April/May 2005 • Number 151 lawandpolitics.com

Contents

Features TRUETALESOF A LEGEND Miles Lord's judicial legacy is well established, but his friends and acquain- ranees know another side of him: as a hilarious storyteller and inveterate prankster. We collected some of his greatest hits. By David Rubenstein SPECIAL FOCUS: Labor & Employment THEANATOMY OF A FAILED SUPREMECOURT NOMINATION 45 The Case for Background Checks Harry Haynsworth, former dean of William Mitchell College of Law, Mafia ties, illegal nannies and murder convictions are just a few. was on the front lines when the Supreme Court nomination of his things a background check would have dug up - had anyone cousin, Clement, triggered an ugly political battle. The Bush adminis- bothered to run one - in a few infamous cases. tration would be wise to note Haynsworth's experience. By PauLJaeb

L&P WRITERSHIT THE BOOKSHELVES 46 The School District Learns a Lesson Murder, lobotomy and the religious right. These are a few of the Gerald Brenden taught Westonka Public Schools that it's not weighty topics tackled recently in books by L&P contributors. nice to arbitrarily fire old people. By Ross Pfund

SPECIAL FOCUS: Criminal Law Walking the Green Mile How two pairs of commercial litigators from exposed flaws in the legal system and saved Death Row inmates who were just weeks from execution. By Jessica Thompson Departments

Voices for the Voiceless 6 Briefs Local firms spice up ads At the Innocence Project of Minnesota, a team of volunteer lawyers gives hope to the wrongfully convicted. By Katherine Glover 52 People Meet the Forkers The Challenge of GeHing to the Truth Roman courts made men cover a slightly more personal part of the 53 Hearsay anatomy than the heart when they testified. At lunch with Ned Beatty By Judge Lindsay G. Arthur Carol Connolly

SPECIAL FOCUS: ADR 54 All Seriousness Aside Hair Today, Gone Tomorrow Judging the Judges William C. White That's what St. Thomas law professor John Wendt gets to do in his role as an Olympic arbitrator. By Pip Hanson

Getting to Yes After two decades in practice, Marilyn Michales went back to school to Cover photograph by Larry Marcus. learn how to negotiate. By Anna Befort Creative and art direction by William C. White.

LAW & POLITICS April/May 2005 5 TRUE TALES OF THE LE END OF MILES LORD

Collected by David Rubenstein

~ FLOYD BOLINE Boline was in the u.s. Attorney's Office from 1964 to 1968 and in private prac- tice (with what is now known as Chestnut & Cambronne) for 12 years until he was appointed magistrate in 1980. He retired in 1994.

LORD'S SECRET HISTORY OF CRIMINAL ACTIVITY I'd met him before through some political things but never really got to know him until I was hired as assistant US. attorney [1964]. I think at that time there were only six or seven assistants.Now I think there are over 100. So it was a small office. Everybody knew each other. It was like a family. He's got a great sense of humor. When he was the US. attorney and found out he'd been appointed to district judge, he called me into his office and said, "Floyd, come in here. I've got to show you something." He went behind his desk and he pulled out a couple-of-inches-thick package of the labels that are on mattresses that say,"Do Not Tear Off Under Penalty of Law." He held them out and said, "Look what I've been doing, and they've never caught me."

LORD LOVED THE JOB One thing: a lot of people including myself would talk about the pressures of the job. I hadn't been a magistrate for all that long and he told me: the only pressures you have on this job are the pressures you put on yourself When Jim Rosenbaum was going to be appointed US. attorney and he went up to talk to Lord, asking him about the job, Lord told him it was the most fun he ever had without taking his clothes off can't be overstated - Miles Lord is a Minnesota legend. After serving as FROM HERO TO ZERO state attorney general and as US. Just as I was about ready to retire, and he was talking to me about retirement, he attorney in the 1950s and '60s, Lord commented that while sitting on the bench, you get kind of used to all the trappings of was appointed federal district judge, a federal judge and all the accolades you get. He said the courthouse kind of becomes wherIte he wrote landmark opinions on topics the center of the universe, and you tend to think the world revolves around the court- such as civil rights and the environment. He house. You walk down to the mall and lawyers across the street come over and say, "Hi, was the first judge to shut down a major indus- Judge, hi, Judge." Then you find out the day after you retire, you walk down the mall and trial plant over environmental concerns in the nobody crosses the street. They stay on the other side and say,"There goes that S.O.B.!" Reserve Mining case, and is known for his work on the Dalkon Shield litigation in the '80s. Judge Lord, 85, hasn't only had an effect on ~ KARL L. CAMBRONNE the law, however. Throughout his career, he's Chestnut & Cambronne inspired his clerks, assisted those before him in court and made everyone laugh. We share some THE CATTLE CALL: A METHOD TO HIS MADNESS of their stories here. I have appeared in court and known him ever since I was a baby lawyer back in 1974, and I appeared before him frequently. There were things he did that were sort of

