Brady V. Maryland and Its Legacy Page 8 Should Attorneys Be Required to Report Pro Bono Hours? Page 12 the New Servicemembers Civil Relief Act Page 22 Brady V

THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2006

IN THIS ISSUE Brady v. Maryland and Its Legacy page 8 Should Attorneys Be Required to Report Pro Bono Hours? page 12 The New Servicemembers Civil Relief Act page 22 Brady v. Maryland and Its Legacy—Forging a Path for Disclosure

B Y M AITRI “MIKE” KLINKOSUM AND B RAD B ANNON

ohn Brady was 25 years old

when he was arrested and

charged with first-degree mur-

der. He had bounced around

Jfrom job to job and engaged in an affair with another man’s wife, Nancy Boblit Magowan, and was dealing with the fact that she was pregnant with his child. On

June 22, 1958, Brady gave Nancy a post-dated check for $35,000 and told her he would have that amount of money within the next

Bruno Budrovic/images.com two weeks.1

Along with Nancy’s brother, Donald friend named William Brooks. Late on June move it. At that point, either Brady or Boblit Boblit, Brady and Nancy conspired to rob a 27, 1958, Brady and Boblit placed a log hit him over the head with a shotgun, placed bank. To pull off the robbery and make a across the road near Brooks’ home and wait- him in the backseat, and took his wallet. clean getaway, the two decided, at Brady’s ed for him to come home. When Brooks Brady then drove to a secluded field where suggestion, to steal a car from a mutual drove up to the log, he got out of the car to he and Boblit walked Brooks to a clearing at

8 SUMMER 2006 the edge of the woods and one of the men Brady should receive the death penalty.9 ity” that disclosing it would have changed the strangled Brooks to death with a shirt.2 After the Maryland Court of Appeals outcome of the proceeding. In other words, a After their arrests, Brady and Boblit both issued its ruling, Brady petitioned for certio- “reasonable probability” is a “probability suf- gave several statements to law enforcement rari to the United States Supreme Court. He ficient to undermine confidence in the out- in which the facts changed from one state- sought a new trial on both guilt and punish- come” of the trial.15 ment to the next. However, Brady consis- ment. The Supreme Court affirmed the rul- Since Brady, exculpatory evidence has, in tently denied the actual killing of Brooks and ing of the Maryland Court of Appeals and fact, come to be known and referenced by maintained that Boblit had strangled Brooks held that the “suppression by the prosecu- criminal law practitioners as “Brady materi- with a shirt. Boblit also gave a series of state- tion of evidence favorable to an accused al.” Also during that time, the United States ments to the police and, in all but one of upon request violates due process where the Supreme Court continued to expand and them, he claimed that Brady was the actual evidence is material to either guilt or to pun- clarify the definition of Brady material and killer of Brooks.3 ishment, irrespective of the good faith or bad the scope of the prosecution’s duty to dis- The key confession at the heart of Brady faith of the prosecution.”10 close it. For example, under the original v. Maryland, was Boblit’s fifth statement, In so ruling, both the Maryland Court of holding in Brady,16 the defense was still which was taken on July 9, 1958. In that Appeals and the United States Supreme required to make specific pre-trial requests to statement, Boblit admitted that he had hit Court found that the Due Process Clause of prosecutors for exculpatory evidence. But Brooks on the head with a shotgun. He also the 14th Amendment to the United States then, in 1976, United States v. Agurs17 stated that after they got back into the car, he Constitution requires disclosure of exculpa- reached the Supreme Court. (Boblit) had planned to shoot Brooks, but tory evidence. In so finding, the courts high- Linda Agurs was indicted for second- that Brady suggested strangulation instead. lighted one of the touchstone constitutional degree murder in the stabbing death of James Boblit admitted that he strangled Brooks principles which underlies our system of Sewell, which occurred at a Northwest and that he and Brady had carried the body criminal justice in the United States: when Washington, DC, motel on the afternoon of into the woods.4 the government seeks to deprive one of life September 24, 1971. The prosecution’s case The key issue in the prosecution would or liberty, due process requires the prosecu- centered on the allegation that Agurs was a turn on the identity of the individual who tion, the very adversary which seeks to pun- prostitute, whom Sewell had encountered, actually strangled Brooks. While that ques- ish the accused, to provide the accused with and that the two went to the motel during the tion had little, if anything, to do with the tools to defend themselves. course of their encounter. During the trial, a whether Brady and Boblit were guilty of motel employee testified that he had seen first-degree murder, the question did have a The History of Brady v. Maryland Sewell wearing a Bowie knife in a sheath when potential impact on whether Brady or To understand the seminal importance of he and Agurs purchased the hotel room.18 Boblit, or both, deserved the death penalty.5 Brady v. Maryland, one must understand the The motel employee further testified Prior to Brady’s trial, Brady’s lawyer had nature of exculpatory evidence and the Due that, a while later, he and two other employ- asked the prosecutor for any confessions that Process Clause of the 14th Amendment to the ees heard a woman’s screams from the room either men had made. The prosecutor turned United States Constitution. The Due Process occupied by Agurs and Sewell. The employ- over all of Boblit’s statements except the July Clause states that “No State…shall deprive ees forced their way into the room and found 9, 1958 statement in which Boblit confessed any person of life, liberty, or property without Agurs and Sewell struggling on the bed with to being the actual killer. Both Brady and due process of law.”11 In Brady, the Supreme Sewell’s Bowie knife.19 The prosecution fur- Boblit were convicted, in separate trials, of Court invoked the Due Process Clause to ther alleged, under the prostitution theory, first-degree murder and sentenced to death.6 hold “that the suppression of evidence favor- that while Sewell was down the hall in the A new lawyer for Brady read the tran- able to an accused upon request violates due bathroom, Agurs rummaged through his script of Boblit’s trial (during which the pros- process when the evidence is material either to clothes to steal more money, and Sewell ecution used the July 9, 1958 statement to guilt or to punishment, irrespective of the caught her upon his return to the room. The convict Boblit), discovered the existence of good faith or bad faith of the prosecution.”12 prosecution alleged that when Sewell caught the July 9, 1958 statement, which Brady’s Rendering its Brady decision in 1963, the Agurs going through his clothes, Agurs trial lawyer had never received, and filed a Court relied on legal precedent dating back grabbed the Bowie knife (which was among post-conviction motion requesting a new to 1935, tracing the prosecution’s affirmative the clothes) and stabbed Sewell to death.20 trial based on recently discovered evidence.7 duty to disclose evidence favorable to a defen- Agurs unsuccessfully argued at trial that The trial court denied the motion, but the dant back to early 20th century prohibitions she acted in self-defense. About a month Maryland Court of Appeals reversed the against misrepresentation to the courts.13 after she was convicted and sentenced, her decision and stated “the suppression or with- The Court defined exculpatory evidence as attorney discovered that Sewell had a prior holding by the state of material evidence any evidence favorable to a defendant and criminal record for assault and carrying dan- exculpatory to an accused is a violation of material to the question of the defendant’s gerous weapons. The importance of that due process.”8 The Maryland Court of guilt or the determination of a guilty defen- information was simple: Sewell’s prior record Appeals refused to order a new trial on the dant’s punishment.14 While the Court did evidenced his prior violent conduct, which issue of guilt, because the new evidence did not define “materiality” in its Brady decision, could have helped Agurs support her defense not raise doubt as to that issue, but the court it would later hold that exculpatory evidence theory of acting in self-defense.21 did order a new trial on the issue of whether is “material” if there is a “reasonable probabil- The prosecution had not disclosed

THE NORTH CAROLINA STATE BAR JOURNAL 9 Sewell’s prior offenses to Agurs’ defense to those witnesses based upon the informa- ment”36 and specifically imposed an affirma- attorney. During the course of the post-con- tion they provided to the prosecution. tive duty on that spokesman to obtain and viction litigation concerning the non-dis- In Bagley, the Supreme Court considered disclose all Brady material in the possession of closed evidence, the government argued that and rejected the reasoning of the lower court, anyone acting on behalf of the prosecution. In because the defense attorney had not specif- which had drawn a distinction between other words, the failure of prosecutors to pro- ically requested Sewell’s prior record, the impeachment evidence and exculpatory evi- vide Brady material to criminal defendants government was under no obligation to dis- dence and held that impeachment evidence cannot be excused by the failure of prosecu- close it.22 was more important than exculpatory evi- tors to learn or know about it, and that is true The United States Supreme Court dis- dence. Citing Giglio,29 the Supreme Court without regard to whether the ignorance was agreed and held that, for Brady purposes, a specifically “rejected any such distinction in good faith or bad faith. Thus, whether the defendant’s failure to make a request of the between impeachment evidence and exculpa- prosecution’s failure to disclose Brady material government for favorable evidence does not tory evidence” and reiterated that, when the was based on the failure of exculpatory infor- relieve the government of the obligation to reliability of a given witness may be determi- mation in law enforcement files to make its turn over exculpatory evidence. In other native of guilt or innocence, the nondisclo- way into the prosecution’s office file, or simply words, the prosecution must disclose excul- sure of evidence affecting the credibility of based on a prosecutor’s failure to read those patory evidence regardless of whether the that witness falls within the Brady rules.30 entire files, Kyles held that it was Brady error defense has requested it. The significance of Bagley in Brady nonetheless.37 jurisprudence is that, while Giglio found Impeachment Material Is Exculpatory error in failing to disclose a specific type of The Systemic Nature of Brady-RRelated Evidence impeachment evidence, Bagley generally and Prosecutorial Misconduct Another case that forged the path of cur- definitively held that there is no distinction The overriding problem in all Brady- rent Brady jurisprudence was Giglio v. United between “impeachment evidence” and “excul- related cases is prosecutorial government’s States,23 wherein the United States Supreme patory evidence” for Brady purposes.31 Both failure to disclose evidence favorable to the Court began to treat impeachment material types of evidence have equal footing within criminal defendant, whether “impeach- as the legal equivalent of exculpatory materi- the law. One type is no more or less impor- ment” or “exculpatory,” and it is a problem al. “Impeachment evidence” is, of course, tant than the other, and they are legally syn- that continues in jurisdictions across the evidence that can be “used to undermine a onymous for purposes of defining the prose- United States. In fact, the systemic nature of witness’s credibility.”24 In Giglio, the cution’s duty to disclose Brady material and the problem is illustrated by the fact that the Supreme Court recognized the value of analyzing its failure to do so. United States Supreme Court, which grants impeachment material to criminal defen- review in only the rarest of cases in which a dants and to their juries when performing Prosecutors Must Review Their petition for writ of certioriari is filed, has what is often the central role of a jury in a Evidence for Brady Material granted certiorari and rendered opinions in criminal trial: assessing the credibility of gov- The rejection of any distinction between cases centering upon withheld Brady materi- ernment witnesses. impeachment evidence and exculpatory evi- al in each decade following the year Brady In Giglio, the prosecution failed to dis- dence was further solidified in 1995 in Kyles was decided, 1963. close a promise for leniency made to a key v. Whitley.32 In Kyles, the prosecution failed Brady violations are, by definition, viola- prosecution witness in exchange for testimo- to turn over evidence related to multiple wit- tions of an individual citizen’s 14th ny against the defendant. The prosecution ness descriptions of the suspect which were Amendment right to due process of law: the had promised the witness he would not be inconsistent with one another, tape record- backbone of American criminal justice. prosecuted for the same charge if he testified ings and written statements of an informant Unfortunately, those violations have been so against Giglio before the grand jury and at which were inconsistent, a computer print- pervasive within the American criminal jus- trial. The Supreme Court held, as it had in out of automobile license numbers which tice system that, as recently as February Napue v. Illinois,25 that when the reliability of indicated the defendant’s car was not at the 2004, the United States Supreme Court a given witness may be determinative of guilt location where the informant had told police once again found itself considering yet or innocence, the nondisclosure of evidence it was at the time of the crime, and evidence another case involving evidence withheld affecting the credibility of a witness falls with- linking the informant to other crimes. from the defense which would have in the Brady doctrine.26 In so holding, the While reinforcing the Bagley holding, impeached a prosecution witness. Court clarified and broadened the Brady27 which “disavowed any difference between Addressing the Brady violation in that case, definition of “exculpatory evidence.” exculpatory and impeachment evidence for the Court eloquently summarized the issue In United States v. Bagley,28 the United Brady purposes,”33 the Court went further in Banks v. Dretke: States Supreme Court continued to legally and found that the 14th Amendment34 A rule thus declaring “prosecutor may equate impeachment evidence with exculpa- places a duty on the prosecutors “to learn of hide, defendant must seek,” is not tenable tory evidence for Brady purposes. In Bagley, any favorable evidence known to others act- in a system constitutionally bound to the prosecution had failed to disclose ing on the government’s behalf in the case, accord defendants due process. impeachment evidence related to contracts including the police.”35 “Ordinarily we presume that public offi- between the prosecution and its trial wit- Thus, Kyles expanded Giglio’s focus on the cials have properly discharged their offi- nesses whereby the government paid money prosecutor as “spokesman for the govern- cial duties.” We have several times under-

10 SUMMER 2006 “Regardless of the facts of a particular case, when a Brady issue arrises, it encompasses the guiding precept of our system of criminal justice: the protection of the accused but presumed innocent citizen.”

scored the “special role played by the guiding precept of our system of criminal 7. Ibid American prosecutor in the search for justice: the protection of the accused but pre- 8. Ibid, citing 174 A.2d 167, 169 (Md. 1961) truth in criminal trials.” Courts, litigants, sumed innocent citizen. “Innocence…is not 9. Ibid and juries properly anticipate that “obli- a technicality to the criminal process. It is the 10. Ibid gations to refrain from improper meth- main touchstone of the criminal process. 11. US Constitution Amendment 14 ods to secure a conviction…plainly rest- The justice system must not only strive to 12. Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). ing upon the prosecuting attorney, will be convict the guilty, but also to acquit the 43 13. Mooney v. Holohan, 294 U.S. 103, 112, 79 L.Ed. faithfully observed.” Prosecutors’ dishon- innocent.” 791, 55 S.Ct. 340 (1935); Pyle v. Kansas, 317 U.S. est conduct or unwarranted concealment 213, 215-216, 87 L.Ed. 214, 63 S.Ct. 177 (1942); should attract no judicial approbation. Mike Klinkosum is an assistant capital Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 The prudence of the careful prosecutor defender in Durham, NC, where he works L.Ed.2d 1217 (1959). should not be discouraged.38 exclusively on first-degree murder cases. He 14. Brady v. Maryland Of course, most prosecutors well deserve obtained his BA in History and Political 15. US v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375 (1985) (quoting Strickland v. Washington, the “ordinary presumption” that they prop- Science from UNC-Chapel Hill in 1992 and 466 U.S. 668, 694 (1984) erly discharge the many legal and ethical his JD from the University of Miami in 1995. 16. Brady v. Maryland duties of criminal prosecution, including the Klinkosum began his career as an assistant pub- 17. United States v. Agurs, 427 U.S. 97, 49 L.Ed. 2d duty to disclose Brady material. Thus, it is lic defender with the Cook County Public 342, 96 S.Ct. 2392 (1976) important to note that the goal of educating Defender’s Office in Chicago, IL, before return- 18. Ibid the legal community and general public ing to NC in 1998. He is certified by the NC 19. Ibid about Brady-related issues and violations is Board of Legal Specialization as a specialist in 20. Ibid not to gratuitously attack a class of dedicated state criminal law and has been the chair of the 21. Ibid public servants. Indeed, as the United States Criminal Defense Section of the North 22. Ibid Supreme Court stated in Brady,39 the point Carolina Academy of Trial Lawyers for the last 23. Giglio v. US, 405 U.S. 150, 92 S.Ct. 763, 31 of due process is not to punish the misdeeds two years. L.Ed.2d 104 (1972) of offending prosecutors, but to ensure that Brad Bannon is a member of the law firm 24. Black’s Law Dictionary (8th ed. 2004). defendants have fair trials. Cheshire Parker Schneider Bryan & Vitale in 25. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) Brady did not create a “loophole” in 1963 Raleigh. He practices criminal defense in state 26. Giglio v. US that allows criminal defendants to walk free, and federal court and is on the Executive 27. Brady v. Maryland and the cases that have, in the 40 years since, Committee of the Criminal Defense Section of 28. US v. Bagley consistently reaffirmed its holding and fur- the North Carolina Academy of Trial Lawyers. 29. Giglio v. US ther defined its scope, did not merely serve to Bannon received his BA from the University of 30. Brady v. Maryland widen a loophole. At most, Brady and its South Carolina in 1993 and his JD from 31. US v. Bagley progeny require that convicted defendants be Campbell University in 1997. Upon the nom- 32. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 granted new, fair trials when exculpatory evi- ination of the State Bar Council, he was L.Ed.2d 490 (1995) dence was withheld from them before their appointed by Governor Easley last fall to serve a 33. US v. Bagley previous, unfair trials.40 Notably, in the Brady four-year term on the North Carolina Inmate 34. United States Constitution, 14th Amendment case itself, there was no chance that John Grievance Resolution Board. 35. Kyles v. Whitley Brady would walk free. The most he could 36. Giglio v. US hope for was to avoid the death penalty and Endnotes 37. Ibid receive a life sentence.41 While Brady was not 1. Bibas, Stephanos, The Story of Brady v. Maryland: 38. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 innocent of murder, he may well have been From Adversarial Gamesmanship Toward the Search for L.Ed.2d 1166 (2004) (citations omitted). Innocence, Criminal Procedure Stories, Carol S. 39. Brady v. Maryland innocent of the degree of murder that called Steiker, ed., Foundation Press (2006) for the ultimate punishment of death. Brady 40. Bibas, Stephanos, The Story of Brady v. Maryland: 2. Ibid From Adversarial Gamesmanship Toward the Search for simply held that the prosecution could not 3. Ibid Innocence, Criminal Procedure Stories, Carol S. withhold evidence that might assist the jury 4. Ibid Steiker, ed., Foundation Press (2006) 42 in making either of those determinations. 5. Ibid 41. Ibid Regardless of the facts of a particular case, 6. Ibid 42. Ibid when a Brady issue arises, it encompasses the 43. Ibid

THE NORTH CAROLINA STATE BAR JOURNAL 11 Should Attorneys Be Required to Report Pro Bono Hours?

