~meritan ~ollege of \lrrialJLatupers THE BULLETIN

Number 30 Spring 1998

ACTL Spring Meeting

In \ Palm Desert

Three Presidents in Palm Desert P. Andre Gervais, Q.C., Montreal, Quebec, President, Canadian Bar Association; Edward Brodsky, New York, President, American College ofTrial Lawyers; Jerome J. Shestack, Philadelphia, President, American Bar Association.

ome 950 ACTL Fellows, President of the College and At- gether, there are more disputes," Sspouses, guests and speakers torney General in President he said. ''People seem to be con­ gathered at the Marriott Desert Jimmy Carter's Administration, stantly looking for new rights." Springs Hotel in Palm Desert, spoke ofthe "explosion of rights" Noting that we must be very care­ California for the American Col­ in this country during the first ful in state and federal courts not lege of Trial Lawyers' 1998 General Session on March 20. to deny people their rights, he Spring Meeting in March. "Life has become more compli- also said one of the major chal­ Judge Griffin Bell, a Past cated, people are crowded to- (Continued on page 2)

In This Iss~e: 1- ACTL Spring Meeting Spring Meeting CLE - 13 6 - President's Report ACTL Calendar of Events - 16 9 - Spring Meeting Honors . Committee News Reports- 18 10 - New Fellows Inducted ~ State and Province Committee Repods - 25 12 - Judicial Appointments THE BULLETIN 2

(Continued from page 1) "bounty hunting" qualities of i!lmetiran Ql:ollege of m:rial J!.atnperli lenges of the court system is Qui Tam cases as being, ''wild THE BULLETIN ''weeding out rights somebody cards within the law, and they CHANCELLOR-FOUNDER imagines they have from real greatly interfere with the way Hon. Emil Gumpert (I 895-1982) rights." Judge Bell said there are the legal system should work." "too many trifle cases" and that Judge Bell is a Fell ow of the OFFICERS the development of class action EDWARD BRODSKY, President College and a partner with King E. OSBORNE AYSCUE, JR., President-Elect cases has sent "lawyers looking and Spalding in Atlanta. MICHAEL E. MONE, Secretmy EARL J. SILBERT, Treasurer for cases that produce fees." ANDREW M. COATS, Immediate Past President He also noted the difficulty of NITA in South Africa BOARD OF REGENTS average Americans gaining en­ E. OSBORNE AYSCUE, JR. JOHN S. MARTEL trance to our legal system. "If James E. Ferguson, a Fel­ San Francisco, California San Francisco, California low of the College and Chair of EDWARD BRODSKY MICHAEL E. MONE you are middle class and don't New York, New York Boston, Massachusetts have a contingency case," he the National Institute of Trial SPENCER J. BROWN JAMES W. MORRIS, lll Kansas City, Missouri Richmond, Virginia said, "you are hard put to estab­ Advocacy (NIT A), told the au­ ANDREW M. COATS ANTHONY MURRAY dience of some 500 ACTL mem­ Oklahoma City, Oklahoma Los Angeles, California lish your rights." He reminded DAVID S. CUPPS EDWARD J. RICE, JR. the audience that there are public bers at the opening session about Columbus, Ohio New Orleans, Louisiana NIT A's experiences in establish­ LOUIS W. FRYMAN DAVID W. SCOTT, Q.C. defenders, legal aid lawyers and Philadelphia, Pe~sylvania Ottawa, Ontario country lawyers who never turn ing a trial advocacy program in GARRM.KING STUART D. SHANOR South Africa. He explained that Portland, Oregon Roswell, New Mexico people away from their doors, THOMAS R. LEMON EARL J. SILBERT but that there is no organized the legal system in South Africa Warsaw, Indiana Washington, District of Columbia is a combination of common law WARREN B. LIGHTFOOT effort to take care of the middle Birmingham, Alabama JAMES F. STAPLETON and the civil law of the Dutch­ Stamford, Connecticut class. ROBERT A. YOUNG He also contended that, "One Roman system, and that there Executive Director of the worst things that has hap­ was no jury system when the PUBLICATIONS COMMITTEE NITA program began there 12 L. F. SAMS, JR., Chail; Tupelo, Mississippi pened to the law practice is doing RAYMOND M. BROWN, Newark, New Jersey years ago. He said that even MORRIS HARRELL, Dallas, Texas away with notice pleading." Stat­ DANIEL T. RABBITT, St. Louis, Missouri though the justice systems of the PAUL A. RENNE, San Francisco, California ing, 'We have had an explosion L. K. SMITH, Tulsa Oklahoma United States and South Africa RANDALL L. SOLOMON, Cleveland, Ohio of discovery," he told of his sur­ JAMES A. VANDER STOEP, Chehalis, Washington are quite different, he "soon SHARON M. WOODS, Detroit, Michigan prise on once hearing that a DAVIDS. CUPPS (Regent Liaison) lawyer in his firm was, "On dis­ learned that the techniques of GARY HUNT advocacy and persuasion are Managing Editor covery." Judge Bell said lawyers try to find the facts through dis­ universal." covery and document production Mr. Ferguson explained how and added that, ''Document prac­ the "Black lawyers of South tice has become one of the most Africa had incredible obstacles expensive parts of the practice of to overcome." He said the law." lawyers they met in those early days of the program had come American College of Trial Lawyers Judge Bell also mentioned 800 I Irvine Center Dr. , Suite 960 how the Federal Sentencing face to face with the criminal Irvine, California 92618 justice system, "And virtually all Telephone: (714) 727-3194 Guidelines have ')ust about Fax: (714) 727-3894 of them had been political pris­ coPYRIGHT taken plea bargaining out of the 1998 ~....-______] justice system." He also called oners of one kind or another. punitive damages, RICO, and the (Continued on page 3) 3 THE BULLETIN

(Continued.from page 2) son, Stein, Wallas, Adkins, Gresham & Almost to a person, the lawyers we met Sumter, P.A. of Charlotte, North Car­ had been arrested for political reasons, olina. had been imprisoned for political rea­ sons, had been banned - a punishment Do You Know Your Client? we don't know anything about here­ for political reasons, or had been ban­ John L. McGoldrick, a Fellow of the College and Senior Vice President ished for political reasons." He also ' said most of them were products of a Law and Strategic Planning, and Gen- "grossly inferior" education and legal eral Counsel of Bristol-Myers Squibb education. "They encountered disre­ Company in New York gave a presen­ spect in the courts and every day they tation entitled, ''Reflections of a Trial laid their lives on the line and were in Lawyer Turned General Counsel." He said the great challenge is for danger of personal safety. Yet, to a the general person they were committed to spend­ trial lawyers to understand business ing their time in a program that was people. He asked the audience, "How counsel's job foreign to them because they felt this good is your understanding of our is to "protect role?'' Mr. McGoldrick noted that was a way of improving their advocacy shareholder skills." business people have a different world "These were lawyers who were view from lawyers. He said the general values." fighting the effects of an unjust system counsel's job is to "protect shareholder on a daily basis," Mr. Ferguson said. values." John McGoldrick "These were people who were seeking He said there is often a different emergency applications to keep people perspective from what the trial lawyer in their homes. These were people who thinks business people want from what were protecting children who were ar­ they really want. rested under a state of emergency for Although part of the general nothing more than kicking a ball into counsel's job will always be to count beans and be cost effective he said the street and following the ball down ' ' the street. These were people who "what we really want is the highest were trying to keep families together professionalism." when a family member might be taken His list of what general counsel re­ away in the night and detained without ally wanted was as follows: excellence explanation, and without contact with in all things, big and small; wisdom; the outside world." independent judgement; fearless can­ He also noted that NIT A was "a dor; integrity, responsiveness to gen­ child" of the ACTL as the College had eral counsel and the core values of come forth with a seed grant of civility and honor. $10,000 in 1971 to help get the insti­ Mr. McGoldrick challenged the au­ dience to "know thy client " to find out tute started. The College has also pro­ l ' vided cash and resources to pay for what the company really wants. "Don't lawyers to attend NIT A courses over be afraid of numbers," he said, and the years. "think ofwhy we retain you." Mr. Ferguson is a partner in Fergu- He said he realized the difficulty of (Continued on page 4) THE BULLETIN 4