10 Apri I/May 2005 LAW & POLITICS classic Lord. An example would be THE REAL MILES LORD he would take all the cases in the fifth He was a very warm person. He division, up in Duluth, that he had on liked people. He would do anything his calendar and note them all on the for you. I can't think of a guy in that same day for trial. He might have 50 U.S. Attorney's Office when he was cases. A larger number anyway. You'd there and I was there that didn't like get this notice, appear for trial on him. Really like him.And love to whatever date it was. And you'd go spend time with him, and loved work- up there and the room would be full ing for him, because we just had tons of lawyers. Of course this was his of fun. He could get you laughing no method for settlement. Once you matter how down in the dumps you started to understand the method in were over how a case was going. his madness - this was in the nature of a cattle call and a discussion of set- MILES AND THE-MAN-WHO- tlement, and not necessarily a trial - THOUGHT-HE-WAS-HUMPHREY you would prepare for that. Then Lord shares a serious moment with Robert Kennedy in 1961 He had a lot of fun with he'd take you into chambers, you and Humphrey, and Humphrey had a lot your opponent, and give you his views on why took him less than two hours to walk from the of fun with him. One time they were up in the this case ought to be settled.And of course he courthouse to Dayton's. If it took less than two Boundary Waters and they get to one place had hanging over your head the fact that you hours for him to transverse those two blocks, he where there is a small bus to take people were called for trial today, you'd better be ready figured his currency was dropping because not across this portage. So Humphrey was off mon- to go.And that would have the effect of cutting enough people were stopping him to glad-hand keying around with his gear or something, and down his calendar dramatically. him. That was his Humphrey's litmus test. Miles gets on the bus and tells all these people, who are from all over the country, that there is DOUBLE THE JURY WHILE HALVING DID HE EVER FORGET A NAME? a guy up here in the woods who wears a lum- THE COURT'S EXPENSE But I can remember his going-away party, or berjack shirt and he looks like Humphrey and I would say Miles Lord also understood retirement party, whatever it was. It was a big, he sounds like Humphrey, and he kind of kind of a big picture in terms of the costs of lit- big deal at the Leamington Hotel, which would- thinks he is Humphrey. He's going to jump on igation, both on plaintiffs' and defenses' side. make sense, owned by Bob Short. I can still this bus in a few minutes and say,"Hi! I'm For the International Rectifier Antitrust litiga- visualize the figure of him walking through the Senator Humphrey. Glad to meet you all!" tion there were two cases involved and lots of lobby of the Leamington Hotel, and there were Humor him a little. big-name defense counsel. But he actually had hundreds of people, well-wishers, lawyers from Well, it worked perfectly. They were being built in his Minneapolis courtroom two jury in town, from out of town. Just a whole bunch of very condescending to him. And it just drove boxes. So essentially the same evidence that was folks. And he would go from one group to Humphrey nuts. being considered could be heard by two juries another, know everybody's name, thank them Another one I remember: He and Humphrey at the same time. And there wouldn't be a need for coming.I mean he was so well connected. So were on the St. Croix, out on this boat, going to go through a very lengthy trial two times. visible. I just marveled at his ability to go down to Prescott or someplace, to have lunch That was just a remarkable bit of creativity at through what seemed like a thousand people and then come back. This was after Humphrey the time.I've not heard of it before or since. that day and talk to everyone, and know who he had lost the election in '68 and was teaching at was talking to, recall their names and events. Macalester College, but rumors were floating A JUDGE WHO DIDN'T SIT IN SILENCE around that he was going to run for senator. He also had a tendency to be very proactive So Miles starts telling Humphrey that he during trials. Questioning people, that sort of ~ J. EARL CUDD shouldn't run, because he'd been out of office and thing, to the point where people accused him of The Honorable J Earl Cudd, magistrate district people didn't remember who he was. All this sort obviously leaving his bias before the fact-finder judge, District of Minnesota, still works a couple of of thing. And Humphrey is objecting, insisting he jury. But he was not at all shy about doing that, days a week. Magistrates are assigned to specific is still very well known. And blah blah blah. and he did it perhaps more than most. It's a judges, and Cudd was assigned to Judge Lord dur- So Miles says, "I've been out of the public touchy issue in that you don't want to, shall we ing much of the time he was a full-time magistrate. eye for a long time too. But I'll bet as we're say, color the case for purposes of the fact find- floating down this river that more people will er. But that was his M.O. for a long time. And MILES AS OVERSEER IN THE U.S. say hello to me than will say hello to you." the court of appeals, when he strayed too far, AnORNEY'S OFFICE SQ they get down the river a little ways, and cut him back. The office was not very big then. Counting here comes a boat going by. And it's,"Hi, Miles! Miles, and if we were at full strength, there were How are you!" and "Hi! Hi, Miles Lord!" SENATOR HUMPHREY GIVES MILES HIS only seven of us. It was a great place to work, and And pretty soon a little farther down, anoth- LITMUS TEST FOR POPULARITY he was a great guy to work for, because he wasn't er one. Same thing. And Humphrey - I wasn't He was a great storyteller - in chambers supervising you and putting you under a micro- there, so I can't testify to the truth of this, but I and out. Very cordial. I remember him talking scope. He just kind of turned you loose and if you believe it to be true - Humphrey was getting about , then senator, who needed help or wanted advice, you could talk to pretty wild about this, because he figured he would sometimes come up to the chambers to him, and he'd give it to you Otherwise, you were couldn't have faded that far from the public. He talk to Miles. The courthouse was then on 110 kind of left on your own. He didn't have a big ego. is getting really nervous about it. Finally the South 4th Street. One day he was up talking to He was just fun to work for, because you could judge broke down and told him to look over the Miles, concerned about his political fortunes. learn by your mistakes and he wasn't looking side of the boat. And there Miles had hung a What raised his concern was that recently it over your shoulder all the time. sign that said,"Say hello to Miles Lord."