B Y A LAN W. D UNCAN, REID C. “CAL” ADAMS J R ., AND M URRAY C. “TRIPP” GREASON III

n issue that

the council

of the

North

CarolinaA State Bar may ultimatly be asked to consider is whether North Carolina’s lawyers should be required to report annu- ally the amount of pro bono service they have provided. Below are two points of view concerning this issue.

embarrasses Walter to be thanked. Scout tells good”. Pro bono work—work for the good— Against Mandatory Reporting us later that the Cunninghams “won’t take exemplifies in many ways that noble character By Alan Duncan nothin’ from nobody.” Nonetheless, we that distinguishes the law as a professional expect that Atticus’ legal services will never be calling rather than a mere job or even a career. Although Atticus Finch’s most famous fully paid in hickory nuts. But, it probably Noble character is not something discrete and work is his appointed representation of Tom was not money or hickory nuts that motivat- finite to be checked-off a list of things to do. Robinson in the movie To Kill a Mockingbird, ed Atticus to work for Walter, or for Tom Rather, it is an ongoing, daily obligation of his little-discussed representation of Walter Robinson. And, it most definitely was not the professional conduct. The value of pro bono Cunningham is deserving of greater consider- possibility of billing some pro bono hours that work is not readily measurable in hours nor ation. In the earliest scenes of the movie, we he could report to the State Bar that motivat- appropriately tracked through a mandatory bear witness to Walter uncomfortably “pay- ed Atticus. No, it was a much higher calling to reporting requirement. Instead of appropri- ing” Atticus for his legal services in hickory which Atticus responded—to do the right ately recognizing the nobility of pro bono nuts. After Walter leaves, Atticus asks his thing. work, such a reporting requirement cheapens daughter, Scout, not to call him the next time The first definition of “pro bono” offered it. Walter brings something for Atticus because it by Black Law Dictionary (6th ed.) is “for the The reporting requirement will do little to

12 SUMMER 2006 “The value of pro bono work is not readily measurable in hours nor appropriately tracked through a mandatory reporting requirement. Instead of appropriately recognizing the nobility of pro bono work, such a reporting requirement cheapens it.”

advance our desire to encourage and develop serve our state through participation on the and various federal district courts, including the a greater sense of professionalism in North boards of charitable organizations, volunteer- US District Courts for the Eastern, Middle, and Carolina lawyers. Certainly, it is possible that ing to help with the development of our Western Districts of North Carolina. lawyers may be motivated by such a require- youth, and by serving in elective office in ment to work a greater number of hours free local and state government. By focusing our of charge. Lawyers are on the whole a goal-ori- spotlight on the provision of free legal servic- For Mandatory Reporting ented, over-achieving lot. If faced with a es, we unnecessarily risk casting a shadow on By Cal Adams and Tripp Greason mandatory requirement to report the number or, worse yet, deterring participation in these of hours worked free of charge, it can be and other equally important areas of public Each attorney in North Carolina has an expected that some lawyers will try to ensure service, some of which are greatly in need of obligation to provide pro bono legal services to that they have something to report come year- additional participation by members of our the disadvantaged citizens of North Carolina. end. However, simply working “free of profession. Rule 0.1 of the Revised Rules of Professional charge” does not necessarily evidence profes- Professional character development of Conduct of the North Carolina State Bar. The sionalism. Providing free services is not entire- North Carolina lawyers should be a para- North Carolina Bar Association encourages its ly synonymous with working pro bono or for mount concern for all lawyers. However, the members to provide pro bono legal services to the good. imposition of a reporting requirement to arti- the poor. The question under consideration is While we should applaud the provision of ficially increase the number of hours of free whether attorneys should be required to services to those who cannot afford them, it is legal services is far from the best way to foster report the number of pro bono hours they really the sense of professional calling and professional character development. Instead, perform each year. This is not a discussion obligation that we seek to foster and ingrain in let us commit ourselves to mentoring and about whether pro bono should be required. all lawyers. In terms of professionalism, the leading one another by example. Significant In fact, the authors are not in favor of a reason that a lawyer provides such services is as efforts at mentoring new members of our pro- requirement that attorneys perform pro bono. important as the provision of the services. Is fession are needed, and that is a responsibility Rather, this article sets forth the rationale for there a genuine desire to do the right thing or shared by each of us. North Carolina to take a leadership position is it simply to meet a reporting requirement? Indeed, professional character and recog- and require its attorneys to report their pro The answer to that question matters to the nition that his own conduct would serve as bono work. future of our profession. an example to others is what motivated Just as the reporting requirement may Atticus Finch in To Kill a Mockingbird. Situational Analysis encourage more free hours of legal services When Atticus explains to Scout why he On November 3, 2005, Chief Justice I. without developing a greater sense of profes- accepted representation of Tom Robinson, Beverly Lake Jr. signed a Supreme Court sionalism, it follows that the reporting he tells her that he did so mainly because if Order which created the state’s Equal Access requirement may not generate meaningful he refused, he would not be able to hold his to Justice Commission for the purpose of information concerning the professionalism head up in town or tell Scout or her brother “expand[ing] access to civil legal representa- of the members of the North Carolina State not to do something ever again. Atticus was tion for people of low income and modest Bar. While the report may indicate the not motivated by money or hickory nuts or means in North Carolina.” (Order, at 1.) The amount of free services (measured only in a reporting requirement. He was moved by question that flows from this touchstone of hours) provided by North Carolina lawyers, it his professional training and moral compass commission responsibility to every member of cannot be a reliable indicator of the profes- to do the right thing. Like Atticus, let us be the State Bar and Bar Association is: “How sional character of the Bar. motivated by the desire to daily practice law can we help the commission meet its respon- If anything, a reporting requirement will and live in our communities in a way that sibilities and reach its goals?” provide an incomplete and likely under- exemplifies that noble character of our pro- It is clear that the commission will not be whelming picture of the professional charac- fessional calling. Nothing less is called for able to close the gap between legal need and ter of North Carolina lawyers. Specifically, and no amount of regulated reporting will representation without an accurate, reliable, this requirement is narrowly focused on the inspire these necessary qualities in us. and predictable measurement of pro bono provision of free legal services. However, this Alan Duncan is with the Greensboro firm of practice across our state, and that the simple, is but one of the many ways that lawyers Smith Moore, LLP. Mr. Duncan is a member of first step is to take the Bar’s pro bono pulse by answer their professional calling to service. the Supreme Court of the United States, Court of tailoring and implementing a mandatory For example, many North Carolina lawyers Appeals for the Fourth, Ninth, and DC Circuits, annual pro bono reporting system.

THE NORTH CAROLINA STATE BAR JOURNAL 13 “Mandatory reporting will increase pro bono participation and will enable the legal services community to measure pro bono performance so it will know where to devote its resources or intensify its efforts.”

Properly Tailored Pro Bono Reporting: anism for the collection of reliable data neces- judicial district level. Mandatory reporting Accurate, Efficient, Economical, and sary both to assess delivery of legal services to will increase pro bono participation and will Private the poor and to design and implement suc- enable the legal services community to meas- We can already hear Henny Penny telling cessful pro bono programs. Moreover, manda- ure pro bono performance so it will know Turkey-lurkey that “the sky is falling, and I tory reporting is strongly associated with an where to devote its resources or intensify its must go and tell the king!” Requiring attor- increase in delivery of pro bono services.2 efforts. neys to report their pro bono hours would vio- For those of limited means, mandatory late the constitutional rights to privacy and reporting promotes increased access to justice Cal Adams is with the Winston-Salem firm freedom from involuntary servitude! Pro bono and the (civil) courts. For the individual of Womble Carlyle and serves as chair of the reporting will be counterproductive because lawyer, mandatory reporting can raise aware- firm’s Pro Bono Committee. He is also serving its true purpose is to shame lawyers into ness of professional responsibility, the need for his third two-year term as president of the Legal action! An onerous responsibility! The press pro bono services, and opportunities to pro- Aid Society of Northwest North Carolina Board will use this information to criticize the Bar! vide such service. This reporting system can of Directors. Adams earned his JD in 1981 from A pro bono reporting system tailored to the also create positive peer pressure for lawyers to the Wake Forest University School of Law, cum requirements set forth in the Equal Justice become involved or increase involvement in laude. Tripp Greason is also with Womble Commission Order will present no such pro bono. Caryle. He earned his JD in 1997 from the problems. Rather, such a reporting system will For the Bar, the data collected in a manda- University of Montana School of Law. Greson is provide the commission with a simple mech- tory reporting system can be used to recognize admitted to practice before the US District Court anism for collecting the data it must have to pro bono priorities and structure pro bono of the Middle District of North Carolina. carry out its responsibilities and meet its goals. programs accordingly. In addition to enhanc- It will enable Legal Aid of North Carolina to ing its own image and increasing the level of determine where it needs to devote its public goodwill, the Bar can use this data to Endnotes resources and where it should intensify its support the message to the business and leg- 1. “Florida’s reporting system was implemented in 1993, efforts to recruit pro bono attorneys. It will islative communities regarding their responsi- over much opposition from the Florida State Bar. In 1997, the Florida Supreme Court affirmed its prior also make the legal communities throughout bility to fund legal services for the poor. The decision stating, “the mandatory reporting require- the state aware of how well they are doing in increased internal costs of implementation of ment is essential to guaranteeing that lawyers do their fulfilling their obligations to provide pro bono a reporting system can be minimal. part to provide equal justice.” The system elicited 90% work. response rates in 1997 and 1998, 87% in 1999 and Why Not Voluntary Reporting of Pro 88% in 2000. To date, it, along with Florida’s circuit Although increasing pro bono participa- court pro bono committee system has brought about tion is not the rationale behind the proposed Bono? significant increases in participation, the number of implementation of this reporting system, it is As noted by the ABA, the main downside volunteer hours and monetary contributions. The reasonable to project that the increases envi- of voluntary pro bono reporting is that the committee system creates local responsibility for using the data acquired through reporting to develop specif- sioned by the commission will occur sooner voluntary nature of the system leads to low ic plans and new projects as needed in each circuit.” because of a synergy between the commis- reporting rates. “The data collected is general- (State Pro Bono Reporting: A Guide for Bar Leaders and sion’s efforts and the reporting system. In ly not comprehensive and therefore somewhat Others Considering Strategies for Expanding Pro Bono, addition, the privacy concerns of certain limited in value. If a state adopts voluntary http://www.abanet.org/legalservices/probono/report- ingguide.html (updated August 2002).) lawyers regarding access to and use of report- reporting as a means of expanding pro bono 2. Id. (Actual increase in delivery of legal services to the ed information can be addressed by guaran- and then gathers only a meager amount of poor in Florida.) teeing that only non-identifying information data, increased participation as a result of the 3. Id. 3 be shared with the commission for the pur- system would be virtually undetectable.” 4. “The response rates in the states with voluntary report- pose of tracking pro bono practice at the judi- Moreover, voluntary reporting systems imple- ing systems are far lower than the high response rates cial district level. mented around the country have not had seen in Florida under its mandatory system. Although high response rates.4 actual pro bono participation could be high and simply In Favor of Mandatory Pro Bono unreported in the states with voluntary systems, that information is unknown and unknowable. Further, Reporting Recommendations voluntary reporting systems could increase awareness As the state of Florida has shown,1 manda- The North Carolina State Bar should of pro bono responsibility and the increased awareness tory reporting systems have high response require mandatory pro bono reporting, with could lead to increased participation. However, the large number of attorneys who choose not to report rates and provide an efficient, effective mech- the data being released to the public at the limits and conclusions that can be drawn.” (Id.)

14 SUMMER 2006 Effective Advocacy in Mediation

B Y G. NICHOLAS H ERMAN

ffective advocacy in mediation requires an under-

standing of (1) how to prepare a pre-mediation

submission to the

mediator; (2) how to present your openingE statement; and (3) what to do during the private caucuses. This article provides some suggestions about these matters so that you can be a more effective negotiator in the mediation process.

Preparing a Pre-mmediation Submission to the dispute, A pre-mediation submission is designed including the to educate the mediator about the general amount of any nature of the dispute, to identify the issues special dam- to be resolved, and to set out the basic con- ages; Bruno Budrovic/images.com tentions of the parties. If your mediator does (2) If a lawsuit not prohibit you from making a pre-media- has been filed, tion submission, sending one to him or her the basic legal claims, and defenses tor in understanding the dispute; and will often be useful. Because the basic pur- involved; (6) A concluding sentence that confirms pose of the submission is to give the media- (3) If no lawsuit has been filed, the basic the time and place of the upcoming tor an overview of what the dispute is about, contentions of your client; mediation, along with an expression of be brief and to the point. (4) The issues to be addressed; your hope that the mediation might be For example, in a two or three page letter, (5) The status of prior negotiations and successful in resolving the case. set out in a non-argumentative tone: the latest settlement offers if mentioning Mediators don’t want to read voluminous (1) The basic facts of the case giving rise them would be instructive to the media- pre-mediation materials. If, before the medi-

16 SUMMER 2006 ation, it is absolutely necessary for the mediator to understand certain matters contained in voluminous documents, summarize that information in an attachment to your letter submission. At the mediation, the mediator will have ample time to review any documents that may become the focal point of discussion. Unless otherwise agreed between the parties, you should send a copy of your pre- mediation submission to opposing counsel. Because this means that opposing counsel’s client will likely read the submission, be objective in your summary of the facts and contentions, and draft the submission in a way that does not unnecessarily escalate the dispute or otherwise impair the prospects for constructive negotiations. Even if it is agreed that your submission will be sent to the mediator ex parte, it should not be written in an excessively argumentative tone that will undermine your credibility with the mediator.