(Continued from page 3) to de-link federal judges salaries answenng the general counsel's from those of Congress. The com­ question of "What are our chances of mittee is also developing a process winning this case?" He said 1general whereby they can prepare Fellows to counsel know you can't really put a speak out quickly when "hair­ number on that question, but that it triggered calls for an unpopular deci- · was, nevertheless, a relevant and im­ sion" can be appropriately defended. portant question. ''What I really want The committee is also focusing on to know is what's in your gut, your the problem of current judicial va­ liver, your soul, your heart," Mr. cancies in hopes that appointments McGoldrick said. "It's very valuable. can be made more quickly, and that It's one of the most valuable things hearings might occur more quickly. you sell us." The committee is also working He also said, "Next, we don't want with the Federal Judicial Center, surprises." Mr. McGoldrick ended his which has asked the College to pro­ talk by saying that . lawyers talk too vide lawyers to train new judges. much. "Say what you have to say and Ms. Tucker asked anyone interested when you're finished with it- stop." in this important mission to let her know. The Federal Judiciary Three Decades On The Bench "We seek an Marna Tucker, Chair of the · ACTL Federal Judiciary Committee Honorable Robert R. Merhige, independent and a partner in the Washington, D.C. Jr., Senior United States Judge, Richmond, Virginia, has announced • judiciary to law firm of Feldesman, Tucker, hear our cases Leifer, Fidell & Bank,. told Spring that he will resign in June and re­ Meeting attendees of an important enter the private practice oflaw. and we want project before them. Noting that be­ "When I came on board the salary an atmosphere cause federal judges have restrictions was $30,000," Judge Merhige said offairness and on what they can do to speak for of his 31-year service as a federal themselves, "Judges must rely on oth­ judge. "Fortunately, I had had a suc­ an atmosphere ers to do that job for them." cessful law practice and I had valid that promotes The mandate of the Federal Judi­ investments, so the salary wasn't speedy ciary Committee, she said, is that, very important." He said he has no ''We seek an independent judiciary to regrets and has had an exciting ca­ justice.'' hear our cases and we want an atmo­ reer, "But I've had this nailing com­ sphere of fairness and an atmosphere pulsion that I have not been fair to Marna Tucker that promotes speedy justice." my family - especially to my grand­ "First of all," Ms. Tucker said, "we children, and my children - from a want a well-compensated judiciary to financial standpoint. Education is im­ attract and to retain the best of our portant to me, and I'm leaving solely profession." because of the fact that I'm getting She also told of the College's tired of writing ten dollar checks to

efforts to get automatic cost of living (Continued on page 5) increases for the federal judiciary and • 5 THE BULLETIN

(Continued ji-om page 4) going before judges. "I'm on the charities that really need much more multi-district, a panel, and very fre­ than that." He also said that he wanted quently we have lawyers come before to be sure that his grandchildren would us and say, 'All we want is a neutral have more assurance of a good college judge'. Frankly, I become enraged education. when they make that kind of state­ Judge Merhige told of his love of ment. I don't know. I've asked them. the law and how there was a time "If he's not neutral, he ought not to when he wasn't sure if he would be­ be a judge," he said. "The truth of the come a lawyer at all. There were oth­ matter is the people who make those ers in his law class who seemed much statements just don't know the sys­ "The biggest more able to grasp what was going on tem." case is the one so much more than he. Then one day He also explained that some right in front the law professor came into class with lawyers are concerned they might have the graded papers of a test. The pro­ upset a judge. ''Don't worry about ofyou. It fessor called Judge Merhige's name disturbing the judge," he said. "If he's means and he got up and walked to the front a real judge, he'll do what I do. I get somebody's of the class. The professor said, "You so angry sometimes that I'd like to get got a 36 on the exam." Judge Merhige off the bench and pop somebody. I liberty or said he could still remember the em­ don't dare do it. I just take a little property. It's barrassment, the anger that went recess and run cold water over my important to through his mind, that this man could wrist and look in the mirror and say, be so cruel. He heard the snickering of 'you're a judge, act like a judge'." somebody. " • the "smart boys" in class behind him. Judge Merhige also told the story Then the professor looked over his of too many lawyers in the courtroom Judge Robert R. shoulder to the rest of the class and for a hearing on a discovery issue that Merhige, Jr. said, "Incidentally, that's the highest he considered to be very simple. "You grade in the class." know, gentlemen," he said, "I'm glad "I knew then I was going to be a to see you in a way. But I want to tell lawyer," Judge Merhige said. you, I don't consider myself to be the He said he is asked often, "What is brightest judge in this circuit, or even your most interesting case?" His an­ in this division. But I'm not so damned swer - "Tomorrow's case. Tomor­ dumb that I need eight lawyers to . . row's case is going to be the most " exciting I've ever had." He also said, He also told of a class action case "The biggest case is the one right in involving an item that sold for 79 front of you. It means somebody's cents. He told the lawyers that this liberty or property. It's important to looked like a lawyer's case to him. He somebody." said, "Okay, I think you've got a case He also said he does not go to bed here, lfut I want you to know if you each night without thanking God for come up here with a settlement where having gotten him into the legal pro­ the company gives coupons, the fees fession. are going to be given in coupons." Judge Merhige had a tip for lawyers (Continued on page 13) THE·BULLETIN 6 The President's Report •

hat is the College doing adversaries. W about the lack of civility Incivility breeds incivility and among lawyers? What is the Col­ some of us, to even the playing lege doing about the poor repu­ field, decide to fight fire with tation oflawyers? fire. But succumbing to that These are questions that are temptation turns adversary pro­ constantly asked of me as I travel ceedings into gutter fights and around the country to attend everyone loses - the client - Edward Brodsky President State and Province meetings, the profession - and the judicial and I will address those issues in system. Accordingly, that re­ this report. sponse adds fuel to the fire of best of our young people to our First- the issue of civility. incivility and is hardly a solution profession when so many of Why do so many lawyers act to the problem. them are worried about entering uncivilly to their adversaries? The reason we should act into a legal environment which Some say clients believe Rambo civilly, even against an uncivil they fear is uncivil and hostile to tactics give them an advantage. adversary, is because we must the way they want to live? Some say the practice of law has not be promoters of conflict - Issues of civility are not ade­ become a business rather than a we must be peace seekers, not pit quately addressed in the disci­ profession and that ethical rules bulls. Lawyers should be prob­ plinary rules. The standards we are being trashed for the sake of lem solvers - healers - whose should set for ourselves go be­ obtaining more business. conduct should soothe, not exac­ yond the minimum standards There was an article in the erbate the issues between adver­ mandated by the Codes of Pro­ New York Times not so long ago saries. Incivility intensifies these fessional Responsibility. Civility written by a prominent lawyer - problems. It does not alleviate is a professional culture issue - not a member of the College - them. not a rules issue. Much of the entitled, "I am paid to be rude." Lawyers must not only ad­ incivility which exists today Is that true? Do we get better vance the interests of their clients would not violate any ethical or results for our clients when we - we owe a duty to the judicial disciplinary rule. But our profes­ kick our adversaries below the system to be sure that it is a sional behavior must be much belt - when we go right to the respected institution which will higher than the lowest common line on ethical and behavioral treat people fairly and with dig­ denominator for reasons other issues? nity. Incivility demeans that sys­ than fear of sanctions or disci­ I do not believe so and, quite tem. Incivility produces profes­ pline. the opposite, there are many rea­ sional discontent, public disap­ How can our profession deal sons why civility - not incivility proval of lawyers and disrespect with the problem so that the - is critical to the practice of for the judicial system. stain of incivility will eventually law. First, let's be practical Civility is important also be­ be eradicated? about it - forget for a moment cause it directly impacts our own We in the College behave about the high calling of our self-image and the level of satis­ civilly to our adversaries which, profession to behave honorably, faction we can achieve as by itself, is a great help because ethically and respectfully to our lawyers. How can we attract the we teach by example. But be- 7 THE BULLEJI'IN

(Continued from page 6) Now, let us turn to the lice come knocking on our door yond that, the College has, at this lawyer's reputation. and pay no attention to the limi­ year's Spring Meeting, approved We are not a popular profes­ tations created by years of con­ a teaching syllabus prepared by sion. We are accused of being stitutional jurisprudence created the Committee on Trial and Ap­ greedy and are the targets ofbad by an independent judiciary and pellate Advocacy to be used by jokes in poor taste. Why is that? an independent bar? Who will be Fellows all over the country, In part, it is because we are the champions of those who can­ along with our Code of Trial the ones who are called upon to not speak for themselves? Who Conduct. represent unpopular causes - will be the healers? Who will The idea is that each State to defend against the tyranny of protect our basic freedoms of Committee will, using the syl­ the majority. People criticize us speech and religion? Who will labus, assign Fellows to fan out when they are problem free but prevent the government from to the local law schools in their seek us out in times of crises. To encroaching on our liberties. areas to lecture about civility. meet the constant criticism of It is the lawyers and our inde­ We hope to reach students early lawyers, we must speak out pendent judiciary. No other pro­ enough to persuade them that about the glory of our profes­ fession carries that burden. uncivil conduct is wrong - it sion and our magnificent accom­ I say to the people who criti­ should neither be engaged in nor plishments in the development cize us - look at some of the tolerated. Teaching our young of our democracy. And we, the lawyers who have won the Col­ people is one way that the future members of the College, have an lege's award for Courageous may be shaped. obligation to carry the message Advocacy: The College Foundation is that our dedication to the high­ (1) Julius Chambers, work­ sponsoring an essay contest for est standards of justice and the ing in North Carolina in the civil • law students on the subject highest standards of competence rights movement. A bomb shat­ "Civility and Zealous Advocacy still exists. Protecting our sys­ tered the window of his home - Are the Two Incompatible?" tem demands rigorous and con­ while his family slept. His car The Foundation is giving a cash stant attention - especially by was firebombed while he was award to the winners of the con­ members of the College. delivering a speech. His father's test and has received approxi­ When someone says to me automobile repair shop was mately forty-five essays that that the best days for lawyers burned twice and Mr. Cham­ have been reviewed by a distin­ are behind us - and for those ber's automobile was destroyed guished panel of judges. The who believe that our society by arsonists. But he continued to winning essay will be published would be a better place without persevere and he made a differ­ in our Bulletin. lawyers - I say that they bear ence. Are these complete answers? the burden of explaining - who (2) Max Stem, who repre­ Of course not. Will they help? Of will take their place? Who will sented without fee, a black Ja­ course they will and everything fill the great void that would be maican illegal immigrant we can do every day in the prac­ created without the lawyers? charged with the murder of a tice of law to teach by example Who will protect the poor police officer. His tenacious in­ will improve the system. If all of and the injur,ed and the victims vestigation demonstrated that us pull together and make a con­ and those who are different? many affidavits in support of certed effort to deal with this Who will be on the vanguard police search warrants in the issue, we can eventually cure this when the government en­ Boston area contained false terrible problem. croaches our liberties - the po- (Continued on page 8) .THE BULLET1N 8

Annual Meeting of the Virginia Fellows, held in Richmond in January 1998.