LAW & POLITICS April/May 2005 ~ MILES LORD

~ SUZANNE LAUKKA told me he was a worker at, I think it was the vet- when he was sitting over the Dalkon S Laukka became Judge Lord's secretary - that was erans' home. One of their residents had gotten cases. Have you found the speech he gave her title - in 1976 and she remained in that posi- downtown and apparently had some memory those guys? One of the things that led up tion until Lord left the bench in 1985. Currently problems and was lost. And Judge Lord, being that was literally the judge and his two cler Laukka works for Judge Diana Murphy. Judge Lord, was talking to everybody that he met Roberta and I, being flown to Virginia to si along the way, and he talked to this fellow and fig- on some discovery hearing that actually to SINGING IN THE BRAIN ured out he didn't know what was going on. So he place at AH Robins headquarters. He came into the office, as far as I know, talked to him enough to figure out where he Can you imagine AH Robins consenting every single day but one, whistling, singing or belonged. He called [and told] the veterans' home have Judge Lord come in? They consented to humming. And usually just about when he to be on the lookout for him. And he put the guy It was part of a discovery dispute, and the jud passed in front of my desk, he'd go, "Let's see on the right bus, told the bus driver to make sure said, "Well, why don't I just come out there III those fingers fly!" or "Let's hear those keys where he got off, so he could be met at the other sit in on these hearings?" clicking!" Some sort of enthusiastic thing about end. And he never said a word about that to me. They were fighting over attorney-client pri getting into the day. ilege and documents that were in dispute.And I EVERYONE'S OPINION COUNTS had Roberta and me go in and start to revie FAMILY AND FLAREPENS Secretaries are sort of background people these documents. And of course it was a treasu When he hired me, he told me there were and don't always feel a part of what gets accom- trove of information available about the histo only two things I could do that would make him plished. But when I worked for him, I really felt of the IUD and all the things that had goi angry at me. One was not keep him sup- wrong, and ail the claims that they h, plied with flare pens. And the other was about it. Eventually that, among mal to do anything to irritate his family. His things, led to the view that led to h wife and his kids were tops in his book. famous Dalkon Shield speech. (Editoi He sort of had a rule. If the family called, note: visit L&P on the Web at lawandpo and he was in court, if they wanted to itics.com for a transcript of the speech.) talk to him, I was absolutely to come and get him out of court. They'd take a quick HE KNEW HOW TO GET PEOPLE'S recess at that point. ATTENTION He had a passion for the law and fo NO ONE OUTWORKED MILES people - that is what I remember th He was determined that nobody, most about working with him. What pee just because they were a big company pie might not know was that the passio and could hire a gazillion attorneys and and the drama of these disputes wer paralegals and investigators, was going something he lived in and with, an to outwork him, when it came to getting something he knew how to capture in hi to the end point where justice was opinions. Clerks would always do the firs done. He would get up early. He would draft. Then they would work with tht work late. He would work weekends. judge. People think that he didn't care This didn't happen too often, but a cou- much about a case as what his opinioi ple of times he called me at 5:30 in the said. But the fact of it is he really did can morning, when I was still sleeping. He'd about how these opinions would bt say, "Oh, Suzy, I just had to work on drafted, and whether they would be this, and I'm already at the office. Can drafted in a way that would really cap you come in early?" ture people's imagination and attention He is a more creative person that wa; NO BRAHMINS. NO UNTOUCHABLES that whatever I could do was important. We than what he might be given credit for. So when He wasn't tied into class. I don't think he felt were actually doing some good for real people, we went through that opinion, he changed it ill just because he was a federal judge he was bet- not just complying with rules. And he did talk ways that really made it much more engaging. ter than anyone else. He would go to lunch with about cases, and we all had our chance to throw us. Frequently. And occasionally when he had our five cents in. We felt like we were welcome QUICK!I NEED SOME SNOOSE lunch with someone, he would invite us, the sec- to. It wasn't just for show. He actually wanted to He just had a way of joking and enjoying retaries or the law clerks, to join. I know one of hear what we said. himself.Sometimes during a big trial you would my favorites was he'd invite us to join him when be there, all the lawyers would be there, and he went to lunch with Eugene McCarthy. I think there was this great courtroom drama - and Gene McCarthy said something to the effect ~ KEITH J. HALLELAND suddenly he would motion you to the bench. that they didn't dare not be good friends. They Keith Halleland, who grew up in Iowa, is one of Everyone would be watching him, and then of always had to keep an eye on one another! the founding partners of Halleland Lewis Nilan course watching you come up to him.And & Johnson. He clerked for Lord from 1982 to you'd lean over and he'd whisper into your ear. MANY GOOD DEEDS UNTOLD 1984. He and Roberta Walburn were Lord's Of course' everyone is wondering, "What is he Some people think he is just sort of a show- clerks on the Dalkon Shield cases. saying?" And what he was saying is that he boater. Had to be in the limelight. But that wasn't wanted you to go next door and get him some really always the case. One afternoon somebody UNLOCKING THE TREASURETROVE chewing tobacco.Yeah, there was a spittoon up called me and wanted to pass along thanks to the Probably one of the most remarkable expe- there in those days. And sometimes he would judge. And so I said, "Thanks for what?" And he riences in my life was being clerk to Judge Lord lean down and use it.