Making the Opening Statement Many lawyers who are inexperienced in mediation unwittingly equate the process with a trial. For instance, many lawyers will deliver an opening statement at mediation that sounds much like a trial opening statement and closing argument wrapped into one: the facts are meticulously set out; the key points of law are explained; the facts are applied to the law; the other side’s proof is attacked; and the presentation is concluded with a pronouncement that the lawyer’s client must be the winner. The advocate then turns to the mediator, as if looking at a jury to say, “Please render a verdict in our favor.” This approach is inappropriate because it asks the mediator to do what he or she cannot do—decide the case and declare a winner and loser. Such an opening statement is entirely at odds with the mediator’s role as an impartial facilitator of an agreement. Unlike a trial, where the outcome is a deci- opening statement should present the facts, the case from the perspective of your client’s sion on the merits, in mediation the only law, and themes of the controversy in a way real needs and interests—i.e., why he or she outcome is an agreement or no agreement. that points to a possible resolution of the has taken a particular position and why a In either case, neither side leaves the media- dispute and encourages the other party to particular resolution is important to him or tion with a verdict of victory or defeat. seek the same. The content and tone of the her. These elements of an effective opening Thus, the appropriate function of an opening statement should treat the other statement should be incorporated in a pres- opening statement in mediation is not to party with respect, avoid personal attacks, entation that otherwise addresses the convince the mediator about which side convey a willingness to fairly consider the strongest aspects of the case from your side, should win or lose, but to motivate and con- other side’s points of view so that it will fair- potential ways for settling the case, potential vince the opposing party to enter into a sat- ly consider yours, avoid threats or ultima- outcomes if the case went to trial, and the isfactory agreement. This means that the tums, and allow the other party to consider risks and costs of not reaching an agree-

THE NORTH CAROLINA STATE BAR JOURNAL 17 ment. PowerPoint slide presentation, or a com- resolve the case in your favor or compel the For example, in a routine personal injury puterized simulation; other party to settle on your terms, you want case, the opening statement for plaintiff’s Displaying potential trial exhibits; him or her to respect you as a credible advo- counsel might consist of the following: Providing all participants with a note- cate who has assessed the case realistically (1) A summary of how the accident book of documents to refer to during the and is making reasonable proposals for set- occurred; opening statement or for other use dur- tlement. Even mediators who have a strin- (2) An explanation of the plaintiff’s the- ing the mediation; gent “facilitative” philosophy about media- ory of liability (if liability is in issue); Suggesting an appropriate agenda for tion—those who refuse to give any sort of (3) A summary of the plaintiff’s course of the mediation, or outlining the parame- case evaluation—are constantly assessing the medical treatment; ters of a potential settlement; extent to which a party’s interests, objectives, (4) A summary of the diagnosis and Acknowledging certain strengths in analyses, and settlement proposals are rea- prognosis for the plaintiff’s injuries; the case of the opposing party, but point- sonable and realistic. Thus, your credibility (5) A summary of how the plaintiff’s ing out that there are two sides to the on these matters will affect how fervently the injuries have affected his or her life; story and that the risks and costs of liti- mediator encourages the other side to seri- (6) An itemization of the plaintiff’s spe- gation for both sides warrant a reasoned ously consider your offers. cial damages; and effort to try to resolve the case by agree- Third, trying to manipulate the mediator (7) An expression of willingness to fairly ment; will impair his or her ability to move the consider all aspects of the case to the end Making an initial offer and explaining negotiations along in helping the other party that it might be resolved. the reasons behind the offer; understand and accommodate your client’s Defense counsel’s opening statement Suggesting that at the conclusion of interests and objectives. The techniques might then consist of the following: the opening statements, both sides mediators use to facilitate productive negoti- (1) An explanation of any additional facts engage in a free-flowing, uninhibited dis- ations can be effective with the other side about how the accident occurred; cussion about the dispute and possible only if you are candid with the mediator. (2) An explanation of the defendant’s ways to resolve it before engaging in the 2. Help the mediator obtain informa- theory of liability (if liability is in issue); private caucuses; tion. If your client is articulate, credible, lik- (3) A summary of any time gaps in the Establishing a reasonable deadline for able, and persuasive, let him or her partici- plaintiff’s medical treatment, and any completing the mediation session. pate actively in the caucuses and respond medical treatment that appears to have freely to the mediator’s questions. If your been unnecessary; Using the Private Caucuses client is angry or distraught about the events (4) Any references in the medical reports In most cases, the private caucuses are the giving rise to the dispute, he or she might to a pre-existing medical condition; or most important part of the mediation even express these feelings directly. The any ambiguities in the reports about process. Here, the mediator obtains infor- mediator will often respond favorably to diagnoses, the plaintiff’s prognosis, or mation; generates and discusses potential your client’s “humanity” and likeability and extent of injury; solutions; assesses, selects, and communi- may even mention his or her credibility (5) An itemization of any special dam- cates specific proposals; works to create when meeting with the other side. ages that are unwarranted in the case; movement in the negotiations; and helps the On the other hand, if your client is reti- (6) An expression of apology to the plain- parties reach and finalize an agreement. To cent or uncomfortable about participating tiff or similar expression of regret about advocate effectively during the private cau- actively in the private caucuses, intercede how the accident has affected the plain- cuses, you must actively participate in all and respond yourself to the mediator’s ques- tiff; and these functions and assist the mediator’s tions and comments. Don’t hesitate to vol- (7) An expression, like that of plaintiff’s efforts. In this regard, consider the follow- unteer all pertinent information to help the counsel, of a willingness to fairly consid- ing: mediator understand the dispute and poten- er all circumstances of the case with the 1. Don’t try to manipulate the mediator. tial pathways to a resolution. hope that it might be settled. Trying to manipulate the mediator through The mediator will often ask why your The particular type of case involved, its misrepresentation or disingenuous tactics client has taken a particular position or gravity or complexity, and the dynamics of (such as bluffing, making escalating or false thinks a specific objective is important. In the parties must all—of course—be taken demands, or reversing position, and the like) asking these questions, he or she is usually into account in deciding what would be is a bad idea for three reasons. trying to assess the possibility of nonmone- most appropriate to say in the opening state- First, most mediators are trained to rec- tary solutions to the dispute; for even if the ment and how to present it. For example, in ognize manipulation attempts and can usu- case appears to be solely about money, a set- an appropriate case, consider the following: ally spot them immediately. Asking the tlement might still include some nonmone- Having your client take part in the mediator to threaten or play hardball with tary commitments. For example, some opening statement by explaining his or the other side is likely to be futile because clients might be willing to settle for a small- her injuries or how the accident hap- mediators are heavily schooled in coopera- er sum if the wrongdoer agrees to take spe- pened; tive and principled problem-solving negoti- cific steps to prevent similar harm in the Using audiovisual aids such as models, ation. future. charts, diagrams, photos, a video, a Second, although the mediator cannot You can use the private caucuses not only

18 SUMMER 2006 to give information, but also to obtain it as clues. Good mediators are good word- you ask, “What do you think a jury would well. Tell the mediator what you need to smiths. They may use questions to indicate do in this case?” or “How do you think we know from the other side and explain why their views about the case and to hint at can settle this case?,” many mediators will this information is essential. Often, the what the other side might consider an respond, “What do you think?” On the mediator will ask for this information from acceptable resolution. For example, consider other hand, you may get more direct the other side without mentioning that the a mediator who asks: “Are you aware of any responses if you ask, “How can we best think request came from you. six-figure jury verdicts for this type of case?;” through this aspect of the dispute?,” “What 3. Discuss the case’s strengths and weak- “Do you think the other side would perceive might we do to accommodate the other side nesses. Private caucusing is a safe opportuni- your offer as fair?;” or “What would you say about X?,” or “I wonder, is there anything ty to recognize reality. Each case has if the other side offered to do X?” Although more we should be thinking about to resolve strengths and weaknesses, and understand- the mediator may ask these questions solely this case?” Even if the response is still, “Well, ing both is critical to making a sound deci- to obtain information, depending on the what do you think?,” discussing these mat- sion about settling or going to trial. question’s context, they may actually mean: ters will encourage the mediator to be more Candor in discussing the weaknesses of “The value you have placed on the case is forthcoming with his or her thoughts about your case is often useful for three reasons. way out of line;” “Your offer is unreasonable the case. First, it enhances your credibility with the and unrealistic;” and “The other side has If the mediator appears willing to help mediator. Second, a weakness’ relevance told me they are willing to do X, but you push the parties toward an agreement, you depends not only on the extent to which it must give them something in return.” may be more direct in soliciting his or her in fact hurts your case, but more important- Thus, carefully consider the context of views. For example, you might ask, “What is ly on the extent to which the other side per- the mediator’s questions and comments dur- your sense of how a jury might react to X ceives that it hurts your case. A candid dis- ing your private caucuses. Mediators often fact, Y theory, or Z theme?” or “How can we cussion with the mediator may reveal that use rhetorical questions to indicate their encourage the other side to consider X?” You you either underestimated or overestimated general assessment of the case, the viability might otherwise try to elicit a response by weaknesses, which may cause you to adjust of your settlement proposals, and what the musing, “I’m having difficulty seeing how a your negotiating strategy. other side is thinking. Being attuned to these jury would react to the fact that . . . “ or “I’m Third, when you acknowledge certain cues and clues may help you significantly in having trouble coming up with something weaknesses, you can also explain how they your negotiation. else to offer… I wonder what more we can pale in contrast to your case’s strengths and 6. Invite the mediator’s perspectives do.” why your opponent’s perception of any about the case. Unless the parties have In sum, when inviting the mediator’s per- weaknesses in your case is overblown. These expressly agreed on “evaluative” mediation spectives about the case, word your requests are points a mediator may emphasize to the (in which the mediator is free to comment carefully so the mediator does not feel that other side. on the merits of the case and how it might his or her responses could be perceived as When your case’s weaknesses are not be resolved), the mediator will almost never taking sides. Explain to the mediator that readily apparent to the other party, you may directly express a view about the case’s value your questions are motivated by a genuine not want to volunteer them initially. Wait or how it should be settled. This is consistent desire to assess the relative strengths and until the mediator’s questions or comments with his or her role as an impartial facilitator weaknesses of the case and possible ways to confront the subject. This way, you can of an agreement that only the parties should resolve it. hedge against unnecessarily revealing weak- fashion and own. 7. Don’t disclose your bottom line up nesses, while keeping them in the back of This does not mean, however, that a front. It is usually unwise in the initial cau- your mind when you consider whether to mediator will be flatly unresponsive when cuses to tell the mediator your bottom line make a concession at a crucial time during you ask for help resolving the case. It is position for an acceptable settlement. There the negotiations. entirely legitimate for you to invite the are four reasons for this. 4. Specify what information is confiden- mediator to offer his or her general impres- First, the opposing party may have evalu- tial. The mediator has free reign to share sions of your and your opponent’s analysis of ated the case differently than you think and with the other party anything you have said the case, its value, and possible solutions. might be willing to settle on terms much during your private caucuses that you have The mediator’s perspective—precisely more favorable to your client than you antic- not specified is confidential. This does not because it is neutral—is often integral to ipated. Second, during the caucusing mean he or she will reveal everything. helping the parties reach an agreement. process, you might learn critical information Mediators tend to be selective about sharing Whether the mediator is willing to that will cause you to change your bottom information. Whether and how much they respond substantively about these matters line. Third, by giving the mediator your share depends on how much they believe it will largely depend on whether he or she minimum acceptable settlement, you lose will advance the negotiations. However, thinks you are genuinely asking for assis- significant control over the negotiating because of the mediator’s general license to tance in understanding the views of the process because the mediator may be reluc- share, before the mediator leaves your private other side to assess the prospects for a reso- tant to press for concessions from the other session, remind him or her of what informa- lution, or whether you are asking the medi- side that are better than your bottom line. tion you expect will be kept confidential. ator’s “personal opinion” about the merits of Finally, you may put the mediator in the 5. Listen to the mediator’s cues and the case or how to resolve it. For example, if awkward position—if not the troubling ethi-

THE NORTH CAROLINA STATE BAR JOURNAL 19 cal dilemma—of how to respond candidly if either you or the mediator should summa- adjourned so that the parties might your opponent asks whether you have any rize for your client what you discussed and reconsider their positions or try to come further flexibility if the party asking the what suggestions arose. up with new proposals; question is about to make a final offer that is 10. Suggest mediator problem-solving That the mediator provide the other less (for plaintiffs) or more (for defendants) techniques that may help forge an agree- side with a particular rationale for chang- than what would be acceptable to the other ment. Mediators invariably employ a variety ing position that allows that party to save side. Here, the mediator’s dilemma is of problem-solving techniques to help the face; whether to disclose to the plaintiff that more parties reach an agreement. Quite often, the That the parties recess the private cau- money is available from the defendant, or mediator will use these techniques sua sponte, cuses and reconvene in joint session to whether to disclose to the defendant that the without any express prompting from the discuss the case. plaintiff is willing to accept less than the parties. However, if you believe that one or 11. Be patient with the mediation defendant’s bottom line. more of these techniques may be particular- process and take time to privately confer It is also unwise to reveal to the mediator ly helpful in forging a satisfactory agreement, with your client. A principal advantage of that your client will not, in any event, take suggest them to the mediator. For example, mediation over traditional inter-lawyer the case to trial. For example, in a low-speed- in an appropriate case, you might suggest: negotiations is that it provides a “process” collision case, a plaintiff might decide at the A payment in kind instead of in through which the clients have an opportu- outset not to go through the delay, expense, money; nity to be directly involved in resolving their and inconvenience of litigation, but merely A structured settlement or payment in dispute; and for many clients, the very process seek to use mediation to obtain a more favor- installments; of how they go about resolving their differ- able settlement from that initially offered by Payment of a portion of the settlement ences is important to them. Working the defendant’s insurance carrier. A mediator to a mutually acceptable charity or other through this process takes time, and there- who knows that this is the plaintiff’s only public-interest organization; fore you must be patient with it even though goal may be less likely to push the defendant A future business arrangement or rela- hours may pass before the mediation begins toward a higher settlement offer. tionship; to “get to the point” of substantive negotia- 8. Make reasonable settlement offers A change in an employee’s title or tions over specific terms of a potential agree- with sound support. As in any negotiation, work status in lieu of, or in exchange for, ment. If you hurry the process, you may making offers that are arbitrary or unreason- a smaller pay increase; defeat its fundamental purpose. able may insult the other side, impair your An undertaking to take certain correc- In addition, after each private caucus credibility, and unnecessarily result in a tive action to prevent the recurrence of with the mediator, take the time to confer deadlock of the mediation. the type of accident or injury that privately with your client. As appropriate, Whenever you make an offer or coun- occurred in the case; discuss the matters raised during the caucus teroffer, try to give the mediator specific rea- A substitution of goods; and consider your “next move.” If during a sons for your proposal so he or she may con- An apology for what happened; caucusing session you or your client want to vey them to your opponent. If possible, A confidentiality clause in the agree- talk privately (e.g., to decide what counterof- incorporate something the other side wants, ment; fer you want the mediator to present to the or explain why your proposal would benefit A provision to abide by the recom- other side), don’t hesitate to temporarily the other side. This will help the mediator mendation of a suitable third party who recess the session to confer. Above all, explain that your proposal is rational and not has special expertise in the matter in dis- remember that even though you and your simply an auction-like bid. pute; client have established a game plan for the 9. Confer alone with the mediator and That the mediator present a proposal mediation, you should use all that you learn opposing counsel, if necessary. Sometimes to the other side as if it were his or her during the process to modify that plan as cir- both clients may be so emotionally dis- own idea; cumstances warrant. Indeed, this modifica- traught that their irrationality will obstruct That the mediator make a proposal tion may be as significant as entirely chang- the mediation process. In these circum- conditional without communicating a ing what your client earlier thought was an stances, you and opposing counsel might commitment on your part (e.g., “If I can appropriate bottom line. choose to meet with the mediator, without get the other side to do X, will you do the clients, to discuss the problem. Y?”); G. Nicholas Herman is an adjunct professor It is best to suggest this to the mediator That the mediator present a particular at North Carolina Central University School of outside the presence of your client, such as proposal at a certain time during the Law and is a litigator with the Brough Law during a break. If you decide to meet pri- mediation process when the proposal will Firm in Chapel Hill, North Carolina. He is vately, explain to your client (or have the have the greatest impact; the author of Practical Evidence: The Law, mediator explain) that the mediator wants a That counsel for the parties phone Foundations, and Trial Techniques (2d. ed. private meeting with counsel to discuss how another lawyer or a law professor they West Group 1999), Plea Bargaining (2d ed. to get the negotiations back on track. Assure respect to render an opinion about the LexisNexis 2004), and Legal Counseling & your client that nothing will be decided relative merits of a novel or controversial Negotiating: A Practical Approach (with Jean about settling the case without his or her full legal theory; M. Carey and Joseph E. Kennedy) (LexisNexis knowledge and consent. After the meeting, That the mediation be temporarily 2001).