President Edward Brodsky; Bunny Burgin, wife ofNorth Carolina State Chair Charles Burgin; Regent James W Morris, III; and John H. OBrian, Jr., State Chair of Virginia.

President's Report lished. do more. The Fellows of the Remember this, our fine inde­ College are leaders of our com­ (Continued from page 7) pendent judiciary would have munities all across the country. statements. nothing to do - would just sit You command the respect that Mr. Stem exposed police mis­ there - without the lawyers comes with years of dedication conduct that jeopardized the bringing cases to it, some of to your profession and years of Constitutional rights of all citi­ them establishing our enduring high achievement. zens. He was widely criticized in constitutional principles. And If each of you would seek out the press by the mayor and by these principles have not been opportunities to talk to people in law enforcement officials. And established by wealthy corpora­ your communities - whether it years before that, in the face of tions paying huge fees to is at town meetings - or local public hysteria and death threats, lawyers. These cases, in large television - or in the schools - he successfully defended an measure, have been brought on to send the message of what African American house painter behalf of people who cannot af­ lawyers have done in this coun­ who was falsely charged in the ford to pay large fees. Many of try and what they continue to do rape of a white student in an area these actions have been brought on a daily basis. I believe we, of Boston. He made a difference. and prosecuted by lawyers work­ together, will make substantial I could go on and on about ing for a fraction of the fee they inroads in addressing this prob­ law'yers - lawyers who make could command in other cases, lem. this country the unique place that or sometimes working for no fee Ifwe don't do it, who will? it is. at all. The facts are there and you These cases, and other cases So, in the face of that record are the best advocates in the involving basic freedoms, have of achievement, what can we do country. Can you imagine what been brought by lawyers, shaped to improve the reputation of we can do if we made a con­ by · lawyers and argued by lawyers? certed effort in this regard? lawyers. Without these cases our Aside from living our lives the I ask you to join in this effort great principles of law and free­ way we do and teaching by ex­ - and together we can make a dom would not have been estab- ample, I believe that all of us can difference. 0 9 THE BULLETIN

National Moot Court Competition Winning Team

Valerie Davis, Rachael Abrams and Kathryn King of the New York University School ofLaw, received the Winning Team Award for the 1997 National Moot Court Competition.from DavidS. Cupps, ACTL Regent.from Columbus, Ohio. Ms. Davis, as "Best Oral Advocate, " gave the student's response during the Spring Meeting in Palm Desert.

Spring Meeting Honors

"What are the attributes of outstand­ ing counsel really representated by all ofyou. I think they are integrity, hon­ esty to themselves, to their clients, the court. Industry, all the difficult work of the endless preparation to refine issues, to make the facts clear and to present the issues. Dedication to the role and the work of counsel, which is ACTL Past President Ralph I. Lancaster, Rortland, one of the foundation stones of any Maine, presented an ACTL Honorary Fellowship to democratic society. Courage, the Associate Justice Peter deC. Cory of the Supreme great courage to represent unpopular Court of Canada during the Spring Meeting. individuals and unpopular causes. " Justice Cory is from Ottawa, Ontario. Associate Justice Peter deC. Cory THE BULLETIN 10 New Fellows Inducted Durring 1998 Spring Meeting In Palm Desert

The College welcomes the M. Max Steinheimer Howard B. Soloway following Fellows who were Stockton Los Angeles inducted into Fellowship during the 1998 Spring Gary T. Walker Timothy L. Walker Meeting in Palm Desert. San Francisco Long Beach SOUTHERN CALIFORNIA COLORADO ARIZONA Brad Dennis Brian William L. Keating Gerald Maltz Los Angeles Denver Tucson Maureen J. Bright Bruce W. Sattler NORTHERN CALIFORNIA Glendale Denver Richard Conway Philip R. Birney CONNECTICUT Long Beach Sacramento Kathleen Eldergill Louis "Duke" De Haas Thomas J. Brandi Manchester Los Angeles San Francisco Garrett M. Moore Don G. Grant Michael L. Dillard Cheshire Riverside Sacramento J. Daniel Sagarin Virginia C. Nelson John Echeverria Milford San Diego San Francisco Thomas J. Nolan FLORIDA William L Jaeger Los Angeles San Francisco Lewis "Mike" S. Eidson Miami P. Beach Kuhl David J. Noonan San Diego San Francisco David B. King Layn R. Phillips Orlando Gregory P. Lindstrom Newport Beach Sim Francisco Chandler R. Muller Denny Schoville Winter Park James McManis San Diego San Jose Herman J. Russomanno Miami (Continued on page 11) 11 THE BULLETIN

ILLINOIS W. David Wells Stephen A. Madva St. Louis Philadelphia Norman J. Barry, Jr. Chicago Harold L. Whitfield TENNESSEE St. Louis Catherine Coyne Reiter James R. Garts, Jr. MONTANA Chicago Memphis Matthew A. Rooney Theodore R. Dunn Chicago Bozeman KENTUCKY Vic Anderson NEBRASKA Fort Worth J. David Boswell Robert D. Mullin, Jr. Douglas E. Chaves Paducah Omaha Corpus Christi

LOUISIANA NEW JERSEY Barbara M. G. Lynn Dallas Harry S. Hardin ill Lewis B. April New Orleans Terence M. Murphy Atlantic City Dallas MARYLAND Thomas R. Ashley Glenn A. Perry Newark Longview Kenneth Armstrong • Rockville Lauren E. Handler Jorge C. Rangel Morristown Corpus Christi Deborah A. Johnston Greenbelt Peter L. Korn Shannon H. Ratliff Springfield Austin Paul F. Kemp Rockville Eugene M. Purcell Reagan W. Simpson Bedminster Houston Benjamin Rosenberg Baltimore William C. Slusser Houston Kenneth L. Thompson David J. Hooker Baltimore Cleveland VIRGINIA MISSOURI PENNSYLVANIA . Stephen M. Hodges Abingdon Allen D. Black James P. Holloran Virginia W. Powell Philadelphia' St. Louis Richmond Duane E. Schreimann Nancy J. Gellman Jefferson City Philadelphia (Continued on page 12) THE BULLErlN 12

(Continuedfrompage 11) MANITOBA/ Charles F. Witthoefft SASKATCHEWAN ACTL Fellows Richmond Dennis P. Ball, Q~ C. Appointed WASHINGTON Regina To The Bench

William F. Etter Neil G. Gabrielson, Q.C. Spokane Saskatoon The College is pleased Dennis L. Fluegge ONTARIO to announce the following Yakima judicial appointments of Donald B. Bayne Fellows. Michael J. Myers Ottawa Spokane Roy C. Filion, Q.C. Hon. W. Ian C. Binnie, Q.C. Kate Pflaumer Toronto of Ottawa, Ontario was recently Seattle appointed to the Supreme Court Stan G. Fisher, Q.C. of Canada. William R. Squires ill Toronto Seattle Hon. Harvey W eissbard of Roger T. Hughes, Q.C. Newark, New Jersey was re­ Lish Whitson Toronto Seattle cently appointed to the Superior Kristopher H. Knutsen, Court ofNew Jersey. WEST VIRGINIA Q.C. Thunder Bay Hon. Allan R. Hilton of Mon­ Dan 0. Callaghan treal, Quebec was recently ap­ Summersville M. James O'Grady, Q.C. pointed Judge of the Quebec Ottawa Superior Court. WISCONSIN Charles F. Scott Toronto Hon. W. Erwin Spainhour of William R. Wick Concord, North Carolina was Manitowoc Ronald G. Slaght, Q.C. recently appointed Senior Resi­ Toronto dent Superior Court Judge. 0 I BRITISH COLUMBIA I QUEBEC

J. J. Camp, Q.C. Vancouver Lynne D. Kassie Montreal Karen F. Nordlinger, Q.C. Vancouver Richard Nadeau Montreal 13 THE BULLETIN