12 April/May 2005 LAW & POLITICS ~ MILES LO

DRIVING WHAT THE VOLK DRIVE STRONG FEELINGS ful sense of humor, but he is serious and thought- What he drove the whole time 1 knew him Now that 1 am a judge, 1 realize how difficult ful and a deeply caring human being - ah, man. was a Volkswagen diesel Rabbit. Can you imag- a job he had, and how well he did it. He feels so He was a different kind of public servant ine the chief judge of the federal district court strongly about things.He really has strong feel- because he listened to his own drummer. driving around in a diesel Rabbit? And they ings for people. And it got to be just killing him were hard to start. During the cold weather he to sit up there as a judge and try to remain MILES THE TERRORIST had it plugged in from the parking lot. And impartial. Because it is not in his nature. He just He was very creative in his practical jokes. everybody knew that was Lord's deal, that he feels too strongly for the cause. For him to be There was a canoe trip up near Park Rapids had a line running out from the courthouse. One impartial and neutral had to be awfully difficult. somewhere. They were talking around a camp- time he asked me to go start it and move it. And He fought a battle to maintain judicial tempera- fire. It was dark out, and they were talking about the FBI guys are standing around down in the ment, and he lost that battle a couple of times. the dangers of being out there alone and what lobby and 1 walk out, and I start this old diesel could possibly happen to them. Then apparently Rabbit and move it. But 1forgot to unplug it. So SHOUTING ABOUT NAM everybody started to get a little scared and Miles there 1 am driving in the parking lot, in his car, After 1 graduated from college, I went into the slipped away and reappeared in Indian garb and with this electrical line. And everybody was military. 1was in ROTC and went to Vietnam and with war paint, hollering at them. That's a typical looking on and laughing. 1 had to tell him, of served in Vietnam. In fact, 1 took the law school example of what he might do. course, and he just thought it was really funny. admissions test in Saigon. After 1 came out of Vietnam, I went to law school and came to work SEND IN THE MARSHALS for the judge. That is when they were doing a lot of ~ REBECCA L. ROM The U.S. marshals were there in the court- draft resistance, a lot of trials and sentencing of Rom clerked for Lord from 1977 to 1979. She is house and would come to his aid in the event people who had resisted the draft. The judge was a partner at Faegre & Benson. that anything would happen in this courtroom. fairly lenient with draft evaders and draft dodgers. Behind his bench there was a button he could Needless to say, 1 had a little different opinion of A MOST UNUSUAL JOB INTERVIEW push which rings a buzzer in the marshal's that. 1 believe it was in the first week that 1 was The way 1 got my job is a funny story and typi- office, in the event of an emergency. He would there, he sentenced somebody and 1 didn't think it cal of Miles. In the fall of my last year in law school do that just for fun to see whether they would was an appropriate sentence, and 1told him 1didn't. at William Mitchell, the judge's current clerk, a fel- show up. He would do a fire drill just for fun. And he told me why he did it. We got into a real low named Lew Remele, called me and said I need- And the marshals would come rushing in and he good shouting argument. 