated with cleaning the oil spill. hicle driven by United States Postal · $207,122 for past lost wages; and Plaintiff maintained that Defendants Service (“U.S.P.S”) employee Don- are responsible parties under the OPA nelle Breaux. At the time of the acci- · $1,642,787 for future loss of and are liable for the oil cleanup and dent, Plaintiff’s vehicle was stopped earning capacity. removal costs. at a red traffic signal, and the impact knocked his vehicle into a third ve- In addition, Plaintiff was awarded Defendants denied liability, claim- hicle ahead of him. court costs, as permitted under 28 ing that the oil spill originated from U.S.C. § 2412(a)(1), and post-judg- a barge that transferred oily waste- Breaux was found to be solely li- ment interest, as permitted under 28 water to Defendants’ facility, or from able for the accident based on Sum- U.S.C. §1961. an act or omission of a different third mary Judgment motion practice. party. Defendants also disputed the Since Breaux was acting within the Case No. 19-2684, J(3) (Non-Jury amount of oil removal costs reported course and scope of her employment trial held with Judge Barbier from by the United States and the National with U.S.P.S., the United States of October 13-14, 2020) Pollution Funds Center. America was vicariously liable for the accident under the Federal Torts The Court found that Defendants Claim Act. Liability was not litigated BREACH OF MARITIME were properly designated as re- at trial. CONTRACT sponsible parties under the OPA in connection with the oil spill. The At trial, Plaintiff sought to recover Trevelyn Enterprises, LLC v. Court concluded that Defendants for injuries to his low back (“L4-5”) SeaBrook Marine, et al. are responsible to the United States and to his neck (“C4-5”). Defendant for removal costs in the amount of conceded that Plaintiff suffered an Plaintiff contracted with SeaBrook $631,228.74 plus administrative injury to his back as a result of the Marine to blast and re-coat the alu- costs of $1,033.75. accident, but argued that the injury minum hull of a yacht. was not neuropathic in nature. In cont’d on page 23 TRIALS AND TRIBULATIONS (cont'd)

Plaintiff specified that Defendant use plaintiffs. After the Non-Profit was over the state claims. Accordingly, Sea Hawk paints, and he request- formed, Lenaz and Camenzuli found- the Court found that Lenaz and Cam- ed that a Sea Hawk representative ed plaintiff ETDO Productions, LLC enzuli were properly removed from monitor the job. Plaintiff alleged (“ETDO”) to manage Disco Amigos’ their board positions due to their the work failed prematurely due to assets and brand. breach of duties to the Non-Profit. paint adhesion issues, caused by the contractor’s unworkmanlike perfor- At issue was whether Lenaz and Ca- Damages were awarded as follows: mance and inadequate supervision menzuli granted implied licenses to by paint company. Contractor coun- the Non-Profit to use the intellectual • Declaratory and injunctive terclaimed for unpaid invoices. property and transferred their alleged relief was awarded to the ownership rights to ETDO. Non-Profit as the rightful After a four-day bench trial, the court owner of the Disco Amigos ruled in defendants’ favor, finding Defendants alleged ownership rights trademark. ETDO, Lenaz and that the issues complained of were and operated under the belief that the Camenzuli must abandon any from normal wear and tear, and the Non-Profit was the rightful -trade claim to right or interest to the work satisfied the warranty of work- mark owner. Plaintiff filed suit, seek- trademark. manlike performance. The court also ing declaratory relief to be named the found that Plaintiff owed the con- rightful owner of the Disco Amigos • Damages to the Non-Profit in tractor approximately $14,000.00 for trademarked property, and request- the amount of $1,901.70. unpaid invoices. ed an injunction to stop defendants’ use of the marks. Defendants filed a • Attorney’s fees and costs in Case No. 18-11375, S(1) (Non-Jury counterclaim, asserting federal and the amount of $108,457.75 as trial held with Judge Lemmon Janu- state claims of breach of fiduciary authorized by the Lanham Act ary 25, 2021 to January 29, 2021) duty and duty of care, unfair com- for “exceptional” cases. petition, false advertisement, injury Case No. 19-cv-13184, B(3) (Non- to business reputation, and negligent jury trial held with Judge Lemelle interference. 15 U.S.C. § 1125 TRADEMARK October 26 to October 29, 2020) INFRINGEMENT (LANHAM The Court determined that the Non- ACT) Profit were the rightful owner of the Disco Amigos trademark. It based ETDO Productions, LLC v. Alfredo that conclusion on: its continued use Cruz, Michelle Rossi, Michelle Hu- of the marks; Lenaz and Camen- dak, Marisa Naquin, Sonya Bour- zuli’s abandonment and transfer of geois, Lisette Bayle, Renee Pastor, intellectual property interests to the and Disco Amigos Social Aid and Non-Profit; the public identified the Pleasure Club Non-Profit to be the true owner of the trademark; and, ETDO’s subse- Plaintiffs and counter-defendants quent unauthorized use of the marks Jerry Lenaz and Francois Camenzuli caused actual confusion regarding created the “Disco Amigos” phrase trademark ownership. and logo in hopes of hosting the “World’s Largest Disco Party” at lo- Because of the Court’s familiarity cal parades and events. They helped with the facts of the case and the sig- form the defendant non profit Disco nificant factual relationship between Amigos Social Aid and Pleasure the federal trademark claim and the Club (“the Non-Profit”), to which state counterclaims, the Court re- they served as board members with tained supplemental jurisdiction the named defendants and counter-

23 Federal Bar Association FIRST CLASS MAIL New Orleans Chapter U.S. POSTAGE P A I D c/o Steven F. Griffith, Jr. 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 José R. Cot 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, Michael Finkelstein, Rachel Naquin Please contact us at: [email protected]

SAVE THE DATE FOR UPCOMING EVENTS All programs listed will be held via Zoom.

New Orleans Chapter’s Awards Conversation with Inhouse Counsel CLE Nomination Period May 26, 2021 Now – June 11, 2021

Justice Camp Virtual Lunch with the Court July 12-16, 2021 with the Hon. Shelly D. Dick May 24, 2021