20 SUMMER 2006 The New Servicemembers Civil Relief Act

BY M ARK E. SULLIVAN

n December 19, 2003, President Bush signed into law

the Servicemembers Civil Relief Act (SCRA), a com-

plete revision of the statute known as The Soldiers’ and

Sailors’ Civil Relief Act, or SSCRA. With North

OCarolina having the third largest military

population in the country, this Act is “must

reading” for attorneys throughout the

state.

Even for lawyers with no military base nearby, this federal statute is important. There are about 150,000 National Guard and Reserve personnel at present who have been called up to active duty, and about 40% of the armed forces serving in Iraq are Reserve/Guard servicemembers. These Reserve Component (RC) military members come from the big cities and small towns of America, and lawyers need to tingency mission specified by the president 1. Postponement of civil court hearings know their way around the basic federal or the secretary of defense. 50 U.S.C. App. when military duties materially affected the statute that protects those on active duty. § 511(2)(A)(ii). ability of an SM to prepare for or be pres- Although previously there was limited cov- ent for civil litigation; erage by the SSCRA for Guard members, Replacing the SSCRA 2. Reducing the interest rate to 6% on the new Act extends protections to mem- Up until the passage of the SCRA, the pre service loans and obligations; bers of the National Guard called to active basic protections of the SSCRA for the ser- 3. Barring eviction of an SM’s family for duty for 30 days or more pursuant to a con- vicemember (SM) included: nonpayment of rent without a court order

22 SUMMER 2006 “With North Carolina having the third largest military population in the country, this Act is ‘must reading’ for attorneys throughout the state.”

for monthly rent of $1,200 or less; itorious defense exists). 50 U.S.C. App. § keep physical custody with his own moth- 4. Termination of a pre service residen- 521(d). er) and In re Marriage of Grantham, 698 tial lease; and In a situation where the military mem- N.W.2d 140 (Iowa 2005) (reversing a 5. Allowing SMs to maintain their state ber has notice of the proceeding, a similar judge’s order that stayed the mother’s cus- of residence for tax purposes despite mili- mandatory 90-day stay (minimum) of pro- tody petition when father was mobilized tary reassignment to other states. ceedings applies upon the request of the and had given custody via his FCP to his The SSCRA, enacted in 1940 and SM, so long as the application for a stay mother). updated after the Gulf War in 1991, was includes two things. The first is a letter or On another front, think about support. still largely unchanged as of 2003. Congress other communication that 1) states the How does this stay provision affect the cus- wrote the SCRA to clarify the language of manner in which current military duty todial dad who suddenly stops receiving the SSCRA, to incorporate many years of requirements materially affect the SM’s child support when his ex-wife is called up judicial interpretation of the SSCRA, and ability to appear, and 2) gives a date when to active duty from the Guard or Reserve? to update the SSCRA to reflect new devel- the SM will be available to appear. The sec- When she leaves behind her “day job,” her opments in American life since 1940. Since ond is a letter or other communication pay stops and so does the monthly wage many of the Act’s provisions are particular- from the SM’s commanding officer stating garnishment for support of their children. ly useful (and potentially dangerous) in that 1) the SM’s current military duty pre- How can dad get the garnishment restarted domestic litigation, the family law attorney vents appearance, and 2) that military leave while she’s in uniform on active duty? Will should have a good working knowledge of is not now authorized for the SM. 50 the reduction in pay result in less child sup- them. Here’s an overview of what the U.S.C. App. § 522. Of course, these two port? Or will her reduced cost of living in SCRA does. communications may be consolidated into the military (how much does it cost to live one if it is from the SM’s commander. in a tent outside Bagram Air Base in Stays and Delays Afghanistan?) have the opposite result? The SCRA expands the application of Family Law Sidebar How can dad move the case forward to an SM’s right to stay court hearings to Pause for a moment to think through establish a new garnishment when he can- include administrative hearings. Previously the potential impact of this stay provision not locate her, he might not be able to serve only civil courts were included, and this on the family lawyer and his or her client. her (if he can locate her), and she probably caused problems in cases involving admin- How would this affect an action for cus- will have a bullet-proof motion for stay of istrative child support determinations as tody by the non-custodial dad when mom, proceedings if dad ever gets the case to well as other agency determinations which who has custody, gets mobilization orders court? impacted servicemembers. Criminal mat- and takes off for Afghanistan, leaving the ters are still excluded. 50 U.S.C. App. § parties’ child with her mother in Florida? Additional Stays 511-512. There are several provisions How are you going to get the child back An application for an additional stay regarding the ability of a court or adminis- when mom’s lawyer interposes a stay may be made at the time of the original trative agency to enter an order staying, or request to stop the litigation dead in its request or later. 50 U.S.C. App. § 522 delaying, proceedings. This is one of the tracks? If mom has executed a Family Care (d)(2). If the court refuses to grant an addi- central points in the SSCRA and now in Plan (FCP), which is required by military tional stay, then the court must appoint the SCRA—the granting of a continuance regulations, leaving custody with the counsel to represent the SM in the action or which halts legal proceedings. maternal grandmother, will that docu- proceeding. 50 U.S.C. App. § 522(d)(2). In a case where the SM lacks notice of ment—executed by mom, approved by her Once again, give this some thought. the proceedings, the SCRA requires a court commanding officer, and accompanied by a What is the attorney supposed to do— or administrative agency to grant a stay (or custodial power of attorney—displace or tackle the entire representation of the SM, continuance) of at least 90 days when the overcome a court order transferring custody whom he has never met, who is currently defendant is in military service and - to dad? Can the court even enter such a absent from the courtroom, and who is the court or agency decides that there custody order given the stay and default likely unavailable for even a phone call or a may be a defense to the action, and such provisions of the SCRA? To see how the consultation if he is on some distant shore defense cannot be presented in the defen- battle is being joined in this area, take a in harm’s way? dant’s absence, or look at Lenser v. McGowan, 2004 Ark. And, by the way, who pays for this? with the exercise of due diligence, LEXIS 490 (upholding the judge’s grant of There is no provision for compensation in counsel has been unable to contact the custody to the mother when the mobilized the SCRA. How would you respond if her defendant (or otherwise determine if a mer- father requested a stay of proceedings to honor beckons you to the bench next

THE NORTH CAROLINA STATE BAR JOURNAL 23 Monday and says, “Counselor, I am itary service, then the court may require the attorney. Her actions may not waive any appointing you as the attorney for Sergeant moving party to post a bond as a condition defense of the SM or bind the SM. What is Sandra Blake, the absent defendant in this of entry of a default judgment. Should the she supposed to do? How can she operate case. I understand that she’s in the Army, or nonmovant later be found to be an SM, the effectively before the court with these maybe the Army Reserve or National bond may be used to indemnify the defen- restrictions? Can she, for example, stipulate Guard. Whatever. Please report back to the dant against any loss or damage which he or to the income of her client or of the other court in two weeks and be ready to try this she may incur due to the default judgment party? Can she agree to guideline child sup- case.”? (if it should be later set aside). 50 U.S.C. port and thus waive a request for a vari- App. § 521(b)(3). ance? Without elaboration in this area, the Dangers and Defaults When the filed affidavit states that the Act could mean that she must contest Does a stay request expose an SM to any party against whom the default order or everything, object whenever possible, and risks? The SCRA states that an application judgment is to be taken is a member of the refuse to make even reasonable stipulations for a stay does not constitute an appearance armed forces, no default may be taken until or concessions for fear of violating the for jurisdictional purposes and does not the court has appointed an attorney for the SCRA. Such conduct is, of course, at odds constitute a waiver of any substantive or absent SM. with the ethical requirements that counsel procedural defense (including a defense as If in an action covered by this section it act in a professional and civil manner, to lack of personal jurisdiction). 50 U.S.C. appears that the defendant is in military avoiding undue delay and expense. App. § 522(c) eliminates the previous con- service, the court may not enter a judg- cern that a stay motion would constitute a ment until after the court appoints an Default Protections general appearance, exposing the SM to the attorney to represent the defendant. If If a default decree is entered against an jurisdiction of the court. This new provi- an attorney appointed under this section SM, whether the judge complies with the sion makes it clear that a stay request “does to represent a servicemember cannot terms of the SCRA or not, the Act provides not constitute an appearance for jurisdic- locate the servicemember, actions by the protections. The purpose of this is to pro- tional purposes and does not constitute a attorney in the case shall not waive any tect those in the military from having waiver of any substantive or procedural defense of the servicemember or other- default judgments entered against them defense.” wise bind the servicemember. without their knowledge and without a Can you obtain a default judgment 50 U.S.C. App. § 521(b)(2). chance to defend themselves. The SCRA against an SM? Broadly construing “default If the court fails to appoint an attorney allows a member who has not received judgment” as any adverse order or ruling then the judgment or decree is voidable. notice of the proceeding to move to reopen against the SM’s interest, the SCRA clarifies a default judgment. To do so he must apply how to proceed in a case where the other Attorney for “The Absent” to the trial court that rendered the original side seeks a default judgment (that is, one The role of the appointed attorney is to judgment of order. In addition, the default in which the SM has been served but has “represent the defendant.” The statute does judgment must have been entered when the not entered an appearance by filing an not say what happens if the SM is, in fact, member was on active duty in military serv- answer or otherwise) if the tribunal cannot the plaintiff in a particular domestic case, ice or within 60 days thereafter, and the SM determine if the defendant is in military but undoubtedly this wording is careless must apply for reopening the judgment service. drafting. Particularly in domestic cases, it is while on active duty or within 90 days A default judgment may not be lawfully as likely that the SM would be the plaintiff thereafter. 50 U.S.C. App. § 521(g). entered against an SM in his or her absence as the defendant, the petitioner as the Reopening or vacating the judgment does unless the court follows the procedures set respondent, and default decrees are sought not impair right or title acquired by a bona out in the SCRA. When the SM has not against both sides, not just defendants. fide purchaser for value under the default made an appearance, 50 U.S.C. App. § 521 The statute does not say what tasks are judgment. 50 U.S.C. App. 521(h). governs. The court must first determine to be undertaken by the appointed attor- To prevail in a motion to reopen the whether an absent or defaulting party is in ney, but the probable duties are to protect default decree, the SM must prove that, at military service. Before entry of a judgment the interests of the absent member, much as the time the judgment was rendered, he or order for the moving party (usually the a guardian ad litem protects the interests of was prejudiced in his ability to defend him- plaintiff), the movant must file an affidavit a minor or incompetent party. This would self due to military service. In addition, he stating “whether or not the defendant is in include contacting the member to advise must show that there is a meritorious or military service and showing necessary facts that a default is about to be entered and to legal defense to the initial claim. Default in support of the affidavit.” Criminal ask whether that party wants to request a judgments will not be set aside when a liti- penalties are provided for filing a knowing- stay of proceedings. Counsel for the SM gant’s position lacks merit. Such a require- ly false affidavit. 50 U.S.C. App. § 521(c). should always renew the request for a stay ment avoids a waste of judicial effort and When the court is considering the entry of proceedings, given the difficulty of resources in opening default judgments in of a default judgment or order, one tool preparing and presenting a case without the cases where servicemembers have no that is specifically recognized by the SCRA client’s participation. defense to assert. As part of a well-drafted is the posting of a bond. If the court cannot The statute also leaves one in the dark motion or petition to reopen a default determine whether the defendant is in mil- about the limitations of the appointed judgment or order, the SM should clearly

24 SUMMER 2006 delineate his claim or defense so that the court will have sufficient facts upon which to base a ruling.

Interest Rates The Act clarifies the rules on the 6% interest rate cap on pre service loans and obligations by specifying that interest in excess of 6% per year must be forgiven. 50 U.S.C. App. § 527(a)(2). The absence of such language in the SSCRA had allowed some lenders to argue that interest in excess of 6% is merely deferred. It also specifies that an SM must request this reduction in writing and include a copy of his/her military orders. 50 U.S.C. App. § 527(b)(1). Once the creditor receives al or similar purposes could be terminated many other domestic issues. notice, the creditor must grant the relief by an SM if two conditions were met: The best source of quick information on effective as of the date the servicemember is a. The lease/rental agreement was signed the SCRA is “A Judge’s Guide to the called to active duty. The creditor must for- before the member entered active duty; and Servicemembers Civil Relief Act,” found at give any interest in excess of the 6% with a b. The leased premises have been occu- the website of the Military Committee of resulting decrease in the amount of period- pied for the above purposes by the member the ABA Family Law Section, www.abanet. ic payment that the servicemember is or his or her dependents. org/family/military. An extended treatment required to make. 50 U.S.C. App. § The new Act still applies to leases of the SCRA and family law issues may be 527(b)(2). The creditor may challenge the entered into prior to entry on active duty. It found in Sullivan, “Family Law and the rate reduction if it can show that the SM’s adds a new provision, however, extending Servicemembers Civil Relief Act,” “Legal military service has not materially affected coverage to leases entered into by active Considerations in SCRA Stay Request his or her ability to pay. 50 U.S.C. App. § duty servicemembers who subsequently Litigation: The Tactical and the Practical,” 527(c). receive orders for a “permanent change of Divorce Litigation, Vol.16/ Number 3, station” (PCS) or a deployment for a peri- March 2004. Also see Sullivan, “The Leases, Liens, and More od of 90 days or more. Servicemembers Civil Relief Act: A Guide The SSCRA provided that, absent a It also adds a new provision allowing the for Family Law Attorneys,” in Brown and court order, a landlord may not evict a ser- termination of automobile leases (for busi- Morgan, 2005 Family Law Update, pp. 23- vicemember or the dependents of a service- ness or personal use) by SMs and their 54 (Aspen Publishers 2005). The Army member from a residential lease when the dependents. Pre service automobile leases JAG School’s SCRA guide will be pub- monthly rent is $1200 or less. 50 U.S.C. may be canceled if the SM receives orders lished and posted on-line shortly, taking the App. § 531(a) modifies the eviction protec- to active duty for a period of 180 days or place of the SSCRA guide which is present- tion section by barring evictions from more. Automobile leases entered into while ly available (and still quite useful in under- premises occupied by SMs for which the the SM is on active duty may be terminat- standing and interpreting the statute). This monthly rent does not exceed $2,400 for ed if he or she receives PCS orders to a loca- can be found at the school’s website, the year 2003. The new Act also provides a tion outside the continental United States www.jagcnet.army.mil/tjaglcs. Click on formula to calculate the rent ceiling for or deployment orders for a period of 180 TJAGLCS Publications, then scroll down future years. Using this formula, the 2006 days or more. 50 U.S.C. App. § 535. to Legal Assistance, and then look for the monthly rent ceiling is $2,615.16. publication, which is JA 260. A substantial change is found in 50 Conclusion U.S.C. App. § 534. Previously the statute The family law attorney, perhaps even Mr. Sullivan is a retired Army Reserve allowed a servicemember to terminate a more than the general practitioner, needs to JAG colonel who practices with Sullivan & pre-service “dwelling, professional, busi- know and understand the SCRA for those Grace, PA, in Raleigh, NC. He is a board-cer- ness, agricultural, or similar” lease executed occasions when a military member is one of tified specialist in family law and past-presi- by or for the servicemember and occupied the parties to the litigation. Mobilizations dent of the North Carolina Chapter of the for those purposes by the servicemember or and deployments affect mothers and American Academy of Matrimonial Lawyers. his dependents. It did not provide help for fathers, wives and husbands, and separated He is currently chair of the Military the SM on active duty who is required to partners who are in the Reserves, on active Committee of the ABA Section of Family move due to military orders. The SCRA duty, and in the National Guard. They will Law. This article is an update to “The remedies these problems. Under the old have an impact on income, visitation, fam- Soldiers’ and Sailors’ Civil Relief Act,” pub- statute, a lease covering property used for ily expenses, custodial care for children, lished in the Spring 2002 issue of the North dwelling, professional, business, agricultur- mortgage foreclosures, garnishments, and Carolina State Bar Journal.