1 thought to myself, ed to interview with the judge. But the judge was in thought that was just the funniest damn thing. "Well, I've just screwed up my legal career.Here 1 the university hospital and 1 was supposed to call am yelling with a federal judge." And after we both him in his hospital room and set up a time to come calmed down, he said to me, "Okay. 1 understand over to interview for the job of replacing Lew.This ~ JOHN Q. MCSHANE how you feel. I appreciate your position. You will was, I'd say,late November, early December 1978. Since 1998 McShane has been a judge with the 4th not have to work on any of these cases." Because Just after the presidential election. So 1 called his Judicial District Court, State of Minnesota. He is a the clerks split the cases, there are two of us. "You room, and a man answered the phone, a booming founding partner of Bowman and Brooke (1985). don't have to work any of those cases, and 1respect voice: "Hello, Jimmy Carter!" I was speechless for a your position." And we got along marvelously after moment. Then I said, well, this is Becky Rom and THE AnACK OF THE ROnEN S.O.B.S that. 1 consider him to be a good friend to this day. I'm calling for Judge Lord. The man on the other Periodically we would go sit in Duluth. end of the phone said,"Oh, I thought you were There were other courts in Fergus Falls, federal LORD THE INNOVATOR Jimmy Carter calling from Plains, Georgia, asking courthouses. You would go up and you would sit Another case he had was an antitrust case me to join his administration." in those cities and hear cases. When we would go brought by the government and others, regarding That was the first time 1 ever spoke to the up there, the judge would take his staff and his the antibiotic tetracycline. That's where he had judge. So 1 went in for the meeting. And I go to law clerk, and we would always end up going to two juries empaneled at the same time. I don't his hospital room and I knock on the door, and Crosby, which is the judge's hometown. I know if anyone has ever done it. And there were 1 hear the same voice inside the room talking. remember being in Crosby when we went into other innovations. It's interesting. 1was just at this And he was trying to convince his nurse that he the American Legion Hall where they were judicial meeting and they were talking about had something called Guillain-Barre Syndrome. playing bingo. It was the judge and Mrs. Lord "innovation": You can set up the courtroom so It was the side effect of some flu shots. People and probably his clerk. And we walked in, in this that when the lawyer approaches the bench and don't hear about that affliction very much. It big group, and the place just went silent. they are having a conference, you can have music. happened to be in the news right at that time. Because, you know, strangers! You could just see He did that 30 years ago, when I was there.He He was saying to the nurse, "I didn't move from the buzz go through the crowd. Who is that? Oh, had that set up so that when the lawyers would 10 o'clock last night until 6 o'clock this morning, that's Miles Lord. So it was, okay, he's one of us. approach the bench he would turn a switch and so I'm convinced I have Guillain-Barre So we are in there playing bingo, having din- there would be music in the jury box, and the jury Syndrome." 1 think it paralyzes you. He was just ner, probably a beer or two. And we walk out, we couldn't hear what the lawyers were saying. pulling her leg. He was sleeping. So I came in are walking down the street to our cars. And there and introduced myself and had my interview are these three or four guys across the street. And with the judge. But he was the ultimate jokester. Miles goes, "You rotten S.O.B.s, what are you ~ WALTERMONDALE Loved to pull people's leg, in a good-natured doing here? Get your ass out of town!" Or some- Former Minnesota senator and vice president of the way. He did that all the time. thing along those lines. So these guys start coming , currently with Dorsey & Whitney. over to him, and I'm thinking,"What do 1 do? MILES PANICS THE MINNEAPOLIS CLUB Stand in front and take one for the judge? Run?" THE ONE AND ONLY The judge continued to pull people's legs but And as soon as they get close enough to see, they Miles is one of the most remarkable human never on the bench. But he was very impish. say to him, "Aw, Miles, you son of a gun." beings I've ever worked with. He has a wonder- Sometime in my stretch there, Hubert Humphrey