Spring Meeting CLE: Spring Meeting responsible - or bear the re­ sponsibility - for that loss." Daubertas Roadmap (Continued ji"om page 5) 6) "Pro bono service. We all for the Trial Lawyer Attributes of know that time is worth money. Outstanding Counsel Why should we do that? One of the reasons is just human de­ An experienced panel guided Jerome J. Shestack, a Fel­ cency." Mr. Shestack also said, Fellows through the difficult ter­ low of the College and Presi­ "If we are committed to the rain of whether a jury should be dent of the American Bar Asso­ goals of justice, then we must allowed to hear the testimony of a ciation, spoke on "The Trial secure those goals with equal particular "expert" to express an Lawyer in the Twenty-First access, through helping the opinion on a subject during the Century." Mr. Shestack talked poor, through helping the vul­ CLE portion of the ACTL Spring of hopes and aspirations of nerable, the displaced in our Meeting in Palm Desert. lawyers an.d the legal profes­ society." President-Elect E. Osborne siOn. Mr. Shestack also reminded Ayscue, Jr., in introducing the He outlined his six-point star Fellows that eight Presidents of panel, said, "What kinds of expert of professionalism: the American Bar Association testimony are subject to the tests 1) "Integrity and ethics - had also been Past Presidents of laid out in Daubert has itself been the high moral ground, some­ the ACTL. given different answers by differ­ thing that should always be in Mr. Shestack is a partner in ent courts." the forefront of our conscious­ the Philadelphia law firm of "Daubert in the Courts, a ness." Wolf, Block, Schorr & Solis­ Roadmap for the Trial Lawyer," 2) "Competence and inde­ Cohen. explored how courts apply pendence." • Daubert and offered practical 3) "Learning and education. Canadian Courts . suggestions for dealing with ex­ And I don't just mean taking pert testimony in one's own prac­ CLE courses. We are in a pro­ P. Andre Gervais, Q.C., tice. fession where learning and edu­ President of the Canadian Bar ACTL Fellow J. Donald cation means constant replin­ Association, explained litiga­ Cowan, Jr. of Greensboro, North ishment." tion in Canada. Mr. Gervais Carolina prepared the materials 4) "Civility. Not just surface told of the etiquette and proce­ and moderated the panel. Pan­ politeness, it is respect for the dural differences of Canadian elists were: Fellow Sherrill Wm. dignity and worth of the human courts. Then he said, ''Damage Colvin, Fort Wayne, Indiana; being. It is an ability to put an awards in Canada amount to Steven R. Kuney, Washington, end to rancor and to dispute little more than pocket money D.C., who represented Joiner and anger and arrogance. It is in the United States." He said against General Electric in the recognizing that the worth of pain and suffering in Canada is recent U.S. Supreme Court case life is what makes civilization capped and $250,000 is that established the standard of grow and advance." "absolutely tops" for an award. review in Daubert rulings by the 5) "Our obligation to our Punitive damages are the ex­ district court; Judicial Fellow system of justice. We are the ception and treble damages are Honorable William L. Osteen, Sr. ministers of our system of jus­ rare, "and you had best just of Greensboro, North Carolina; tice and if there is a loss of forget about them." He said and Fellow Chilton Davis Varner public confidence in our justice (Continued on page 14) of Atlanta, Georgia. 0 system, we are in large measure THE BULLETIN 14

Spring Meeting The Sword and The Gallows

(Continued from page 13) Walter E. Dellinger, ill, is a law that 'jury selection in Canada is differ­ professor at Duke University Law ent, and 99 percent of the cases are School. In addition to being a consti­ heard by a judge." tutional scholar, he served as Acting He also said that since Canada is U.S. Solicitor General during the bilingual, "If you don't understand 1996-97 term of the U.S. Supreme French you will be working at a disad­ Court. vantage," and that Canadians do not He began his talk with the dire regard speed as an attribute. "A snail's threat of failure that faced the framers pace is more in store," he said. of the Constitution when they re­ "Canddians Then he said that, "Because the turned from their first break of the summer on July 6, 1787. "Gouveneur are majestic form of our civil justice tends to be slow, the awards comparatively Morris of Pennsylvania admonished embracing small, and the win-lose results of our his colleagues," Mr. Dellinger said. "'I Alternative system unsatisfactory, Canadians are came here', he said, 'as a representa­ tive of America. I came here' he said Dispute embracing Alternative Dispute Resolu­ ' ' tion with a zeal no one could have 'as a representative of the whole hu- Resolution predicted a decade ago." man race, for the whole human race with a zeal Quoting ACTL Regent David Scott, will be affected by the proceedings of this convention'." no one Q.C. of Ottawa, he said, ''Litigation as we know it is going the way of the ''While we in our own time may could have dodo bird. There is far too much play­ doubt that they could represent the predicted a ing in the interlocutory way, far too whole human nice," Mr. Dellinger much discovery, far too much paper said, "we surely cannot doubt the pre­ decade ago. " chasing. The public is becoming impa­ dictive assessment that the whole hu­ tient with it. They are saying it is too man race would be affected by the P. Andre expensive, it takes too long, it's too proceedings at Philadelphia." Gervais, Q.C. frightening, and it is not user-friendly." Returning to Morris' quote, "He Mr. Gervais said, "My advice to said to his colleagues, 'We must ex­ you, then, should you be contemplating amine the consequences of failure. legal action in Canada, is this. Look to The country must be united. If persua­ the future, not the past. Consider the sion does not unite it, the sword will'. advantages of ADR over the adversar­ He begged that they consider the hor­ rors of civil commotion - 'the traitors ial system. If you are coming North on behalf of a client, you may want to that will be made by the stronger hone your abilities to speak softly and parties of the weaker. The stronger you may find it prudent to leave the big party will make traitors of the weaker stick behind." and the gallows will finish the work of Mr. Gervais is a partner in the Mon­ the sword'." treal, Quebec law firm of Mackenzie Mr. Dellinger said it was an ex­ Gervais. traordinary "Apocalyptic vision." ''What was striking," he said, "is (Continued on page 15) 15 THE BULJ..J!II'IN

(Continued from page 14) come up and see some agreements that • that no one stands to refute the vision they were bound by," Mr. Thigpen of the sword and the gallows finishing said. "It took six months," he added. "But it may be the job of the sword." He could not take the documents out of found in .the the office, nor could he make copies of Pursuing an NFL Franchise them. He was, however, allowed to future that a bring a tape recorder so he could sum­ lawyer who Richard E. Thigpen, Jr., General marize the documents. "There were comes from Counsel of the Carolina Panthers, some surprises," he added, "but noth­ Charlotte, North Carolina, spoke ofthe ing terrible." Massachusetts Carolina Panther's pursuit of an NFL He continued telling the audience of who comes out franchise. He told of Panther's owner, challenges faced by the owners to ac­ to Mark Richardson's, campaign to gain quire an NFL franchise as he described strong community support throughout meetings with the NFL Finance Com­ California is the Carolinas, beginning in 1988. By mittee, structuring the franchise so going to find 1990 - three years before being there ''was some reasonable protection that he awarded a franchise - they had de­ of the owners," and the method they s cided to build a stadium in Charlotte. used for ownership of the stadium. The going to leave He said the city had assembled 33 acres stadium, he said, "is owned by a trust some ofhis of land, which they would rent for a for the benefit of charity, but it is not a pay check out dollar a year for 99 years. ''Before you charitable trust." think that's a steal, remember we had Mr. Thigpen also gave a bleak warn­ here." to commit to spending $400 million on ing to lawyers in attendance as he • that land," Mr. Thigpen said. spoke of the multi-state taxation of Richard E. "So the city got a good bargain out athletes. When the Carolina Panthers Thigpen, Jr. of it, but they also decided that in case go to California to play the Forty­ we didn't get the franchise, we had to Niners the state of California takes agree to pay $3 5 million for the land state i~come tax out of a portion of the they had assembled for us. They had a players and coaches' salaries, he said. no lose situation." "It's a shell game to me," he added. In fact, Mr. Thigpen's description of ''But it may be found in the future that the efforts to gain a franchise was filled a lawyer who comes from Mas­ with no lose situations. He told of how sachusetts who comes out to California tightly and secretively the NFL holds is going to find that he's going to leave its documents. He explained the diffi­ some of his pay check out here. And culty he had in looking at some agree­ when the California lawyer goes to ments the NFL had with other entities. New York City he's going to leave part "Why would you want to do that?" he of his pay check in the state of New was asked. ''We don't let anybody see York, and the City ofNew York. Some these things." states'are already moving in that direc­ "I tried to explain to them that the tion." 0 30 member teams owned all the stock of the NFL and I didn't think it unrea­ sonable for a stockholder to ask to THE BULLETIN 16 ACTL Calendar of Events