THE NORTH CAROLINA STATE BAR JOURNAL 25 Electing Judges and the Impact on Judicial Independence

B Y T HE H ONORABLE R ANDALL T. S HEPARD

Judicial Independence when there is The United States Supreme Court nomi- an outcry over nees’ confirmation hearings have brought a judge’s rul- judicial independence to the forefront of hot ing, judicial topics in the media and on Capitol Hill. The elections spotlight focuses on where the nominees become the stand on the most controversial and partisan most costly issues of the day including abortion, gay and con- rights, and physician-assisted suicide. tentious. In Disclosure of a nominee’s position on sub- the 2004 judi- stantive law is a serious threat to judicial inde- cial elections, pendence. Justice Sandra Day O’Connor $24.4 million observed that when a candidate expresses a was spent on viewpoint on a contentious issue, the candi- television date may have prejudged future cases, at least advertise- in appearance, and possibly in reality.1 ments, over Judicial independence is the principle that twice as much judges must decide cases fairly and impartial- than the ly, relying only on the facts and the law. $10.6 million spent in the 2000 election must be left free to inform the electorate of “Although all judges do not reason alike or cycle.4 Businesses, lawyers, political parties, their positions on specific issues. Armed necessarily reach the same decision, decisions and special interest groups spent millions of with such information, the individual should be based on determinations of the evi- dollars donating to judicial election cam- voter will be equipped to cast her ballot dence and the law, not on public opinion paigns and financing their own advertising to intelligently, to vote for the candidate polls, personal whim, prejudice or fear, or support and attack candidates.5 committed to positions the voter interference from the legislative or the execu- The underlying, ulterior motive behind approves…. tive branches or private citizens or groups.”2 the clamor is often driven by the aim to Judges, however, are not political actors. Judges must resist outside influence to main- replace the incumbent judge with a more They do not sit as representatives of par- tain the uncompromised impartiality their politically preferable candidate in the new ticular persons, communities, or parties; offices require, including the pressure to dis- election.6 In short, judicial elections are pro- they serve no faction or constituency. “[I]t close their views on substantive issues during gressively looking more like elections in the is the business of judges to be indifferent to a judicial selection process. executive and legislative branches. popularity.”7 They must strive to do what Although the threats to judicial independ- But judges are different than other elected is legally right, all the more so when the ence in the federal judiciary are widely publi- officials and if a state has judicial elections, result is not the one “the home crowd” cized, tougher judicial independence issues then the elections should reflect that differ- wants.8 Even when they develop common arise in state courts, especially in states with ence. law or give concrete meaning to constitu- judicial elections. Legislative and executive officials serve in tional text, judges act only in the context representative capacities. They are agents of individual cases, the outcome of which Judicial Elections in State Courts of the people: their primary function is to cannot depend on the will of the public.9 Thirty-nine states hold elections for some advance the interests of their constituen- Judicial elections present a dilemma for or all judicial offices. Nationally, 87% of all cies. Candidates for political offices, in candidates because their desire to say things state judges face an election.3 In these states, keeping with their representative role, that might win votes clashes with their duty to

26 SUMMER 2006 ensure due process.10 Judicial candidates are duct, how can candidates work to preserve the first term of service.17 guided in all states by canons of judicial con- judicial independence? Judicial leadership is perhaps the most duct, including limits placed on a judge’s abil- The positive news is that there are efforts important and effective reform. This strategy ity to sit on a case if the judge “decides” the to reform judicial elections and guidance for turns on judges speaking out and educating case during a campaign as well as limitations candidates to help shield them from political the public on the importance of judicial inde- placed on the political activities of judges. pressures: pendence. “Public outreach efforts promote However, in recent years litigants have Judicial Campaign Conduct Committees: judicial independence, because they enable challenged these canons. For example, in The National Ad Hoc Advisory Committee citizens to evaluate critical attacks on judges Republican Party of Minnesota v. White, decid- on Judicial Campaign Conduct, coordinated and to value judicial independence.” Judges ed in 2002, the United States Supreme Court by the National Center for State Courts, has and lawyers must be community educators held that the portion of Canon 5(A) (3) (d) (i) produced Effective Judicial Campaign reaching out to the public, the media, and the (2000) of the Minnesota Code of Judicial Conduct Committees: A How-To Handbook executive and legislative branches of govern- Conduct, providing that a “candidate for a with support from the Law and Society ment to preserve the independence of the judicial office, including an incumbent judge” Program of the Open Society Institute. The judiciary. shall not “announce his or her views on dis- Handbook is a step-by-step guide for those puted legal or political issues,” violated the with an interest in establishing a committee Randall T. Shepard, chief justice of Indiana, First Amendment. In response to the United that will: is chair of the National Center for State Courts States Supreme Court decision in White, the 1. Educate judges and judicial candidates Board of Directors and president of the American Bar Association amended its Model about ethical campaign conduct; Conference of Chief Justices. Chief Justice Code of Judicial Conduct.11 2. Encourage and support appropriate Shepard is recognized as a national leader in Most recently, in August 2005, the 8th campaign conduct, and work to deter inap- state courts issues, such as protecting judicial Circuit Court of Appeals ruled in the remand propriate conduct; independence, improving judicial selection, and of Republican Party of Minnesota v. White that 3. Publicly criticize inappropriate cam- revising the judicial model code. judicial candidates may attend political party paign conduct that cannot be otherwise The National Center for State Courts, head- conventions, seek political party endorse- resolved; and quartered in Williamsburg, VA, is a non-profit ment, and personally solicit campaign funds 4. Protect the public interest in having a court reform organization dedicated to improv- as long as the candidate does not know the fair and impartial judiciary. ing the administration of justice by providing identity of the donor. The court held that lim- Additionally, the Ad Hoc Advisory leadership and service to the state courts. For iting political activity is a violation of free Committee’s website is a clearinghouse for more information on judicial independence and speech.12 the by-laws, mission statements, public state- judicial elections, visit the National Center for Since the first White decision, judicial can- ments, and other materials prepared by vari- State Courts’ website at www.ncsconline.org. didates have been receiving more question- ous judicial campaign conduct committees. naires than ever before from special interest The Ad Hoc Committee is also available to Endnotes groups asking them to reveal views on hot- offer specific advice on the organization, pro- 1. Randall T. Shepard, Telephone Justice, Pandering, and button issues such as, “Have you ever cast a cedures, and operations of judicial campaign Judges Who Speak Out of School, 29 Fordham Urb. L.J. 811, 816 (2002). public vote relating to reproductive rights?” conduct committees.15 2. Shirley S. Abrahamson, Judicial Independence as a 13 and “Do you support the death penalty?” Voter Guides: Nonpartisan voter guides Campaign Platform, Bench & Bar of Minnesota, Vol. Although many candidates decide against fill- distributed to the voting public generally 61, No. 10 (November 2004). ing out these questionnaires to preserve their contain biographical and professional infor- 3. Eleven states have appointment systems without any ability to sit on cases with disputed issues if mation about candidates. A Justice at State type of judicial election. Call to Action: Statement of they should win, the special interest groups let Campaign poll showed that “more than 67% the National Summit on Improving Judicial Selection, Expanded with Commentary, The National Center for voters know who refused to respond to their of Americans surveyed said that receiving a State Courts 2002, www.ncsconline.org/D_research. questions. For example, the Christian nonpartisan voter guide containing back- 4. Deborah Goldberg, Sarah Samis, Edwin Bender, Coalition of Georgia issued questionnaires to ground information on judicial candidates Rachel Weiss, and Jesse Rutlege (Ed.), The New Politics two Georgia Supreme Court candidates. would make them more likely to vote in judi- of Judicial Elections 2004: How Special Interest Pressure “Challenger Grant Brantley filled out the cial elections.”16 on Our Courts Has Reached a “Tipping Point” - and How to Keep our Courts Fair and Impartial, at vii. group’s survey, but incumbent Justice Leah Merit Selection: Merit selection and Washington, D.C.: Justice at Stake Campaign, 2004. Sears refused to respond.” In its direct mail, retention elections are practiced by several 5. Id. the Coalition indicated “No Response” from states. In merit selection, the executive 6. See Sheila Kaplan & Zoë Davidson, The Buying of the Justice Sears and then attacked her for con- branch nominates a candidate who is con- Bench, NATION, Jan. 26, 1998, at 11. (“The cam- curring in a decision striking down Georgia’s firmed by the legislative branch. In the paign fundraising scandal has drawn new attention to sodomy law.”14 Missouri Plan, adopted by 16 states with four the way moneyed interests buy political favors in Washington. But far from the nation’s capital, many of other states using a hybrid of contested elec- these same doors operate unchecked in a venue that To Speak or Not to Speak tions and the Missouri Plan, a commission may prove more disturbing than the Lincoln bedroom: As the judicial election waters muddy with screens candidates and recommends a short lawsuits, injunctions, pressure from outside list to the executive branch. When selected, groups, and changes in judicial codes of con- the nominee must stand for reelection after CONTINUED ON PAGE 59

THE NORTH CAROLINA STATE BAR JOURNAL 27 The Many Hats of a District Court Judge

B Y J OSEPH E. TURNER

A district court judge has many roles. relationship, the parties are good, decent, hard-working, God-fearing people and In Criminal Cases citizens. District court judges must: These are not easy matters to decide—but Decide who is guilty, who is not; they are only a part of the job. Try to decide who is truthful, who is not; Decide who should stay in jail, who In Juvenile Law Cases should not; District court judges must: Decide what punishment should be Decide whether to pluck a child up out of exacted in the name of society upon a fel- his home and place that child somewhere low citizen and human being. else—whether for his or her protection or These decisions must be made in accor- punishment; dance with our constitutions, laws, and Determine whether a young girl should rules be able to abort the birth of a baby grow- without regard to who is before us, ing inside her without telling her parents Sandra Dionisi/images.com without regard to who represents them, or the father; without regard to what victims, witness- Decide to declare a minor an adult capa- litigants, witnesses, and appropriate court es, families, friends, pressure groups, or ble of living independent of his or her personnel—to the same place, at the same “society” want us to do. parents; time, so cases can be heard; These are not easy matters to decide— Determine whether a parent has forfeited Charged with creating, enforcing, and but they are only a part of the job. for all time the right to be a parent to their bending rules in order to see that hearings child, no matter how much they may love are accomplished fairly, openly, expedi- In Family Law Cases the child they helped create. tiously, and judiciously. District court judges must: These decisions must be made in accor- District court judges are examples, Decide what is in the best interest of a dance with our constitutions, laws and rules arbiters, and evaluators of civility, deco- child they do not know; without regard to who is before us, rum, integrity, and dependability. Decide who is the better parent between without regard to who represents them, District court judges are but one part of a two people who are usually doing their without regard to what the juvenile, the larger machine that can only work if there is best and love their child dearly; parent, our families, friends, or “society” equal work and responsibility from all the Divide the accumulation of property want us to do. other parts between two parties who shared every- These are not easy matters to decide—but The DA and defense attorney, thing “until death do us part” and now they are only a part of the job. The plaintiff’s and defendant’s lawyer, want nothing to do with each other; The community corrections officer and Decide who should bear the financial Within the System of Justice juvenile court counselor, the clerk, bailiff, burdens and how to spread limited District court judges are administrators: law enforcement officers, and other asso- income across two households where Charged with efficient use of time, space, ciated court agencies. once there was one. resources, and people; These actions must be done in accordance These decisions must be made in accor- Charged with moving cases, completing with our constitutions, laws, and rules, dance with our constitutions, laws, and rules dockets, writing and signing orders and without regard to who is before us, without regard to who is before us, judgments, being tough on crime, and without regard to personal relationships, without regard to who represents them, keeping the jails from being over-crowded; oftentimes when, outside of their marital Charged with herding cats—attorneys, CONTINUED ON PAGE 65

28 SUMMER 2006 Promoting Democracy and the Rule of Law in Iraq

B Y G ILL P. B ECK

n January 2005, I was deployed as part of the United States Army Reserve to Camp Victory, Baghdad, Iraq,

in the ancient land of Mesopotamia, often referred to as the “Cradle of Civilization,” between the Tigris and

Euphrates Rivers. I served as the staff judge advocate for Task Force 134 (Detainee Operations), Multi-

National Forces-Iraq

(MNF-I) from JanuaryI to June 2005. As staff judge advocate, I supervised and directed a 45-person staff of judge advocates, paralegals, interpreters, and securi- ty personnel in the prosecution of terrorists in the

Central Criminal Court of Iraq (CCCI), in reviewing

Colonel Gill P. Beck (center) at the Central Criminal Court of Iraq with Lieutenant detainees for release under the procedures of the Colonel Gary Nunn (right) and Major J. Ed Christiansen (left).

Combined Review and Release Board (CRRB), and in providing legal advice to Major General (MG) Brandenburg, the commanding general of Task Force 134, on a wide variety of detainee legal issues. Working closely with Iraqi judges, prosecutors, and government officials, I saw on a daily basis courageous efforts to establish democracy and the rule of law in Iraq. What I saw gave me a deeper understanding of the nature of democracy, the importance of the rule of law, and renewed optimism for the future.