LAW & POLITICSApril/May 2005 ~ MILES LORD

died. And Muriel was appointed to replace him I said, "Yeah." ~ ROBERTA B. WALBURN for the duration of his term as senator. The He said,"Okay. Start in June." And he hung Walburn, a former reporter for the Star Tribune Minneapolis Club had always provided an hon- up. That was it. I hung up the phone and my and former legislative aide to Sen. Paul Wellstone, orary membership to the two U.S. senators. But wife says,"Who was that?" is currently of counsel with Robins, Kaplan, the Minneapolis Club was a single-sex institution I said,"Well, it was either Phil or it was Judge Miller & Ciresi. She clerked for Lord during the at that time - male only. So there was a little bit Lord from Minnesota, in which case I just took a Dalkon Shield case, from 1983 to 1984. of controversy in Minneapolis.What was the job." So I guess you could say when Miles called, I Minneapolis Club going to do? Were they going thought it was just Phil giving me a hard time. But LAW AND JUSTICE to extend this honorary membership to Muriel? it was Miles giving me a hard time! I realized I was What sticks in my mind is that he was incredi- And of course they graciously did. Well, the day in for something interesting. bly energetic. His mind was always going. He was after that was announced, the judge called me always thinking about ways to approach cases. The into his chambers along with Su Laukka, and he FULLY FORMED IDEAS ONLY, PLEASE bottom line, what made the biggest impression on said, "I want you to be Muriel Humphrey. And He was very good to work for. Very respect- me and what ultimately led me to decide to try say exactly what I tell you to say." ful. Very professional. But still, very quick.He and practice law was that he was always focused Well, it's your boss. You don't say no. So we was not the sort of person you would go to and on justice. It sounds kind of corny, but sometimes had Suzy call up the Minneapolis Club, get the say, "I'm sort of thinking about this," or "What that can get lost in the shuffle of practicing law.He switchboard, and connect through to the athlet- do you think about that?" You had to pretty wanted to make sure he did whatever he could to ic facilities, which were managed by a man who, much have in mind what it was you were think- achieve justice. Sometimes at great personal sacri- as it happened, had grown up with Miles. They ing about before you sat down to talk to him. fice to himself. He was not afraid to take on issues were childhood friends. Suzy finally got He wasn't one to sit down and brainstorm with that needed to be taken on.He was not afraid to through to him and said,'Would you hold, you. You were supposed to do the brainstorm- take on the establishment. He was very coura- please, for Senator Muriel Humphrey?' So then ing and then come to him. Then we were sup- geous. He had incredible instincts about what was I got on the phone. This is what the judge had posed to come back with completed thoughts. really going on, reading in between the lines. me say. I said, "Hello, this is Senator Humphrey. I'd like to come over for a swim and a rubdown. JUDGMENTS COUNT, BUT SO DOES THE A JUDGE WHO TRUSTS HIS INSTINCTS I just want to make sure the facilities are ready REASONING BEHIND THEM The Dalkon Shield cases had been pending for me, because I'll be there shortly." I'm not sure people give him credit for this, in courts around the country for years before Well, he stuttered and stumbled, and I kept but he was always of the view that when citi- Judge Lord got involved. There had been a talking to him. He was nervous. You know how zens came before the court, and he gave a judg- multi-district litigation (MDL) proceeding, some people are? They don't know if it's for real ment, that they should have the reasons for it. where they consolidate cases from around the but they don't want to take the chance? In any And that he needed