1998

May 29-30 June 17 June 26-27 NJ, DE and PA Georgia Fellows Arizona Fellows Meeting Regional Retreat Black Tie Dinner Pointe Hilton Skytop Lodge Driving Club on South Mountain Pocono's, PA Atlanta, GA July 19-21 June 5-7 June 18 Northwest Regional Meeting Ontario and Upstate New Tennessee Fellows Annual Salishan Lodge York Fellows Regional Black Tie Qinner Gleneden Beach, OR Meeting Cumberland Club Niagara-on-the-Lake Nashville, TN August 14-16 Ontario, Canada Iowa Fellows June 18 Summer Meeting June 5-7 Kentucky Fellows Annual Village East Minnesota Annual Meeting Luncheon Okoboji, IA Madden's Resort The Lexington Club ,, Brainerd, MN Lexington, KY August 22~26 Canadian Bar Association June6 June 19 Annual Conference . Maine Fellows Dinner North Carolina Summer St. John's Club House of the Atlantic Meeting Newfoundland House Comdom inum Dunes Club Scarborough Beach, ME Myrtle Beach, SC August 28 Central Ohio Fellows Dinner June 12 June 19 Rocky Fork Country Club Southern California Fellows Florida Fellows Reception and Annual Black Tie Dinner Annual Dinner September 10-13 California Club Buena Vi sta Palace Eastern Chairs Workshop Los Angeles, CA Walt Disney World Village The Greenbrier Orlando, FL White Sulphur Springs, WV June 12 Texas Fellows Annual Meeting June 26-28 September 17-18 Corpus Christi Town Club Northeast Regional Meeting Wisconsin Fellows Fall Meeting Corpus Christi, TX TBD TBD Mont-Tremblant Lake Geneva, WI June 12 Quebec, Canada Rhode Island Fellows September 18 Annual Dinner Illinois Fellows Annual Dinner , ,, TBD Westmoreland Country Club Wilmette, IL 17 THE BULLETIN September 24-27 1999 Western Chairs Workshop August 1-5 • The Inn at Spanish Bay Northwest Reg ional Pebble Beach, CA December 5 Meeting Louisiana Fellows Dinner Coeur d'Alene Resort October 2 TBD Coeur d'Alene, ID Indiana Fellows Annual Meeting February 5-6 October 24-28 Woodstock Club Virginia Fellows Board of Regents Meeting Indianapolis, IN Annual Meeting Philadelphia Marriott The Commonwealth Club Philadelphia, PA October 10-11 Richmond, VA Kansas Fellows Meeting October 28-31 Ritz-Carlton February 25-28 ACTL Annual Meeting Kansas City, MO South Carolina Fellows Annual Philadelphia Marriott Meeting October 24-28 The Cloister 2000 Board of Regents Meeting Sea Island, GA London, England February 27 Philadelphia, PA October 29- November 1 North Carol ina/South Carolina March 12-16 Annual Meeting Joint Meeting Board of Regents Meeting London, England The Cloister The Ritz-Carlton Sea Island, GA Kapalua, Maui, Hawaii November 2-5 • Rome Conference March 7-11 March 16-19 Rome, Italy Board of Regents Meeting ACTL Spring Meeting The Ritz-Carlton The Ritz-Carlton November 19-21 Naples, FL Kapalua, Maui, Hawaii Oregon Fellows Meeting TBD March 11-14 July 23-26 ACTL Spring Meeting Northwest Regiona l December4 The Ritz-Carlton Meeting Washington State Naples, FL Chateau Whistler Resort Fellows Dinner Whistler, Sorrento Hotel April22-25 British Columbia, Canada Seattle, WA TX,AR,MS,LA Regional Meeting October 22-26 December4 TBD Board of Regents Meeting Mississippi Fel lows Dinner San Antonio, TX J W Marriott TBD Washington, DC May6-8 December 4-7 Tenth Circuit' October 25-29 Executive Committee Regional Meeting ACTL Annua l Meeting Meeting El Dorado Hotel J W Marriott Windsor Court Hotel Sante Fe, NM Washington, DC New Orleans, LA THE BULLETIN 18

Committee News Reports

Admission to Fellowship lect information about the prac­ ited number of larger trials or tices of other lawyers' organiza­ arbitrations. However, to assist The Committee on Admission tions in providing subsidies to the Regents in continuing to as­ to Fellowship met during the members in public interest jobs sess this issue, the committee Spring Meeting of the ACTL at for attendance at meetings. To determined to collect informa­ Palm Desert, California. Attend­ date committee members have tion about trends in trial practice ' ing the meeting were Warren identified the California Attor- and to provide that information Lightfoot, Regent, Birmingham, neys for Criminal Justice to the Regents. Alabama; Richard Holme, Den­ ("CACY') as an example of an Finally, the committee dis­ ver, Colorado; Paul Meyer, organization that provides subsi­ cussed its ongoing concern that Costa Mesa, California; William· dies to public interest lawyers for the College encourage greater Edlund, San Francisco, Califor­ attendance at meetings. Paul numbers of women and minori­ nia; Arnold Gordon, Southfield, Meyer agreed to follow up by ties be admitted to fellowship. Maine and Committee Chair Au­ getting more detail as to how the The committee agreed that as a drey Strauss, New York, New CACJ administers its subsidy. regular matter, State Chairs York. Linda Fairstein of New Arnold Gordon agreed to check should be reminded to encour­ York City and Paul Meltzer, on the practices of the American age their State Committee mem­ Santa Cruz, California, although Trial Lawyers Association; and bers to be searching for qualified not present, had contributed their Audrey Strauss agreed to find out candidates for fellowship among thoughts about the agenda prior about whether the ABA White women and minorities. to the meeting. Collar Section and the New York The committee discussed Council ofDefense Lawyers have Audrey Strauss, Chair whether the College should pro­ similar practices. Committee vide a waiver of fees or provide a members and others reading this Alternatives for Dispute subsidy to lawyers working in report are requested to supply Resolution public interest positions. The other examples of organizations The committee met in March committee decided to recom­ that subsidize public interest mend that Regents be alerted to in Palm Desert, California to members. review a proposed outline for the possible existence of a need The committee then discussed to offer a waiver of the registra­ the topics for the Mediation whether the standards for admis­ Standards Project. An additional tion and initiation fees to in­ sion to fellowship should be, .or topic was added to the existing ductees serving in public interest will need to be, adjusted to ac­ four topics. Following the meet­ positions. The committee did not count for a diminution in the ing, the agreed upon topic out­ reach a decision as to whether to number of trials in recent years. lines were circulated to commit­ recommend subsidies for Fellows Warren Lightfoot noted that a tee members, along with a pro- serving in public interest jobs af­ resolution is on file permitting ter their induction. However, the admission to be based on a lim- (Continued on page 19) ~,'' committee will continue to col- 19 THE BULLETIN

(Continued from page 18) United States Court of Appeals Canada-u.s. Committee posed schedule. We hope to for the District of Columbia Cir­ • At the Spring Meeting, the have text for each of the topics cuit). In Swidler the Court of prepared by June. Appeals held that after the death Canada-U.S. Committee re­ of a client in a criminal proceed­ viewed the status of three pro­ Shaun S. Sullivan, Chair ing, a court is to weigh the need jects it has underway, as well as for the priviledged information two projects currently under Attorney-Client Relations against the preservation of the consideration. The three pro­ jects underway consist of the This committee has had a priviledge after death. In that setting, a court may determine establishment of a Canadian Na­ very active and interesting few tion Moot Trial Competition, a months. We continue to view that the need for information out­ weighs the need for maintaining Canadian Code of Trial Conduct the growing assaults on the tra­ and a recommended form of a ditional and time-honored con­ the confidentiality of the attorney-client communication. Convention for the Reciprocal cepts of attorney-client privilege Enforcement of Judgments be­ and confidentiality to be a signif­ The College's position is that there is and should be. no balanc­ tween Canada and the United icant problem. The committee States. was polled, either in person or ing test. It is vital and necessary to promote the candor of com­ At the meeting, the chair re­ by fax, in advance of the College ceived a report from Bob Arm­ meeting in Palm Desert. All re­ munication that a client know that what is said to an attorney strong showing that significant sponded with a resounding ''yes" progress has been made toward on the question of whether we will remain confidential - not only during his or her lifetime - the establishment of a Canadian should recommend a position be National Trial Competition. For taken by the College favoring but afterwards as well. To do otherwise would create an uncer­ many years the committee navi­ the rules upon which we have all gated a sea of difficulties in at­ relied in the past. tainty and chilling effect on .the client that would undermine his tempting to establish ·this com­ The committee also specifi­ petition. cally authorized the Regents to or her willingness to communi­ cate candidly and frankly with Bob Armstrong has been tak­ do whatever appeared to be ing the lead in this arduous task helpful and productive as indi­ counsel. ' The committee also reviewed and the most recent difficulty vidual situations arose, and to has arisen from the failure to take action in support of preser­ a proposed communication to the State Chief Justices regarding obtain effective assistance from vation of our rights and those of the National Association ofLaw our clients with respect to privi­ a proposed revision of Rule 4.2 of the Model Rules of Profes­ Deans. It has therefore become lege and confidentiality. evident that an organization is si~nal Conduct. Our Regent, Earl The College submitted an required which is prepared to Amicus brief in the United Silbert, has transmitted the com­ munication, views and recom­ take on the administration of the States Supreme Court support­ undertaking. Consequently, the ing the Petitioner's position that mendations to the Chief Justices. We will continue to monitor committee unanimously ap­ the attorney client priviledge proved Bob Armstrong's recom­ continues after the death of the ongoing developments in this area, make appropriate recom­ mendation to accept the admin­ client in a criminal proceeding istrative assistance of the On­ (Swindler & Berlin and James mendations and provide reports in the College publications. tario Section of the Canadian Hamilton, No 97-1192, Petition Bar Association in conjunction for Writ of Certiorari to the Carman E. Kipp, Chairman (Continued on page 20) TilE. BULLETIN 20