THE NORTH CAROLINA STATE BAR JOURNAL 29 Promoting Democracy in Iraq child in her arms, refused to leave until she racy or “rule of the people” from its Greek In January 2005, I witnessed the Iraqi peo- had voted. root, as wonderful as it is, must be buttressed ple participate in the election of the Iraqi These events underscored the courage and with the rule of law. “Rule of law” is a broad, Transitional Government. For the Iraqi peo- determination of the Iraqi people in their encompassing concept that has been ple, whose history traces back thousands of efforts to establish democracy in their country. expressed in various ways in our country. years to the Sumarian, Babylonian, and As I tried to understand what I was observing, Chief Justice John Marshall in Marbury v. Assyrian civilizations, this was their first thoughts came to mind of what American Madison, 5 U.S. (1 Cranch) 137, 163 (1803), opportunity to vote in free elections, and they patriots must have felt as they risked all in wrote that American government would cease did so in large numbers, far exceeding voter order to establish a democracy in this country. to be “a government of laws, and not of men,” turnouts on a percentage basis in Western The courage of the Iraqi people in voting if its “laws furnished no remedy for the viola- nations despite terrorists attacks on the voting seemed to draw from the same basic human tion of a vested legal right.” Frequently in our sites. Shortly after the election, MG yearning for freedom that motivated Patrick history it has been observed that the law holds Brandenburg and I met with the deputy Henry to declare “Give me liberty or give me all people accountable, or as President prime minister and other Iraqi government death” and that motivated other American Theodore Roosevelt said, “No man is above officials who, with great pride, spoke of the patriots to risk all to establish a democracy in the law and no man below it . . . .”2 Rule of courage of the Iraqi people in the face of ter- this country. law involves many legal themes including: (1) rorism. Reports of mortar attacks and suicide I observed that after decades of tyranny, the law must be understandable so that it may bombers attacking voting sites were frequent, the January 2005 election awoke in the Iraqis guide people’s behavior, (2) the law should be but in each case the Iraqi people, following the a renewed spirit of freedom and hope. Voting the supreme and apply to all persons, and (3) attack, would return to the voting lines. embodied and symbolized that freedom. The courts should be available to enforce the law Reports were received of suicide bombers Iraqi people with whom I spoke recounted and provide fair procedures.3 who, while attempting to disrupt the voting with pride their sense of fulfillment in voting I found that Iraqi lawyers, judges, and gov- lines, were tackled by brave Iraqi citizens who in a free election for the first time. Many ernment officials are equally dedicated to the refused to be intimidated by terrorists. In one viewed it as an act of defiance of Saddam principles of rule of law. These attorneys, report, a mother standing in line with her Hussein and his repressive regime, and there whose civil law heritage differs markedly from child was injured and her child killed, yet the were frequent remarks that a person had a our common law heritage, view the law and mother, recognizing that she could do noth- duty to vote and by doing so symbolically the legal profession as noble callings. They ing more for her child, and with her dead paid Saddam Hussein back for years of tyran- trace with pride Iraqi’s legal heritage, and ny. I heard many Iraqis say voting was stab- when rule of law is mentioned, they point to bing a dagger in Saddam Hussein’s heart. 1792 BC to 1750 BC, when Hammurabi Regardless of their motivation, Iraqis proudly ruled Babylon, an area in modern day Al Notice to Out-oof-SState displayed their purple ink-stained fingers as a Hillah, south of Baghdad. Hammurabi prom- Attorneys Regarding the badge of courage, to demonstrate that they ulgated a Code of Laws for his kingdom, an had participated in the elections that would important step in the development of the rule 2006 Handbook establish their country’s future. of law, when for the first time laws were put in I also saw, in the Iraqi embrace of democ- writing in a systematic fashion and made The 2006 Lawyer’s Handbook was not racy, part of a worldwide democratic trend available for the public. In the preface to the mailed to any member of the State Bar that over the past 100 years has seen democ- laws, Hammurabi wrote that promulgating whose address in the official records of racy as a form of government outdistance the law will “bring about the rule of right- the State Bar is outside the state of other forms of government, so that now eousness in the land, destroy the wicked and North Carolina. However, all of the democracies have emerged in 119 countries, the evil-doers, so that the strong should not information contained in the comprising 62% of all of the countries of the harm the weak . . . and enlighten the land, to Handbook can be found online at the world.1 The Iraqi people have seen the liber- further the well-being of mankind.”4 State Bar’s website, www.ncstatebar.org. ating effect of democracy and have embraced For Iraqi lawyers and judges, Hammurabi The website contains all current regula- it fully. They have said “yes” to democracy and the rule of law is a reality that was inter- tions, Rules of Professional Conduct, through their actions in voting in the face of rupted by the reign of Saddam Hussein, who and adopted ethics opinions. A pdf of great personal threats of terrorism. Now, as elevated himself above the law. In one meeting the 2006 Handbook can also be down- never before, I understand that we in America with a large group of judges, I heard repeated loaded by logging into the Member are blessed with a great democracy, and that examples of how Saddam Hussein and his Access section. the democratic trend strikes a universal chord sons had disregarded the law and used it for because its trust is in people—not kings, dic- their own personal advantage. Towards that If you would still like to obtain a paper tators, or tyrants—to determine the course of end, Saddam Hussein established the edition of the Handbook, please contact their future. I also understand that voting Baghdad Revolutionary Court, and special the [membership department] by call- expresses and symbolizes human freedom. temporary courts under his control, from ing 919.828.4620. which no appeals were allowed,5 and he and Promoting Rule of Law in Iraq his sons intimidated the judiciary. Iraqi judges Following the elections, I saw that democ- told me of family members who had been

30 SUMMER 2006 “On a daily basis I saw brave Iraqi judges demonstrating their commitment to the rule of law even at great personal risk for themselves and their families.”

killed at the direction of Saddam Hussein in law to a society’s proper functioning. facing imminent defeat in 2003. He directed disregard of the law. One judge told me of Promotion of the rule of law in Iraq also that the prison doors be opened, freeing tens being approached by Uday Hussein and told requires improvement of police and investiga- of thousands of murderers and other criminals to enter a judgment of conviction for a group tive techniques. Historically, the Iraqi police into cities throughout Iraq. What ensued was of ten prostitutes. The judge had indicated relied on confessions, which too often were to be expected. Courthouses were ransacked, that the law required a trial, and the response coerced. As a result, the Iraqi courts developed and court and police records destroyed. In the from Uday Hussein was that no trial was nec- safeguards to counter the problem of unreli- years that followed it was not unusual to take essary because the women had already been able, coerced confessions. Those procedures a detainee, captured for firing a rocket pro- executed. This Iraqi judge, at great risk to included requiring special formalities for out- pelled grenade or setting off an improvised himself and his family, refused to the enter the of-court confessions, including a special affir- explosive device designed to kill American sol- judgment of conviction and paid for it dearly. mation of truthfulness, a thumbprint, and diers, to Iraqi court and have a judge recognize In doing so, that judge demonstrated that the other formalities. An out-of-court confession the individual as a convicted criminal from concept of rule of law—that the law is that did satisfy those formalities was given years before. Since his release, however, the supreme and that courts must enforce the law minimal weight, if any. Additionally, a two criminal had changed his form of criminal through fair procedures—was a reality that witness procedural rule was applied to prove activity from theft or murder to attacking Iraqi jurists would not disregard regardless of criminal conduct. In preparing evidence for American soldiers and Marines in terrorist- the consequences. presentation to Iraqi prosecutors, military funded operations. In January 2005, several Iraqi judges were judge advocates and American law enforce- In 2003 the Central Criminal Court of assassinated or the subjects of assassination ment personnel worked to facilitate the Iraqi Iraq (CCCI) was established to promote rule attempts by terrorists. The terrorists in target- legal system’s movement from a confession- of law in Iraq. Mindful of the admonition of ing the judges understood the central role that based to a forensic-based system, with greater T.E. Lawrence (Lawrence of Arabia), who suc- the rule of law plays in a society. The terrorists reliance on explosive residue and fingerprint cessfully led Arabic military forces against the hoped to undermine the rule of law and evidence. Turkish forces in the Middle East in the early replace it with chaos. Despite their attempts, This transition, however, was not easy part of the Twentieth Century, that it is “bet- the Iraqi judges were not deterred, but because it required retraining of almost the ter the Arabs do it tolerably than you do it strengthened in their commitment to bring entire Iraqi police force. One American police with your own hands,”7 the CCCI was com- the rule of law to Iraq. On a daily basis, I saw trainer relayed a story about a training session posed of Iraqi prosecutors, panels of three brave Iraqi judges demonstrate their commit- in which an Iraqi police trainee had skillfully Iraqi judges, and Iraqi defense counsel. ment to the rule of law even at great personal obtained a confession from an individual Instead of trying to impose a common law, risk for themselves and their families. believed to have attacked American soldiers. accusatorial prosecution system, the CCCI Through the terrorists acts, and what they The American law enforcement instructor applied the Iraqi civil law and inquisitorial sought to destroy—judges, lawyers, police, told the trainee that the job was not complete prosecutorial model. Pre-Saddam Hussein and government officials—I understood bet- until the paperwork was finished; that it was Iraqi criminal procedures and substantive law ter what the rule of law means. I understood necessary to prepare a written report of the were used. American military prosecutors that the rule of law unifies a society. The ter- confession, and to put the confession in the assisted in coordinating the appearance of wit- rorists in Iraq are somewhat like the proper form so that the Iraqi court would nesses, marshaling evidence, and assisting the Shakespearean character “Dick the Butcher” accept it into evidence. The trainee did not Iraqi judges as directed, but left the adminis- who, as part of the gang of Jack Cade, when respond. The trainer repeated the instruction, tration of justice to the Iraqis. talking about overthrowing the monarchy, and again the trainee did nothing. The The wisdom of allowing the Iraqis to run said “The first thing we do, let’s kill all the American advisor then asked why the trainee their own judicial system to deal with terror- lawyers.”6 The terrorists in Iraq, like Dick the was not preparing the written records of the ists was readily apparent as they demonstrated Butcher, know that the rule of law provides confession. Another Iraqi trainee interjected, repeatedly that they could better handle the fabric that holds society together and that “He can’t read or write,” to which an administration of justice in Iraq than destroying the lawyers and judges tears apart American advisor aptly commented, “But he Americans could. For example, in dealing the fabric of society. Despite being in the sure knows how to get a confession.” Despite with Jihadists—the foreign fighters who have “cross-hairs” of the terrorists, the Iraqi judges these challenges, every day, more and more entered Iraq from Saudi Arabia, Syria, and and lawyers continued to re-establish the rule Iraqi police officers are being trained and are other countries to wage the holy war—the of law in Iraq. Their courage and commit- assuming their role in combatting terrorism. Iraqi prosecutors and judges had the ability to ment was inspiring and demonstrated to me Saddam Hussein recognized the central sift through purported explanations of defen- the integral role of attorneys, judges, and the importance of rule of law in Iraq’s future when dants with special skill. Often detainees, when

THE NORTH CAROLINA STATE BAR JOURNAL 31 as a warning to others not to work with the you are obviously a very important man. How new government. Despite public knowledge many wives do you have?” When the US 2006 Handbook of this, the local police, prosecutor, and court attorney responded with “one,” the Iraqi Now Available Online were not going forward with this case judge replied, “That will not do for a man of because they had been intimidated by the your stature.” Despite cultural differences, terrorists. The chief judge explained to me Iraqi and American attorneys share an abiding A pdf file of the 2006 Lawyer’s that this is why it is necessary to have a commitment to the rule of law. CCCI, a federal court, which is not intimi- Handbook is available for down- dated by the terrorists, and can ensure that Conclusion load on the State Bar’s website the rule of law is a reality throughout Iraq. Today, Iraqi attorneys are once again (ncstatebar.org) in the Members Too often, all we see of Iraq is what is on embracing the rich Iraqi legal tradition, turn- Access section. the national news—attacks on civilians, ing away from the aberration of the decades of police, and the new Iraqi government. After repression under Saddam Hussein, to estab- days and days of such reports, one might lish democracy and re-establish the rule of law asked why they were in the city in which they become convinced that things are going in Iraq. It was indeed an honor to work with were captured, such as Fallujeh, they would badly. While it is true that Iraq remains a those talented and service-oriented Iraqi attor- provide a false excuse, such as to attend school dangerous place, on a daily basis hundreds of neys and judges who are committed to public or to meet with a group of people. The Iraqi Iraqi attorneys, judges, and government offi- service and making their country, to quote judges could pick up on accents and deter- cials are establishing the rule of law in Iraq. President John Adams, “a government of laws, mine whether the individual was truly from These Iraqi attorneys, who daily risk their not men.”8 My assignment in Iraq taught me Fallujeh or elsewhere. As I learned later, the lives, and often work for less than $100.00 that attorneys in Iraq share with attorneys in written form of Arabic is understandable per month, provide an inspiring example of this country a dedication to the rule of law throughout the Arabic world, but the spoken government and public service attorneys and a professional commitment to place serv- Arabic differs markedly from place to place. working to make the rule of law a reality in ice to their country above personal gain and Repeatedly, the Iraqi judges, through skillful their country. I asked one attorney, who was personal safety. My experience in Iraq reaf- questioning and a keen ear for dialects, were fluent in English, why he worked as a gov- firmed that attorneys, whether in the United able to obtain admissions from defendants ernment attorney in Iraq when he could have States or in Iraq, are indeed part of a noble that in fact they were from Syria, Saudi made an incredible amount of money work- calling. Arabia, or other countries and that they were ing for an international law firm. His in Iraq to wage Jihad. response was that he wanted to be part of the Gill Beck is an assistant United States The CCCI, while initially resisted establishment of a democratic government in Attorney in the Middle District of North because the Iraqi judicial system had histori- his country. He knew that he could make Carolina and a colonel in the United States cally relied on provincial courts, was soon considerable money doing other work, but Army Reserve assigned as commander of the endorsed by the Iraqi government and judi- this was his chance, the chance of his genera- 12th Legal Support Organization, which pro- ciary. The CCCI became a “federal” court tion, to do something of lasting value for his vides legal support to Army Reserve units in system that was needed in the effort to country. This attorney represents what is hap- North and South Carolina. The opinions in this restore rule of law in Iraq. Because of insta- pening all over Iraq, as attorneys and govern- article are the author’s and not those of the bility in portions of the Sunni Triangle, it ment officials are working diligently at estab- United States Department of Justice or United became extremely difficult for the courts to lishing the rule of law in a democratic nation. States Army. work in those areas. I learned of a striking They hope that one day their descendants example of that one day while meeting with will look back at them the way Americans Endnotes the chief judge of the CCCI. He recessed our look back with reverence at the framers of the 1. Fareed Zakaria, The Future of Freedom p. 13 (W.W. meeting so that he could speak with a lady Constitution. Norton & Co. New York 2004). who had arrived in court with her two chil- This Iraqi attorney, like many other Iraqi 2. Theodore Roosevelt, Annual Message, 1903 in The Speaker’s Book of Quotations, ed. Henry O. Dormann dren. She was dressed completely in black, in attorneys I met, share with attorneys in North (Ballantine Books 2000). a long black dress with long sleeves called a Carolina a belief that the law is a noble calling, 3. See Richard Fallon, “The Rule of Law as a Concept in dishdasheh, with a scarf-like cover called a that attorneys serve the people, and that the Constitutional Discourse,” 97 Column. L. Rev. 1, 4 hejab, and was crying profusely as she aim of the law is justice. They see the law as (Jan. 1997). explained what had happened to her hus- providing a framework of rules, adaptable 4. Hammurabi’s Code band. After the meeting, the chief judge through the democratic process, that allow 5. John Keegan, The Iraqi War, p. 52 (Alfred A. Knopf, explained to me that terrorists had believed people freedom while providing them securi- New York)(2004). the lady’s husband was supporting the Iraqi ty and allowing them to achieve their best 6. Shakespeare, Henry VI, part 2. interim government, and decided to make selves. That, however, is not to say that there 7. T.E. Lawrence, The Twenty-Seven Articles of T.E. Lawrence, published in The Arab Bulletin, Aug. 20, an example of him. The terrorists had, in are no differences. One Iraqi judge, after being 1917. broad daylight, killed the lady’s husband, introduced to a US Attorney from Iowa with 8. The Works of John Adams, ed. Charles Francis Adams, cutting off his limbs, and distributing his an especially distinguished resume, asked, vol 4, p. 106 (1851). arms and legs throughout the neighborhood “Your accomplishments are quite impressive;

32 SUMMER 2006 The View from the Vault

B Y T HOMAS P. D AVIS

he North Carolina Supreme Court Library is open weekdays (February 2005): “On October 1, 2004, the new pre-trial discovery laws for felony criminal cases went into effect. By enacting the new from 8:30 a.m. to 4:30 p.m., except on state holidays. See the discovery rules in criminal cases, the North Carolina General Assembly recognized the problems of evidence being withheld in viola- Library’s website for its current access policy tion of Brady v. Maryland . ...”

Jerry Hartzell, North Carolina Observations (www.aoc.state.nc.us/www/public/html/sc_library.htm). on Federal Jurisdiction under the New Class Action Act, 10 NORTH CAROLINA STATE BAR JOURNAL 12 (Fall 2005): The author notes TDuring the renovation of the Justice Building the Library is located in the old Wachovia that “the new Act could affect North Carolina more than most other states: the ‘certified question’ procedures that the Act’s supporters Building, Banking Level, at 227 Fayetteville Street. The following annotated list selects essays claim will allow states’ highest courts to retain an element of control over the meaning of their state’s laws is unavailable in North published in 2005 which may be of interest to the profession. These essays appeared in law Carolina.”