to be able to explain those country, and they do discovery, getting docu- event, we had him going for a while until finally reasons so that they could understand them - ments and taking depositions, and then they he said: "Yeah?Miles? Miles? I know you're and then agree with them! A lot of times he send them back to the jurisdictions they were behind this!" He gets on the speaker phone and gave decisions some people didn't necessarily originally filed in for trial. There were thou- we all burst out laughing. So we had those kinds like, and he wanted them to know the reasons sands of Dalkon Shield cases filed all over the of very unusual clerkship experiences. for that too. I don't mean to criticize other fed- country. And there were more cases in state eral judges, but sometimes judges just sort of court in Minnesota. I'm just talking federal decide and don't give extensive reasons.He cases. But obviously trying one case at a time ~ PETERN. THOMPSON would always want to be sure there were good was not going to get this litigation done. And the Thompson clerked for Lord during the Reserve reasons, that he explained. Robins law firm, which at that time was Robins, Mining case.He currently is a professor of law Zelle, Larson & Kaplan, was representing a at Hamline University School of Law. DON'T PUT OFF UNTIL TOMORROW number of plaintiffs in Minnesota. They had My first day in court, there was a strike at a been asking judges to reopen the discovery, A SHORT AND SWEET JOB OFFER mine up north. And he held court all night, until because they didn't think the MDL discovery I went to the University of Michigan Law 2 or 3 in the morning. We were just going to stay had gotten all of the relevant documents and School and then went right to the Twin Cities.I there until all the proofs were in, so he would information. Other judges would not grant that wanted to work for a federal judge. My room- give the ruling. He was going to get it resolved motion. Because typically that is what the MDL mate was from Minnesota and he had told me that night. That broke me in early. Then the does. It is supposed to get the discovery done a little bit about Judge Lord. But I didn't really next day we drove up to Duluth because he had expeditiously and then send it back. But when know him. I soon learned he was unique. When a calendar up there. they brought that motion in front of Judge I came out here, his son-in-law was doing the Lord, he granted it and reopened the discovery. interviewing for him. He was fishing or hunting MILES KNEW EVERYONE Because his instincts told him that - no matter or working in the library or whatever. So I did- I saw his practical joke side too. I think the how fine the MDL judge was, and there was this n't actually meet him when I came out to the first time I went up to Duluth with him he had great MDL judge in, I think it was Kansas City, interview. And about two weeks later I got a this rubber snake he was pulling out, frighten- no matter how good the plaintiffs lawyers were phone call and this raspy voice said, "Peter?" ing the waitresses. That's the most remarkable in the MDL, and they were good lawyers - "Yeah." thing about him. You couldn't go anywhere because of the actions of the company, they had "This is the judge." with him, up an elevator, lunch, where he not gotten to the bottom of what had happened. I thought it was my friend, Phil, from law wouldn't connect with somebody. The waitress. And that more discovery was warranted. So school. I say, "Okay." Somebody in the elevator. He either knew Judge Lord reopened the discovery. Which "This is Judge Lord." them or their father. Or somebody they worked meant a tremendous workload for him. He "Okay." with.And have some story to tell them about it. appointed special masters to go down and "Well, don't you want to come work for me?" He really did connect with people. supervise document discovery.He himself got