(Continued from page 19) upon, and with the unanimous mittee on the feasibility of the with a group dedicated to estab­ approval of the committee the first project. In his report Mr. lishing an appropriate memorial draft was forwarded to the Re­ Badgley identified many con­ to the late John Sopinka. gents for their appr6val. cerns that would have to be The Sopinka group is pre­ Following this, the President overcome if such a convention pared to become a partner in the of the College referred the draft were to be adopted. These in­ venture, and will seek to raise to the College's Committee on cluded issues of sovereignty, al­ substantial funds dedicated to Special Problems in the Admin­ location of costs of judicial in­ the competition, which will bear istration of Justice. The commit­ volvement in discovery issues, the name of the Honourable John tee reviewed the exchange of the rules of procedure in discov­ Sopinka. letters between its chair and ery activities, etc. The commit­ At the same time, the staff at Richard Rite, Chair of the Spe­ tee resolved to accept Mr. Badg­ the Ontario Section of the Cana­ cial Problems Committee. As a ley's recommendation that the dian Bar Association, who them­ result of the views expressed to chance of arriving at an accept­ selves conduct and administer the President by the Special able convention is so small that the Gale Cup - a national ap­ Problems Committee, this com­ the committee should not pursue pellate moot court of all Cana­ mittee unanimously agreed that the matter further, at least not at dian law schools - would pro­ any resolution adopted by the this time. vide the administrative support Regents endorsing the Conven­ With respect to cross-border for our competition. The com­ tion should also urge the Presi­ pro hac vice admission, the mittee unanimously agreed to ac­ dent and the Senate to designate, members of the committee who cept the recommendation, sub­ at the time the Convention is are leading this project were re­ ject to the condition that the approved, that it be applicable in grettably unable to attend the National Trial Competition be all states and territories without meeting and this matter is to be held in Ottawa, Canada's na­ variation. pursued further at the meeting of tional capital. It is the fervent Since the Spring Meeting, the the committee in London and hope of the committee that the chair of this committee has re­ Rome later this year. first competition will he held in ported the committee's agree­ the spring of 1999. ment on this point to the Presi­ Jack Giles, Chair The work of preparing a dent of the College. It is the Canadian Code of Trial Conduct hope of the committee that the Complex Litigation has been completed. This work Regents will have time to ad­ The committee had a very was led by Earl Cherniak. It was dress this question as well at the successful and well attended reported to the committee that next meeting of the College. meeting at Palm Desert m the Code has been submitted to The two projects the commit­ March. The committee voted to the Regents of the College, and tee had under consideration continue their work on the Ad it is hoped that the Regents will were a convention for the recip­ Hoc Mass Tort Project even be able to deal with it at the next rocal pre-trial gathering of evi­ though they recognized that to meeting of the College. dence in both countries, and the work on all facets of the project At the meetings of the com­ question of cross-border pro hac at one time would be too great mittee in the fall of 1997, the vice admission. an undertaking. It was therefore form of a Convention for the Committee member Don Paul decided that individual members Reciprocal Enforcement of Badgley conducted an inquiry Judgments had been agreed and made a report to the com· (Continued on page 21) 21 THE BDLLEI'IN

(Continued Ji'om page 20) Federal Criminal International Committee would specify project areas they Procedure Committee • The principal subject of dis­ are prepared to research. These members will report their find­ The Federal Criminal Proce­ cussion at the Spring committee ings to the whole committee at dure Committee, working meeting was future international the next meeting in the fall . through three subcommittees, is projects for the College and the drafting proposals addressing committee. Ralph W. Brenner, Chair three areas of concern relating to There was considerable inter­ federal sentencing: (1) the modi­ est in a proposal to establish an Emil Gumpert Award fication of procedures for down­ International Judicial Academy. Committee ward departure based upon sub­ This would be located in Wash­ stantial assistance to permit mo­ ington, D.C. and would conduct At its January meeting, the tions by any party and the courts; educational programs about the Emil Gumpert Award Commit­ (2) modification ofthe manner in U.S. judicial system for judges tee carefully considered the ap­ which "relevant conduct" is con­ and legal officers from other plications for the award for sidered in sentencing under the countries. Its principal need at 1998. This award is given annu­ guidelines and m triggering the moment is start-up financing. ally to the law school deemed to mandatory minimums; and (3) Once it is actually in operation, have achieved a level of excel­ mandatory minimums and the members of the College will be lence in the teaching of trial ad­ manner in which their application needed to participate in the pre­ vocacy which is worthy of spe­ impacts sentencing. sentation of its programs. cial recognition. This year the Three subcommittees The ·committee is also inter­ applications were excellent. chaired by John P. Cooney, Jr., ested in proposals concerning Each demonstrated a commit­ Terry Philip Segal and Thomas Central and South America, an • ment and dedication to trial ad­ E. Dwyer, Jr. - coordinated International Criminal Court, vocacy training and, in many in­ committee member efforts and and assistance to the United Na­ stances services to the commu- ' are preparing to circulate drafts tions War Crimes Commission. nity through legal clinics. After of the proposals. A report was careful consideration, the com­ presented to the Board of Re­ Thomas D. Allen, Chair mittee recommended that the gents at the Spring Meeting. 1998 Award go to Dalhousie The full committee will meet Legal Ethics Committee Law School located in Halifax, June S-7, 1998 in Washington, The subcommittee for the de­ Nova Scotia. Dalhousie is the D.C. first Canadian law school to re­ velopment of a teaching syllabus The committee continues to for the College Code . of Trial ceive this award. It is the oldest solicit input from Fellows of the Conduct met at the Spring university-based law school in College in the areas under study. Canada and has a strong trial Meeting, as did the Legal Ethics We anticipate the committee will Committee at large. advocacy program. Graduates work with the United State.s Sen­ practice law throughout Canada. The subcommittee continues tencing Commission, the US enate its hard work in developing the The Regents accepted the rec­ Judiciary C9mmittee and the teaching syllabus and hopes to ommendation of the committee Committee on Criminal Law of have the syllabus completed by and the Award will be presented the Judicial Conference in these mid-May or early June. The · to Dalhousie later this spring. important areas of concern. draft of the syllabus will be cir­ Thomas J. Groark, Jr., Chair Robert W. Ritchie, Chair culated to the committee at large (Continued on page 22) THE BULLETIN 22

(Continued from page 21) Mexico Committee judges in the three countries re­ for comments and the final garding each other's legal and work product will be submitted The Mexico Committee con­ judicial system, and cross-border to President Brodsky by August vened during the Spring Meeting dispute resolution, including the 15. at Palm Desert and agreed upon possibility of inviting Mexican The committee's paper on a letter to be sent to a small, lawyers from time to time as Fair Trial of High Profile carefully selected group ofMex­ speakers or panelists at future Cases has been approved for ican lawyers. The letter would meetings; and 4) promotion of publication. solicit their interest in meeting the establishment of personal At the meeting of the com­ with members of our committee contacts among lawyers and mittee at large, the opinion in on an informal basis to explore judges of the three countries. Arce v. Burrow, 958 S.W.2d one or more of the following: 1) We have spent a lot of time 239 (Tx. App. -Houston [ 14th the establishment of an informal reviewing possible contacts in Dist-] 1997), was discussed. group of U.S ., Mexican, and Mexico and obtaining recom­ The opinion focuses upon the Canadian lawyers to meet peri­ mendations from a variety of obligations of lawyers in mass odically and oonsider matters of sources. We have now narrowed tort settlements. The presenta­ mutual interest to the bar of the the list to a small number of tion by our secretary, John respective countries; 2) study names and will proceed as out­ McElhaney, was excellent and and make comments or recom­ lined above. the discussion lively. mendations on cross-border liti­ gation issues; 3) participation in Philip A Robbins, Chair

Murray E. Abowitz, Chair educational efforts to improve (Continued on page 23) the knowledge of lawyers and