Joan G. Brannon, 2005 Legislation Affecting reviews, bar association newsletters, legal newspapers, legal bulletins, and this bar journal. Small Claims Actions and Other Non-Criminal Functions of Magistrates, in ADMINISTRATION OF JUSTICE BULLETIN, no. The selections were compiled by North Carolina Supreme Court Librarian Thomas P. Davis. 2005/07 (November 2005)

John Rubin, 2005 Legislation Affecting Criminal Law and Procedure, Electronic Recording Act.” The amendments ADMINISTRATION OF JUSTICE BULLETIN no. I. Essays Published in 2005 Relating to have an impact on Chapter 47, but “the most 2005/08 (December 2005): Includes a North Carolina Law significant changes come in the sections that lengthy discussion of the “Blakely bill.” effect a major rewrite of Chapter 10B, which Recent Legislation regulates Notaries.” “Sections 1, 2, 10, and 13 Janet Mason, 2005 Legislation: Juvenile Law, of this act are effective when they become law JUVENILE LAW BULLETIN no. 2005/02 Jim Lore, Dolph Sumner, Hank Patterson, (probably August 2005, Ed.). The remainder (November 2005) Victor Farah & Leto Copeley, 2005 of the act becomes effective December 1, Amendments to the Workers’ Compensation 2005, and applies to notarial acts and applica- Judge Ripley E. Rand, Highlights and Act, 19 THE COURSE AND THE SCOPE 1 tions for notary commissions and recommis- Outline of the New Criminal Discovery Rules (December 2005) sions made on or after that date.” for North Carolina, 24 THE TRUE BILL 1 (March 2005) Chris Burti, Electronic Recording/Notary Act Maitri Klinkosum & Brad Bannon, Adopted, 26 CAMPBELL LAW OBSERVER 1 Advocating for Those Left Behind: The Need Procedure /Evidence (October 2005): “North Carolina has adopt- for Discovery Reform in Non-capital ed its version of the Uniform Real Property Post-conviction Cases, TRIAL BRIEFS 8 Jessica Smith, Pleas and Plea Negotiations in

THE NORTH CAROLINA STATE BAR JOURNAL 33 North Carolina Superior Court, in 2005/03 judges and lawyers are left to apply Howerton Land much more narrowly in Ellis-Don ADMINISTRATION OF JUSTICE BULLETIN (July to future cases without fully understanding Const., Inc. v. HKS, Inc., 353 F.Supp.2d 603 2005): “In 2002-03, a total of 2,887 superior the substantive and procedural foundation for (M.D.N.C. 2004). In Ellis-Don Judge court criminal cases were disposed of by jury the rule. The resulting ad hoc development of Bullock writes: trial. In that same period, 69,649 cases were the law in this vital area will likely breed con- As noted, North Carolina’s economic loss disposed of by guilty plea.” “This bulletin fusion and inconsistent results. This article rule bars claims in tort for purely econom- summarizes the constitutional, statutory, and will attempt to reconcile the reasoning in ic losses in the sale of goods covered by case law regarding pleas and plea negotiations Howerton with the rules of evidence and contract law, including the UCC. It does in superior court.” explain the procedural and substantive differ- not limit tort actions that arise in the ences between the federal approach under absence of a contract, nor is there any indi- J. Phillip Griffin & Billy Sanders, The Daubert and the North Carolina test applied cation that the courts of North Carolina Constitution and Fairness in Criminal in Howerton. It will also suggest a change to have expanded the rule beyond its tradi- Sentencing, 10 THE CONSTITUTIONALIST 1 the procedure courts use to determine admis- tional role in products liability cases. ... (June 2005): “This article traces the history of sibility of expert testimony that will be more CRZ cites some broad statements of the the line of cases culminating in the Booker consistent with the rules of evidence and the economic loss rule that proclaim that “the decision and discusses the impact of this and concerns of the court in Howerton. economic loss doctrine prohibits recovery other decisions on North Carolina sentencing for economic loss in tort,” Land v. Tall law and policy.” Mark Canepa, Making Your Way Through House Bldg. Co., 602 S.E.2d 1, 4 (N.C. the Minefield of Expert Witness Selection in App. 2004), and depends on such broad Kenneth S. Broun, Scientific Evidence in Malpractice Cases in North Carolina, 10 THE characterizations of the rule to argue that North Carolina after Howerton – A NORTH CAROLINA STATE BAR JOURNAL 6 the cause of action recognized in Davidson Presumption of Admissibility?, 10 N.C. STATE (Winter 2005): The author surveys the cases is no longer valid in North Carolina. Such BAR JOURNAL 8 (Spring 2005): “One of the that deal with the definition of “same or sim- statements are made, however, in cases things that makes a prediction about the ilar communities” in malpractice actions pur- deciding issues of products liability in future application of the principles set forth in suant to N.C. GEN. STAT. sec. 90-21.12. This which the transaction giving rise to the dis- Howerton especially difficult is that a reading survey covers Pitts v. Nash Day Hospital, Inc., pute was governed by the law of contracts. of Howerton side-by-side with Daubert shows 605 S.E.2d 154 (N.C. App. 2004); Barham v. Furthermore, all of the cases cited within very little difference between the fundamental J. Hawk MD, et al, 165 N.C. App. 708 such cases also address issues of products legal premises upon which the two cases are (2004); Coffman v. Roberson, 153 N.C. App. liability arising under contracts for the sale based. A fair conclusion is that the Court in 618 (2002); Smith v. Whitmer, 159 N.C. App. of goods. ... That does not mean...that the Howerton was not rejecting the Daubert opin- 192 (2003); Bak v. Cumberland County doctrine has expanded to preclude all ion, but rather the Daubert culture that has Hospital System, Inc., 165 N.C. App. 904 claims in tort for economic damages in the arisen in the federal courts since that case. The (unpublished); and other cases. absence of a contract, or, more narrowly, Court took pains to make sure that the North outside the products liability context. Carolina courts were not bound by federal Alan D. Woodlief, An Introduction to the Id. at 606-07. Of Judge Bullock’s analysis, Mr. precedent in dealing with issues involving sci- North Carolina Pattern Jury Instructions, 10 Shelton says that “North Carolina courts entific or technical evidence. The tests may be NORTH CAROLINA STATE BAR JOURNAL should ignore this dicta and continue to the same but trial court judges were warned (Summer 2005) extend the reach of the economic loss rule.” against applying the rigorous standards for admissions currently being applied in the fed- Miscellaneous Shea Riggsbee Denning, Public School eral system.” Funding in the Summer of 2005: North Joseph J. Kalo, North Carolina Oceanfront Carolina School Boards Association v. William A. Woodruff, The Admissibility of Property and Public Waters and Beaches: The Moore, in 108 LOCAL GOVERNMENT LAW Expert Testimony in North Carolina after Rights of Littoral Owners in the Twenty-First BULLETIN (November 2005) Howerton: Reconciling the Ruling with the Century, 83 NORTH CAROLINA LAW REVIEW Rules of Evidence, 28 CAMPBELL LAW REVIEW 1427 (2005) Joseph W. Goodman, Leandro v. State and 1 (2005): While the Howerton decision the Constitutional Limitation on School removed all doubt as to whether North Gregory L. Shelton, The Economic Loss Rule Suspensions and Expulsions in North Carolina adopted Daubert’s substantive stan- in North Carolina: Time to Wake the Sleeping Carolina, 83 NORTH CAROLINA LAW REVIEW dard, it did not address how the North Giant, 10 NORTH CAROLINA STATE BAR 1507 (2005) Carolina test for admitting expert testimony JOURNAL 27 (Fall 2005): The author argues fits within the broader context of the North that Land v. Tall House Building Co, 165 N.C. Seth Warren Whitaker, State Redistricting Carolina Rules of Evidence. Howerton also App. 880 (2004) “practically invites North Law: Stephenson v. Bartlett and the Judicial failed to explain how substantially identical Carolina lawyers and courts to exercise the full Promotion of Electoral Competition, 91 language in the governing rules and the same potential of the economic loss rule” and that VIRGINIA LAW REVIEW 203 (2005): “In criteria of admissibility, i.e. reliability, could we “should accept the invitation.” As the Stephenson I, the court reached a completely produce such a different test. As a result, trial author notes, a federal district court has read unexpected resolution to a lawsuit over the

34 SUMMER 2006 state’s legislative redistricting plans by fashion- 1 (May 2005) Carolina Supreme Court moved slowly in its ing a set of judicially created redistricting cri- legal interpretations, not making wholesale teria. In Stephenson II, the court provided fur- Michael Schadewald, State Courts Continue changes as other states’ courts had, and taking ther information about just how stringent it to Grapple with the Geoffrey Issue, 24 few steps that altered the way business is intended the criteria devised in Stephenson I to JOURNAL OF STATE TAXATION 19 (Summer done.” “What a difference a decade makes. In be and gave a glimpse of the very narrow 2005): This discussion of Geoffrey and related the last 10 years, the Supreme Court has range of discretion remaining for the North state court decisions summarizes and quotes reversed a 100-year string of its own cases, has Carolina General Assembly in legislative from A&F Trademark Inc. v. Tolson, 167 N.C. revamped how the state’s public schools oper- redistricting. A careful analysis of the results of App. 150 (2004). ate, and has ordered the refund of taxes to tens these two cases suggests that other states may of thousands of citizens.” “It is not unusual for be able to use their own state constitutions to Jurisprudence state courts to decide matters of public poli- reform the redistricting process—by creating cy.” “What is unusual is the breadth of recent limitations on legislative choices in redistrict- Logan Sawyer III, Constitutional Theory in decisions and their impact on citizens and ing that reduce the role of partisan politics— Practice: Originalism in Brown v. Board of industry.” “Beyond the legal arguments, the if they are willing to embrace the sort of judi- Education, 11 THE CONSTITUTIONALIST 1 constitutional issues with which the Court has cial activism that characterizes the Stephenson (September 2005): This “brief examination wrestled have affected areas usually addressed rulings. To date, no other state has been as of the landmark case, Brown v. Board of by the executive branch and the General aggressive as North Carolina; however, the Education, and the academic debate over a Assembly—taxes and education. This incur- problems which appear to have motivated the well-known constitutional theory, original- sion into areas traditionally left to the two Stephenson court are hardly unique to that ism, shows how constitutional theory can other branches of government is not an ordi- state.” offer practical tools to practicing lawyers.” nary occurrence.”

Jon Heyl & Allyson Labban, Breach of J. Michael McGuinness, The Rising Tide of Paul C. Ridgeway, Practice Before the North Contract Claims Under Chapter 75, 15 North Carolina Constitutional Protection in Carolina Business Court, TRIAL BRIEFS 5 ANTITRUST NEWS 1 (March 2005) & 27 the New Millennium, 27 CAMPBELL LAW (October 2005): Mr. Ridgeway outlines the NOTES BEARING INTEREST 7 (September REVIEW 223 (2005) history of this specialized court, and notes its 2005): “The commercial disputes for which recent expansion to Mecklenburg County Chapter 75 claims are made include cases of Court Administration/History/Trends under Special Superior Court Judge Albert breach of contract. These breach of contract Diaz, and possible expansion to Wake County cases test the scope of Chapter 75, requiring Laura Langer & Teena Wilhelm, The under Special Superior Court Judge John the courts to answer the question of when a Ideology of State Supreme Court Chief Jolly. breach of contract is ‘unfair and deceptive’ Justices, 89 JUDICATURE 78 conduct.” “This article reviews the history of (September-October 2005): With a score of Danny G. Moody, ed., Society News: Chapter 75 and pertinent state and federal 0 as most ideologically conservative and a Newsletter of the North Carolina Supreme cases in an effort to divine general guidelines score of 100 as most liberal, Chief Justice Lake Court Historical Society (Fall 2005): This that practitioners may use when evaluating a has achieved a score of 49.81, according to new publication includes a message for the breach of contract claim under chapter 75.” these authors. Not only do the authors think Society President, Franklin Freeman; an they can measure empirically the ideology of announcement of the planned presentation of Mary Wright, A Comparative Analysis of the 50 chief justices, they are bold enough to the Ruffin Jr. portrait; a description of the Selected North Carolina Contractual extend the gloss to associate judges of the var- presentation of the Taylor portrait; a feature Provisions, 27 NORTH CAROLINA CENTRAL ious supreme courts. Comparing the Chiefs about the Supreme Court holding court in LAW JOURNAL 23 (2004): “This article will to their brethren, the authors say: the Chowan County Courthouse; a story examine selected North Carolina contractual Another observation from these data is about the renovation of the Justice Building... doctrines and statutory provisions in relation that variation exists in the degree of simi- and more. to their relevant counterparts in other juris- larity between chief justice ideology and dictions. Particular emphasis will be placed on the average ideology of all justices on the II. Essays Published in 2005 of General those doctrinal and statutory applications that state supreme court. . . . North Carolina, Interest depart from the majority or prevailing view. Tennessee, California, Iowa, and New Additionally, the article will focus on the sig- Mexico have chief justices on the court in Judicial Process nificance of developments in the law in areas 2005 who are almost indistinguishable where the status of a particular doctrine is from the average associate justice. Judge Richard M. Markus, A Better uncertain as a result of conflicting case law Standard for Reviewing Discretion, 2004 and interpretation.” Katherine White, Deliberate N.C. Supreme UTAH LAW REVIEW 1279: According to this Court Accelerates Pace on Matters of Taxation former chief judge of the Ohio Court of Diane M. Juffras, Independent Contractor or and Education, 21 NORTH CAROLINA Appeals, “Too often, appellate court standards Employee? The Legal Distinction and its INSIGHT 90 (March 2005): “In its first 175 of review for discretionary decisions simply Consequences, 32 PUBLIC EMPLOYMENT LAW years of existence (1819-1994), the North report the appellate panel’s personal chagrin