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on an airplane and went down to Richmond ment out of - about $300-$400 - by a certa to preside over depositions because the date or she would go to jail. So the deadln deponents were not being responsive. came and went and she never paid.Tb And he forced more documents to be brought her in again and Judge Lord gave h produced. Depositions of the highest offi- a new deadline. She said, "I'm not going to e cials in the company to be taken. All of this it." So the new deadline came, and right befo in a very compressed schedule. it passed, some law firm in Minneapolis pa And it worked. The discovery is what the taxes on her behalf. Now 1have no perso ultimately broke the Dalkon Shield cases a! knowledge of where that money came fror wide open. The documents that were pro- but I have my suspicions. duced. The depositions that were taken. They ultimately led to a famous deposition LORD AS STORYTElLER that Mike Ciresi actually took of the former There was a case involving a min general counsel of AH Robins, who testi- farmer in Minnesota in, 1 think, 1969. Tl fied that documents had been destroyed at Lord always had a prank in store for hunting problem with mink is that if you scare th the company. That's what broke the litiga- buddy Hubert Humphrey hell out of them, they get panic stricken all tion wide open. Within about a year the eat their young. The U.S. Air Force flew company went bankrupt. And bankruptcy pro- depends on where you drop the rock." The judge plane over the farm, broke the sound barril ceedings were established to compensate the asked the guy the same question again after 60 and the mink became distraught and destroye women. It was a characteristic Judge Lord days, and the guy said no - prison had a signifi- themselves. The mink farm brought a feden move. Seeing something that on the one hand cant effect on him. So he had crude tools to work court claim against the government, and Milt sounds so simple, but it took someone with his with, but they may have worked pretty well. had the case. He gave the farmer damages ( instincts to know this is what needed to be $40,000. While that first case was pending, tb done, and he was going to do it. mink farmer had gotten his mink farm goin ~ MIKE WOLFF again, and the Air Force flew another plan I WAS IN COURT WHEN HE GAVE THE Wolff clerked for Lord and is currently the chief over tbe farm, broke the sound barrier and a DALKON SPEECH justice of the Missouri Supreme Court. the mink ate their young and destroyed on It was a very powerful moment. It was another again. So the second case came up, an extremely quiet. People were hardly breathing. THE BIG QUESTION the young lawyer that came out from the Justic And there were a number of women in the 1 went down and interviewed with him for Department was sitting there and Judge LOIi courtroom who were crying, who had been vic- his clerkship. I was working at the Minneapolis said, "Let me tell you a story. Up in my horne tims of the Dalkon Shield. Star at the time, going to law school in the day town there was a circus that came to town ever and working as a reporter at night. He called up year. And the circus had a great big elephanl my editor and asked him if 1knew how to write, The elephant really didn't do anything, it wa ~ MIKE STEENSON and then he called me up at work and said he old and stubborn. They had a contest when Steenson clerked for Lord and is currently a had a hot tip for me, and would 1 like to come anybody who could come up in front of the ele professor at William Mitchell College of Law. and interview with his clerkship. phant and make it nod its head would get fre tickets to the circus. So all the kids lined up ani A FINE LINE SYMPATHETIC TO ANIMAL LOVERS waved and the elephant just stood there ani I remember watching a case before 1 started There was a case involving a guy who had didn't do a damn thing. One kid came u]; started working, a civil rights case. Judge Lord shipped his dog on a commercial airliner. looked the elephant inthe eye, picked up tWI was having real problems with a witness, a psychi- Somehow the luggage compartment lost pres- bricks, went around behind and banged the ele atrist. Every question the lawyer would ask, the sure and the dog died. And this poor fellow phant in the balls. So he won the free tickets. psychiatrist would say,"Well, there's a fine line came out to the airport and had an ax or a big "The circus comes to town the next year - between this and that." As he was being ques- sledgehammer and he went and banged a hole same elephant, same contest. This time they sail tioned 1 saw the judge sliding closer and closer to in one of the airplanes. So they charged him you have to make the elepbant nod his head him. Finally, the judge said, "There's a fine line with a federal offense. The government was very then shake his head. Finally, the same little kit between where you're at and contempt." After serious about this, of course.But Judge Lord came up to the elephant and said, 'Remernbe that the psychiatrist was really helpful. acquitted this guy on the grounds of temporary me?' The elephant nods. 'Want me to do tha insanity. Because, you know, they killed his dog! again?' The elephant shakes his head." WHERE TO DROP THE ROCK Judge Lord said, "Now you go and get OJ In one case, a U of M student had been caught MILES LORD: ANONYMOUS DONOR? the phone and tell your superiors at the Justio with marijuana. Judge Lord was all set to sentence During the Vietnam War, this woman, a peace Department that story and see if we can settk him to a probationary period - he would have activist, had declared 10,000 Vietnamese depen- this case." He made the phone call and cam: had the conviction expunged. And so the guy dants on her income tax return.She was prosecut- back with another $40,000. LBrP came in at sentencing and the judge asked, "If I ed for tax evasion. The government wanted to put you on probation, are you going to stay away make an example of this woman, so it was very from drugs?" The guy said, "Well, I'll probably contentious. They tried the case and it was rea! FOR MORE JUDGE LORD smoke some pot over on the West Bank down by clear that the young woman was a saintly person, Visit Law & Politics on the Web this month the river." And the judge said,"I hereby sentence but the jury found her guilty. Judge Lord, I know, at lawandpolitics.com to read: you to five years in prison." Afterward I said to couldn't stand the thought of putting her in jail. He ~ Judge Lord's famous Dalkon Shield the judge,"That's like trying to build something put her on probation on the condition that she had speech, given in court on February 23, 1984. with a rock instead of a hammer." He said,"That to pay her taxes that she had cheated the govern- • More stories about Judge Lord.

LAW & POLITICS April/May 2005