Be Prepared

Watch for your registration information in June

October 29 - November 1, 1998 ACTL Annual Meeting London, England

November 2 - 5, 1998 Rome Conference Rome, Italy 23 THE BULLETIN

(Continued from page 22) District Attorney General in held in San Antonio, Texas in • National College Nashville, Tennessee, was pre­ March 1998. Twenty-four teams of District Attorneys sented the "Dean's Award of from across the United States Honor" at the Technology emerged from regional competi­ The Chairman of the Board of Course in recognition of his com­ tion to participate in the finals. Regents of the National College mitment to the improvement of Twelve members of the commit­ of District Attorneys since 1992, the criminal justice system and tee served as judges for the pre­ Thomas J. Charron, resigned his his exemplary contribution to ex­ liminary, quarter-final, semi-final position as District Attorney in cellence in prosecution educa­ and final rounds of the competi­ Marietta, Georgia, to become tion. Mr. Johnson has been a tion. Thos~ Fellows in atten­ the first Director ofEducation of member of the College's faculty dance were: Ried Bridges, J. the National District Attorneys for a number of years and has Thomas Cardwell, David S. Advocacy Center in Columbia, lectured on a wide variety of Cupps, Sam P. Daniel, Jr., Keith South Carolina. The Board of topics. . Gerrard, Andrew Jay Graham, J. Regents selected Michael P. On May 11, 1998, the College Clifford Gunther, Ill, Thomas R. Barnes, Prosecuting Attorney in will present the first trial advo­ Lemon, Robert J. Muldoon, Jr., South Bend, Indiana, as the new cacy training course for local James J. Virtel, Michael A. Chairman of the Board. prosecutors at the new National Williams and Stanley P. Wilson. President William L. Murphy Advocacy Center in Columbia, In addition to the committee has named several new National South Carolina, under contract members, Garr M. King, the Re­ District Attorneys Association withNDAA. gent Liaison, was also present (NDAA) representatives to the throughout and College Presi­ Board of Regents since the last John L. Hill, Jr., Chair dent Ed Brodsky was the Presid­ • meeting of the NDAA Board of ing Judge for the final round of Directors: President-Elect John National Moot Court the competition. R. Justice, Solicitor in Chester, Competition The teams competing in the South Carolina; the Honorable semi-final round on Saturday Jerry M. Blair, State Attorney in The National Moot Court Competition continues to be well morning were Washington Uni­ Live Oak, Florida; and most re­ versity v. Northwestern School cently, the Honorable Nola T. run by the Young Lawyers Com­ mittee of the Association of the of Law of Lewis and Clark Col­ Foulston, District Attorney in lege, and Temple University v. Wichita, Kansas, who replaces Bar of the City ofNew York. We are available to them for support University of Memphis. Presid­ Tom Charron. ing Judges in those rounds were In March 1998 the College as they want, but they did not call upon us. I myself served as a Michael Williams of Colorado presented its first course dealing and Regent David Cupps of with technology, Technology In judge and offered cooperation for the finals . Ohio. The teams from Temple and Out of Court. The treated University and Washington Uni­ subjects related to the use of Sheldon H. Elsen, Chair versity emerged from the technology in managing and op­ semi-finals and in a very spirited erating a prosecutor's office as National Trial trial - and after a rather lengthy well as the use of technology in Competition deliberation - the jury of Fel­ the preparation and presentation lows awarded the final round to of evidence in court. This year's National Trial the team from Temple Univer- VictorS. (Torry) Johnson III, Competition final rounds were (Connnued on page 24) THE BULLETIN 24

(Continued from page 23) Samuel E. Gates ciate input from any member of sity. Those competing in the fi­ Litigation Award the College about discussions, nals for Temple University were Committee 1 proposed reforms or actual re­ Kevin Toth and Bryan Fortay, forms relating to these subjects. and for Washington University, The committee has enter­ Stephen Palley and Rebecca tained suggestions for a recipient Richard C. Hite, Chair Hirselj. The Outstanding Oralist of the Gates Litigation Award, Award was given to Toth of the and met at the Spring Meeting Teaching of Trial Temple University team. held at Palm Desert to discuss and Appellate Advocacy On Friday evening of the those under consideration. A quorum of the committee was The Teaching of Trial and competition, the Fellows were Appellate Advocacy Committee hosted at the Argyle Club by not present at that meeting. Fur­ ther discussions will be held by is pleased to report that the Hubert and Leah Green. Hubert teaching syllabus on civility, re­ has served on the National Trial telephone conference calls so the committee may be in a position ferred to in our last report, has Competition Committee, and in received the approval and en­ fact, participated as a juror in to submi( a propo~ed recipient's name to the Board of Regents for dorsement of the Board of Re­ one of this year's semi-final gents. In the very near future it rounds. approval prior to the October 1998 Annual Meeting in London. will be distributed to state com­ The awards banquet was held mittees to place in the hands of on Saturday evening at the St. Beale Dean, Chair members of the College Anthony Hotel. Each of the throughout the country for use team members who participated Special Problems in in making presentations to law in the finals competition in San the Administration students and young lawyer Antonio were awarded the Louis of Justice groups. F. Powell Memorial Medallion The syllabus is made up of a by Regent Liaison Garr M. King At the Spring Meeting, the series of vignettes that raise ci­ and President Edward Brodsky. Board ofRegents asked the Spe­ vility issues for discussion. Members of the National cial Problems Committee to look These issues conclude with a Trial Competition Committee at current developments in jury strong case for the proposition would like to salute the Texas trial practices and particularly is­ that handling the issue in a civil Young Lawyers Association, the sues such as: 1) note taking by and professional manner results coaches and most of all, the jurors; 2) questioning by jurors in a better outcome for the client participants in the final rounds of of witnesses under controlled cir­ (not to mention a more pleasant the National Trial Competition. cumstances; 3) permitting dis­ professional life for the attor­ The advocates in this year' s cussions among jurors about evi­ neys). The committee urges competition competed with en­ dence before the conclusion of members to use this syllabus as ergy and skill as they ably repre­ the case; 4) mini summations by an easy tool for taking a proac­ sented their respective client. counsel prior to final summation tive role in improving the prac­ Throughout the rounds, each in lengthy trials; 5) interim in­ tice and image of our profession. team distinguished itself with ci­ structions or charges by the court 0 vility displayed to their opposing in lengthy cases; and 6) any other colleagues. issues relating to proposed or actual 'jury reform." James J. Virtel, Chair The committee would appre- 25 THE B"ULLETIN • State and Province Committee Reports

ARIZONA programs each morning. need and deserve their pro bono involvement. The Arizona Fellows will hold Shaun S. Sullivan, State Chair their annual meeting in Phoenix Murray M. Wadsworth, State on June 26 and 27. We will start FLORIDA Chair with a Friday evening western INDIANA dinner, followed by a Saturday The Florida Fellows will hold business meeting with the rest of their annual banquet at the The 1998 Annual Meeting of the day devoted to golf, tennis, Florida Bar Convention on Fri­ shopping, roping and ACTL Indiana Fellows is set for day, June 19, 1998, at the Buena October 2, 1998, at Woodstock bronco-busting (and other Ari­ Vista Palace in Walt Disney zona pasttimes). On Saturday Country Club, Indianapolis. Fol­ World Village, Orlando, Florida. lowing the Indiana State Com­ evening we will head for the now Iran-Contra Independent Coun­ major league baseball park for mittee Meeting Friday morning, sel Lawrence E. Walsh is ex­ golf and tennis events are hot dogs, beer and an Arizona pected to attend this function as Diamondbacks victory over the planned for Friday afternoon, a special guest. followed by a cocktail reception Florida Marlins. The Florida Fellows are in the If anyone is in cool, balmy and dinner. The planned speaker process of forming an Access to is Indiana ACTL Fellow Larry Arizona in late June, please feel Justice Committee, .which is to free to join us. Mackey, one of the lead trial be chaired by Fellow Bob Feagin. counsel for the Oklahoma City Philip A. Robbins, State Chair A written questionnaire has been bombing trials. All Indiana Fel­ circulated to Fellows throughout lows and their guests are invited CONNECTICUT the state seeking their input on and urged to attend. For the last the development of procedures two years, this October weekend Kathleen Eldergill, Garrett M. for the committee. The question­ has provided perfect Indiana au­ Moore and J. Daniel Sagarin at­ naire seeks to identify matters tumn weather. tended the Spring Meeting in that should be considered by the Palm Desert and were inducted committee, screening such mat­ Sherrill Wm. Colvin, State Chair into the College. ters and effecting assignment of them to interested Fellows 'KENTUCKY Also the Fellows of Con- I ' necticut, Downstate New York throughout the state. Liaisons and Vermont are having a Re­ are also being established with The ACTL Kentucky Chapter gional Fellows Meeting at the various Florida public interest Annual Luncheon will be held Princess Hotel in Hamilton, groups to help apply the re­ during the 1998 KBA Annual Bermuda, May 14-17, 1998. Fel­ sources represented by the trial Convention on Thursday, June low Alan Levine is coordinating experience and skills of Florida 18 1998 at The Lexington the event, including the CLE Fellows to the matters that most ' ' • (Continued on page 26) THE BULLETIN 26