THE NORTH CAROLINA STATE BAR JOURNAL 35 with the trial court’s action, its indifference to Text cannot be understood absent a context. the historical legitimacy of judicial review. the trial court’s resolution of the issue, or its Rejecting legislative history simply eliminates Judicial nullification of unconstitutional laws unwillingness to do anything about it. As a one possible interpretive context, without in not only consistent with the frame provid- result, they give little direction to the trial identifying some other context to fill the ed by original meaning, it is expressly author- judge who seeks to exercise discretion proper- interpretive void. Thus, the textualist account ized by the text and is entirely justified on ly, or to the next appellate panel that tries to is incomplete.” “Rejecting legislative history originalist grounds.” review it rationally. This article suggests also fails the test of consistency with constitu- another approach, which may facilitate efforts tional government. While Justice Scalia offers Eugene Kontorovich, Disrespecting the by both trial and appellate courts to accom- bicameralism and presentment as the consti- ‘Opinions of Mankind’: International Law in plish their respective duties consistently and tutional measuring stick, he follows his logic Constitutional Interpretation, 8 GREEN BAG reliably.” The judge suggests that, “Before only half way—he accepts the text produced 2D 265 (Spring 2005): “The invocation of according deference to a trial court’s discre- by that process, but not the context. This sep- ‘decent respect’ to suggest that American tion, the appellate court should confirm that: aration of text and context cannot be justified. courts should defer to or even consider foreign (1) the governing principle authorizes discre- Because legislative history reflects the context views is in effect a misquotation. Its force tion for that type of decision, instead of a con- of bicameralism and presentment, it provides depends entirely on lifting the words from sistently applied rule of law; the underlying the constitutionally preferred context for their context—on ignoring the second half of facts on which the trial court relied authorized determining statutory meaning.” the clause from which the words are taken. it to make a choice; (2) the court’s choice fell The Declaration [of Independence] in no way within an acceptable range; (3) the court did Michael Abramoqicz & Maxwell Stearns, suggests that ‘decent respect to the opinions of not consider improper facts in determining its Defining Dicta, 57 STANFORD LAW REVIEW mankind’ requires following those opinions. ability to choose or in making its choice; (4) 953 (2005): “After critiquing the most influ- Rather, all that decent respect ‘requires’ of us the court did not refuse to consider proper ential definitions of holding and dicta, we is that we explain our actions to the world— factors in determining its ability to choose or offer and defend our own: A holding consists that the colonists ‘declare the causes which in making that choice; and (5) the court did of those propositions along the chosen deci- impel them to the separation.’ ... Thus, not weigh those factors irrationally in deter- sional path or paths of reasoning that are actu- ‘decent respect’ is not about importing foreign mining its ability to cho[o]se or to make that ally decided, are based upon the facts of the opinion but rather about exporting our views choice.” case, and lead to the judgment. A proposition to an interested foreign audience, in the form in a case that is not holding is dicta.” The of a Declaration.” G. Edward White, Historicizing Judicial authors identify the article, Michael C. Dorf, Scrutiny, 57 SOUTH CAROLINA LAW REVIEW Dicta and Article III, 142 UNIVERSITY OF SYMPOSIUM: TO WHAT EXTENT SHOULD (2005): “[T]here has been very little discus- PENNSYLVANIA LAW REVIEW 1997 (1994), as THE INTERPRETATION AND APPLICATION OF sion among commentators—and most of that “the only major law review article in the past PROVISIONS OF THE U.S. CONSTITUTION BE attenuated—about how or why the Court’s 50 years exclusively focused on offering a INFORMED BY RULINGS OF FOREIGN AND scrutiny levels jurisprudence emerged. .... broad theoretical treatment of the distinction INTERNATIONAL TRIBUNALS, 26 UNIVERSITY [T]here have been few efforts to analyze the between holding and dicta.” OF HAWAII LAW REVIEW (Summer 2004) scrutiny levels practice as a historical phenom- enon. This seems all the more striking because Thomas Healy, The Rise of Unnecessary SYMPOSIUM: DUAL ENFORCEMENT OF for a time span of 150 years, in which the Constitutional Rulings, 83 NORTH CAROLINA CONSTITUTIONAL NORMS, 46 WILLIAM AND Court rendered numerous decisions review- LAW REVIEW 847 (2005): “The article begins MARY LAW REVIEW (February 2005): This ing the acts of legislatures on constitutional by arguing that the rise of unnecessary [feder- issue includes remarks by Chief Justice grounds, it made a quite different set of scruti- al] constitutional rulings is both part of a larg- Rehnquist, and such articles as James A. ny level choices from the sets it has employed er trend toward judicial supremacy and the Gardner, Whose Constitution Is It? Why since the 1930s.” result of pressures specific to each of the areas Federalism and Constitutional Positivism Don’t in which the Court has authorized such rul- Mix, and Robert F. Williams, State Courts Honorable Jon O. Newman, Decretal ings. It then considers whether the Court’s Adopting Federal Constitutional Doctrine: Language: Last Words of an Appellate embrace of unnecessary constitutional rulings Case-by-Case Adoptionism or Prospective Opinion, 70 BROOKLYN LAW REVIEW 727 ...can be squared with Article III’s ban on Lockstepping? Beyond its theoretical interest, (2005): The judge describes the practice in advisory opinions...” this SYMPOSIUM is of some note because it the Second Circuit in using decretal language cites decisions of the North Carolina Supreme (that part of the appellate opinion that states Randy E. Barnett, The Original Meaning of Court. In Williams’ article, for example, foot- what a court of appeals is ordering). the Judicial Power, 12 SUPREME COURT note 81 cites State v. Spivey, 579 S.E.2d 251, ECONOMIC REVIEW 115 (2004): The article 254 (N.C. 2003), and footnote 143 quotes Paul E. McGreal, A Constitutional Defense of presents an originalist defense of the institu- State v. Jackson, 503 S.E.2d 101, 103 (N.C. Legislative History, 13 WILLIAM & MARY tion of judicial review. “With this approach to 1998). BILL OF RIGHTS JOURNAL 1241 (April 2005): originalist interpretation (and its limits) in “On its own terms, rejecting legislative histo- mind, the overwhelming majority of courts PANEL DISCUSSION: CITATION OF ry, without saying more, makes little sense. and scholars are correct, I submit, to accept UNPUBLISHED OPINIONS: THE APPELLATE

36 SUMMER 2006 JUDGES SPEAK, 74 FORDHAM LAW REVIEW 1 tion into the recusal process.” ferent from that which may be seen in the (2005) pages, for example, of the Federal Reporter. SYMPOSIUM: RECUSAL ON APPEAL, 7 THE Classical Athens thus provides a valuable case Criminal Procedure JOURNAL OF APPELLATE PRACTICE AND study of a legal system that favored equity and PROCESS (Spring 2005): This issue includes discretion over the strict application of gener- Benjamin E. Rosenberg, The Analysis of M. Margaret McKeown, Don’t Shoot the alized rules. But it managed to do so in a way Defective Indictments After United States v. Canons: Maintaining the Appearance of that did not destroy predictability and legal Cotton, 41 CRIMINAL LAW BULLETIN 463 Propriety Standard; Howard J. Bashman, certainty in the parts of the system where they (September-October 2005): “Courts’ strong Recusal on Appeal: An Appellate Advocate’s were necessary.” inclinations to find defects in indictments Perspective; and Ryan Black & Lee Epstein, harmless so long as the defendants had notice Recusals and the “Problem” of an Equally Jack Penchoff, Compacts Are Contracts, 48 of the crimes with which they were charged Divided Supreme Court. Statenews 22 (August 2005): “The purposes has led to a decline in the significance of of [state] compacts have evolved since 1783 as indictments, and an evisceration of the grand Eileen C. Gallagher, The ABA Revisits the the governing of states has grown more com- jury’s role as a body that stands between the Model Code of Judicial Conduct: A Progress plex. Between 1783 and 1920, only 36 com- prosecutor and the defendant; among the Report, 44 THE JUDGES’ JOURNAL 7 (Winter pacts were enacted, and most of those settled people most strongly affected by the decline 2005): “Perhaps the most significant change boundary disputes. Over the past 85 years, are those who are acquitted at trial, for such in the revision is the decision to restructure however, states have enacted more than 160 people suffer a significant harm by virtue of the canons into rules.” “The rules-based for- compacts.” the defective indictment, and yet have no mat gives guidance on which actions are remedy ...” enforceable—and thus would subject the Teresa L. Conaway, Carol L. Mutz & Joann judge to discipline if violated—and which are M. Ross, Survey: Jury Nullification: A Katharine A. Ferguson, The Clash of Ring v. not. In general, the commission has chosen to Selective, Annotated Bibliography, 39 Arizona and Teague v. Lane: An Illustration move hortatory language to the commentary VALPARAISO UNIVERSITY LAW REVIEW 393 of the Inapplicability of Modern Habeas sections. This change illustrates a broader (2004) Retroactivity Jurisprudence in the Capital debate on the appropriate role of judicial con- Sentencing Context, 85 BOSTON UNIVERSITY duct codes in general. Some commentators LAW REVIEW 1017 (2005) look to codes to provide a set of enforceable rules for disciplinary purposes. Others believe Notice of Availability of Allen D. Boyer, The Trial of Sir Walter that judicial codes of ethics should contain Ralegh: The Law of Treason, The Trial of aspirational principles as well as enforceable Competitive Grant Funds Treason, and the Origins of the Confrontation rules.” Clause, 74 MISSISSIPPI LAW JOURNAL 869 for Calendar Year 2007 (2005): “Very recently, in Crawford v. SYMPOSIUM, JUDICIAL PROFESSIONALISM IN A Washington, the United States Supreme Court NEW ERA OF JUDICIAL SELECTION, 56 The Legal Services Corporation (LSC) demonstrated that Sir Walter Ralegh’s Case is MERCER LAW REVIEW (2005) announces the availability of competi- not merely a bleak episode of legal history, but tive grant funds to provide civil legal rather that it remains a vital legal precedent, Miscellaneous services to eligible clients during calen- one from which a redeeming lesson may be dar year 2007. A Request for Proposals drawn.” The author presents newly discovered Adriaan Lanni, ‘Verdict Most Just’: The Modes (RFP) and other information pertaining materials “which allow us to understand the of Classical Athenian Justice, 16 YALE to the LSC grants competition is avail- prosecution’s argument.” JOURNAL OF LAW & THE HUMANITIES 277 able at www.ain.lsc.gov. In accordance (2004): “In my view, the Athenian legal sys- with LSC’s multiyear funding policy, Judicial Conduct tem was more complex than is generally grants are available for only specified thought. The Athenians made a conscious service areas. Information on this is Amanda Frost, Keeping Up Appearances: A decision to reject the rule of law in most cases, included in Appendix-A of the RFP. Process-Oriented Approach to Judicial and they did so because they thought giving Applicants must file a Notice of Intent Recusal, 53 THE UNIVERSITY OF KANSAS LAW juries unlimited discretion to reach verdicts to Compete (NIC) in order to partici- REVIEW 531 (2005): This article “describes based on the particular circumstances of each pate in the competitive grants process. how judicial disqualification operates in a pro- case was the most just way to resolve disputes. The NIC will be available from the cedural vacuum that has prevented the dis- But in other cases, such as commercial suits, RFP. Please refer to www.ain.lsc.gov for qualification laws from protecting judicial where the practical importance of more pre- filing dates and submission require- integrity.” “[T]he absence of the traditional dictable results was high, the Athenians did ments. Please e-mail inquiries pertain- adjudicatory procedures in recusal law under- have rules of admissibility and relevance that ing to the LSC competitive grants mines the reputation of the judiciary.” The limited jury discretion. The Athenian legal process to [email protected]. author then “suggests reforms that would system struck a balance between following incorporate the traditional forms of adjudica- rules and doing justice that is altogether dif-

THE NORTH CAROLINA STATE BAR JOURNAL 37 Candler, NC Ryan Michael Watson Williamsburg, VA Jennifer York Wilson Waynesville, NC Stephen Brian Walker Tallahassee, FL William J. Wickward Greensboro, NC Patrick James Yingling Greensboro, NC Lena Watts-Robinson Durham, NC Jonathan James Wilson Charlotte, NC Adam Paul Wallace Gastonia, NC Jeffrey Bruce Widdison Columbia, SC David Inchol Yoon Durham, NC Myra Kathryn Price Weare Durham, NC Marcus Minter Wilson Durham, NC Jaime Marie Wallace Raleigh, NC Gordon Jules Wikle Chapel Hill, NC Jae Hong Yoon Lansing, MI Joel Ray Weaver Durham, NC Megan Jane Wilson St. Louis, MO Jason Thomas Waller Palm Harbor, FL Alton R. Williams Knoxville, TN Stephen Michael Yoost Chapel Hill, NC Monica Eileen Webb Raleigh, NC Cami Marie Winarchick Columbus, OH Wesley Brian Waller Durham, NC Andrea Lee Davis Williams Winston-Salem, NC Paula Janelle Yost South Miami, FL Robert Michael Weddington Forest City, NC William Chad Winebarger Charlotte, NC Reyna Simone Walters Grundy, VA April D. Williams Knoxville, TN Aaron D. Young Washington, DC Clare Marie Bobbitt Weddle Raleigh, NC Nickole C. Winnett Carrboro, NC Danielle M. Walther Durham, NC Barry Lamont Williams Durham, NC Allison J. Young Winston-Salem, NC David Charles Weiss Raleigh, NC Anna Tycin Wood Chapel Hill, NC Candace Tanelle Walton Carrboro, NC Heather J. Williams Durham, NC Cheryl Young Charlotte, NC Aaron Bader Wellman Winston-Salem, NC Seth Matthew Woodall Emerald Isle, NC Damian John Ward Carrboro, NC Jeremy Christopher Williams Eden, NC Robert Nelson Young Buies Creek, NC Jennifer Elizabeth Wells Wilmington, NC Christopher Jason Woodyard Fuquay-Varina, NC Danielle Marie Ward Raleigh, NC Jillian Elise Williams Matthews, NC Sarah Grace Zambon Holly Springs, NC Brian Richard Weyhrich Durham, NC Tommie Renae Wright-Kearney Chapel Hill, NC Latia Linda Ward Carrboro, NC LaDonna M. Williams Durham, NC Theresa Marie Zamecnik High Point, NC Anna Elisabeth Wheeler Winston-Salem, NC Chad Erik Wunsch Mantua, OH Sara Batten Warf Lillington, NC Lutrell Trumane Williams Chapel Hill, NC Peter D. Zellmer Apex, NC Cybil Janine White Durham, NC Chandra E. Wymer Winston-Salem, NC Danielle E. Wasserman Chapel Hill, NC Syrena Nicolle Williams Carle Place, NY Jeffrey Dean Zentner Chapel Hill, NC James Arthur White Durham, NC Tiffany Anise Yancey Nashville, TN Kehinde Abena Watford Huntersville, NC Renee M. Williamson Durham, NC Amanda S. Zimmer Durham, NC W. Bryan White Atkinson, NC Tracy Y. Yanger Winston-Salem, NC Shan-Tika Ty-East Watkins Taylorsville, NC Leila Williford Charlotte, NC Emily D. Zimmer Durham, NC William Durham White Ferndale, MI Scott Manning Yarbrough Cambridge, MA Bradley D. Watson Chapel Hill, NC Lindsay Elizabeth Willis Charlotte, NC Kimberly Easter Zirkle Fairborn, OH Joshua D. Whitlock Bethlehem, GA Patrick Steven Yates Salisbury, NC

The Many Hats (cont.) exemplary citizens; must be done alone, without rancor, Are expected to serve on boards and com- vengeance, prejudice, or fear; without bias, societal pressures, or selfish concern. mittees; sympathy, or fear of public clamor. These are not easy to accomplish—but Share their knowledge and experience To find the best person to perform the job they are only a part of the job. with others to develop meaningful proof district court judge, who is better able to grams and policies in areas tangential to consider all of these various parts of the job Within Our Constitutional System of the courts; and person? Is it some appointing authority Government Inspire obedience and respect for the law; or the general voter at the polls? District court judges must: Improvise, theorize, and legitimize the To decide whether a particular district Decide when the police powers of the administration of the criminal justice, court judge should retain his office, who is state have overflowed their bounds; juvenile justice, and civil justice systems; better able to consider all of these various Decide what the legislature meant when Learn the law, teach the law, understand parts of the job and the person? Is it some they inartfully drafted a new law; the law, and apply the law; independent agency report on performance Decide what the appellate courts really All the while and characteristics in a voter guide, or a com- meant when they said what they said; Maintaining their families, being spouses, petitor’s letters to the editor, and editorials Decide what our constitutional rights parents, and children, and advertisements in the newspapers? mean in the day-to-day world in which Enjoying recreational pursuits, To attract the best person to the job of dis- we live. Maintaining health, and trict court judge, do we want the job sought (Nearly as many fundamental constitu- Nurturing relationships with family, by young lawyers to improve their visibility tional rights come into consideration in a friends, and God. or standard of living, or by experienced one-hour DWI trial as do in a two-week These are not easy matters—but they are lawyers who relish the challenge? Do we murder trial. The district court judge must only a part of the job. count on the apparent prestige of the posi- decide these issues in minutes, alone, often All of these things are part of the job of tion, or should we pay a reasonable salary? without briefs, AND often must do so sever- being a district court judge. A judge must be These are issues in which the Bar has a al times a day, for several days a week.) able to do all of these jobs and be willing to vital interest. Both as individual voters and as These are not easy decisions to make— shift between them at any time. AND they a body, lawyers should make their feelings but they are only a part of the job. must be done with patience, courtesy, legiti- known to their legislators. If not lawyers, who mate analysis, understanding, intuitiveness, will? Within Our Society empathy, application of life’s experience, District court judges: common sense, compassion, flexibility, deci- Joseph Turner is the chief district court judge Are looked to as leaders, as experts, as siveness, and, sometimes, courage. They for the 18th Judicial District.

THE NORTH CAROLINA STATE BAR JOURNAL 65