(Continued from page 25) or of such a sensitive nature that contact such people as Charlie Club, 170 Esplanade, Lexington, a public forum is truly in no­ Donelan and Max Stern by Kentucky, from 12 Noon until body's interest. The current en­ e-mail if they wish to express 1:30 p.m. The Kentucky State ergy and excitement going into their interest in participating in Committee will hold a meeting ·the program is both a function of our projects. The turn around immediately following. Reserva­ Charlie's approach to the pro­ time is great! tions can be made through State ject, and of the attitudes of the Both projects are receiving Chair Whayne C. Priest, Jr., new Regional Administrative enthusiastic support from the Bowling Green, Kentucky. The Judges - Margaret Hinkle in Fellows, and the State Commit­ I State Committee will consider Suffolk and Stephen Neel in tee has the sense that our mem­ scheduling at least one additional Middlesex. Cases are being iden­ bers are feeling a greater sense social event for the entire mem­ tified by the RAJ s and matched of participation as a result of bership on Barren River Lake on to appropriate Fellows by Char­ projects such as these. a date to be announced. lie. The second project relates to Joan A Lukey, State Chair Whayne C. Priest, Jr. , State the Access to Justice initiative in Chair which each of the states was MISSISSIPPI asked to become involved. Max MASSACHUSETIS Stern (an ACTL Courageous The annual black-tie dinner of Advocacy Award recipient) is the Mississippi Fellows was held chairing the effort, and is already at the University Club in Jackson Massachusetts Fellows are working with such groups as the in December 1997. There was a actively engaged in two initia­ Lawyers Committee for Civil record attendance of approxi­ tives, one with a local genesis Rights to identify cases which mately 80 present. We were de­ and the other one of the ACTL's could particularly benefit from lighted to have present as guests national projects; and we are do­ the wisdom and experience of President Ed Brodsky and his ing them both with a technologi­ senior Fellows. At the same bride, Cynthia, of New York cal twist. time, Max is reaching out to City, as well as Regent Eddie The first project is our media­ Massachusetts Fellows to iden­ Rice, and First Regentlady Patty tion program, which was started tify those among them who are Rice, ofNew Orleans. As Eddie several years ago under the able prepared to participate in this Rice reminded us, this was the leadership of Joe Steinfield, cul­ effort. fourth consecutive year he has tivated under the watchful eye of The "technological twist" is attended the annual dinner ofthe Marty Cosgrove, and now ener­ that my communications as State Mississippi Fellows. Several gized and expanded by Charlie Chair now go by e-mail to all Fellows inquired where in Mis­ Donelan. The program involves Massachusetts Fellows who sissippi Eddie's practice is lo­ making Fellows available to our have private, confidential e-mail. cated, since his attendance is so two largest counties, Suffolk and (Everyone else still gets hard regular. Middlesex, to mediate cases copy through the mail.) This en­ We are pleased that Missis­ which the Regional Administra­ ables the State Committee to sippi Fell ow Swan Yerger has tive Judges of the two counties send out mailings about our ini­ been appointed, and has now identify. The basic criteria are tiatives, and reminders periodi­ served several months, as a that the cases should be com­ cally, to our entire state fellow­ plex, likely to take an inordinate ship. In turn, the Fellows can (Continued on page 27) amount of courtroom time, and/ 27 THE BULLETIN

Hinds County Circuit Judge in ticipated in separate membership and R. Bruce Shaw. • Jackson. We understand that meetings in Cleveland, Columbus The South Carolina Chapter Judge Yerger will be a candidate and Cincinnati during the month has offered its services to the for the position in the next judi­ of April. State Chairman John courts for any pro bono work the cial elections. McDonald attended each of court may consider to be of suffi­ The Mississippi State Com­ these meetings and expects that ciently significant impact to war­ mittee as presently constituted his State Committee will have as rant the College's involvement. has held two meetings and is well many as two dozen prospective into the nomination process for candidates for Fellowship to con­ Jacob H. Jennings, State Chair 1998. We are delighted to learn sider at the April 18 and July 18 that four of our 1997 candidates meetings. TEXAS were nominated by the Board of A social gathering of the Cen­ Regents at the Spring Meeting at tral Ohio Fellows and spouses is The Texas State Committee Palm Desert, California. planned for· August 28th at the has approved and forwarded 11 The annual breakfast meeting Rocky Fork Country Club. Plans new nominees to the College for of the Mississippi Fellows will are underway for a regional submission in the Spring 1998 be held in conjunction with the meeting in Cincinnati in the Ballot. Mississippi Bar meeting at Summer of 1998. The Texas Fellows will have Sandestin, Florida, on July 17. John C. McDonald, State Chair their annual meeting and lun­ The Mississippi Fellows con­ cheon in connection with the tinue to build on and enjoy a high annual meeting of the State Bar SOUTH CAROLINA level of collegiality. of Texas at Corpus Christi, John B. Clark, State Chair Texas, on Friday, June 12, 1998, • The South Carolina· State at the Corpus Christi Town DOWNSTATE NEW YORK Committee will meet May 29, Club; One Shoreline Plaza, 6th 1998 and the South Carolina Floor; 800 N. Shoreline Blvd.; The Fellows of Downstate Chapter will have its Annual Corpus Christi, Texas 78401; New York, Connecticut and Meeting February 25-28, 1999. Telephone: (512) 880-5777. Vermont are having a Regional The Fellows have established Darrell Barger, a Fellow in Fellows Meeting at the Princess an ACTL Distinguished Lectur­ Corpus Christi, is the local chair Hotel in Hamilton, Bermuda, ers Series, which was presented who is coordinating the meeting May 14-17, 1998. Fellow Alan in 1997 and 1998. We are in the and luncheon. Levine is coordinating the event, process of possibly· having a James LaVoy Branton, . including the CLE programs member of the College become State Chair each morning. associated with the Law School so that this course can be super­ Gregory P. Joseph, vised and the students receive UPSTATE NEW YORK Downstate Chair credit. We are in the process of es ~ tablishing a ·· CLE program for On the weekend of June 5-7, OHIO lawyers who are employed by 1998, the Upstate New York the various Legal Aid Societies and Ontario Fellows will hold · Approximately one-third of in Sou~h Carolina. This is spear­ a JOmt meeting at • Ohio's 185 active Fellows par- headed by James B. Pressly, Jr. Niagara-on-the-Lake. Topics for THE BULLETIN 28

discussion by distinguished Relationship Between Trial career was already a model in his speakers from both sides of the Lawyers - A Code of Civility, lifetime and will be perpetuated, border include: Relationship Be­ and Alternate Dispute Resolu- thanks to the numerous commit­ tween Trial Lawyers - A tion. tees which he has chaired and Code of Civility, and Alternate Activities include theatre and the numerous reports to which Dispute Resolution. dinner at the Niagara Commis- he has contributed and which are Activities include theatre and sioner' s Quarters overlooking now part of the permanent dinner at the Niagara Commis­ the Falls. The Ontario Province archives of the Bar of Quebec sioner's Quarters overlooking Committee has several projects and of the Canadian Bar. the Falls. The Ontario Province under consideration including There is good news also. Alan Committee has several projects one on civility to be held jointly Hilton, one of our youngest Fel- under consideration jointly with lows, was appointed to the the judiciary, including one on QUEBEC PROVINCE Bench, sworn as a Justice of the civility. Superior Court of Quebec. Finally, we are pleased to an­ with the judiciary. nounce that the Annual Meeting VERMONT of the North Eastern Region will Earl A. Cherniak, Q.C., Province be held in Mont-Tremblant on Chair June 25th next, under the chair­ Philip J. Kramer, Upstate Chair manship of Regent Michael Quebec was most severely Mone and, hopefully, honour The Fellows of Vermont, hurt by the ice storm which liter­ sponsorship of President Brod­ Downstate New York and Con­ ally paralysed Montreal for the sky. necticut are having a Regional entire month of January, causing As this will be my last report, Fellows Meeting at the Princess financial losses in excess of one I take this opportunity to ex­ Hotel in Hamilton, Bermuda, billion dollars and leaving most press my gratitude to the officers May 14-17, 1998. Fellow Alan Montreal law firms closed for a of the College and to the secre- · Levine is coordinating the event, week and operating half-staff for tarial office for their support and including the CLE programs another two. Hotels were filled warm feelings towards my wife each morning. with families that had been com­ Denyse and myself during my pelled to abandon their homes term of office. ONTARIO PROVINCE due to lack of electricity, lack of heat and lack of basic supplies. Guy Pepin, Q.C., There was no alternative but to Province Chair D cancel the January 15th black-tie Edward J. Tyler III, State Chair dinner, where we expected an i\Fv\J\F\.Jv~v\.. n.f\J\..lu ' .) outstanding number of local Fel­ Has Your Address Changed? ;J New Phone/FAX numbers? ;J On the weekend of June 5-7, lows- as well as Fellows from 1998, the Ontario and Upstate the Northern States - to wel­ Please notify the College office so New York Fellows will hold your mailings will not be delayed or come President Brodsky and Re­ lost a joint meeting at 1 gent Mone. FAX (714) 727-3894 Niagara-on-the-Lake. Topics for We have lost the Dean of or write to: discussion by distinguished Quebec Fellows, Jack Campbell, speakers from both sides of the ACTL Q.C., who died peacefully, at age 8001 Irvine Center Drive, Suite 960 ;J .·) border include: 94, on January 30, 1998. His q Irvine, CA 92618 \.) CCI\..JUL.fl_[Ln__[\...f\...f\JV\.JL(\=:A?