The Bulletin

THE BULLETIN

NUMBER 49, WINTER 2005

BRYAN A. STEVENSON JUDGE ROBERT R. MERHIGE, JR. COURAGEOUS ADVOCACY AWARD WINNER GATES LITIGATION AWARD WINNER

COLLEGE HONORS LEADERS IN CIVIL RIGHTS Marking 50th Anniversary of Brown

Coverage Begins on Page 5 Page 2 THE BULLETIN

STAN MUSIAL AND FANS L-R FRANK JONES, ANDY COATS, STAN MUSIAL, FRANK GUNDLACH, JIMMY MORRIS, GENE LAFITTE, MIKE O’KEEFE, DAVID BECK AT LUNCH IN ST. LOUIS AT THE ANNUAL MEETING. IN THIS IssueIssue

From the Editorial Board, 3 Notable Quotes from St. Louis College Elects New Leaders, 38 Meeting, 13 Letters to the Editorial Board, 4 The 2004 Anglo-American Legal President’s Report: Judicial Exchange, 39 2004 Annual Meeting Independence, 15 Commemorates Brown v. Awards, Honors, and Elections, 41 Board of Education, 5 In Memoriam, 17 Opinion: Say No To Mandatory Celebration of Brown v. Honorary Fellow in Unusual Sanctions, 43 Board of Education, 7 Lawsuit, 28 Adjunct State Committee Assumes Gates Litigation Award to Retired Bon Mots From St. Louis Expanded Role, 44 United States Judge Robert R. Meeting, 29 Merhige, Jr., 9 College Honors Retiring Foundation Reports 22 Percent Chairs, 45 College Establishes Heritage Increase, 36 Committee, 10 One Hundred Eleven Fellows Fellows In Print, 36 Inducted At St. Louis Meeting, 46 Student Winners Honored in St. Louis, 10 “Closing Argument”: A Son’s Fellows to the Bench, 47 Tribute, 37 Bryan A. Stevenson Receives Courageous Advocacy Award, 11 Average Nominee Age, Level of Experience Remains Steady, 38 Regional Roundup, 12

A CURRENT CALENDAR OF COLLEGE EVENTS IS POSTED ON THE COLLEGE WEBSITE AT WWW.ACTL.COM, AS ARE A CURRENT COMPENDIUM OF THE ONGOING PROJECTS OF THE COLLEGE’S NATIONAL COMMITTEES. THE BULLETIN Page 3

American College of Trial Lawyers THE BULLETIN From The Editorial Board

CHANCELLOR-FOUNDER Hon. Emil Gumpert (1895—1982) uring the past year the College created Dan ad hoc committee on the Bulletin. OFFICERS Growing out of that has been the creation JAMES W. MORRIS, III, President by the Regents at their 2004 Fall meeting of MICHAEL A. COOPER, President-Elect MIKEL L. STOUT, Secretary a separate Bulletin Committee. That com- DAVID J. BECK, Treasurer mittee will be responsible for the publica- DAVID W. SCOTT, Q.C., Immediate Past President tion of the Bulletin, including its format, BOARD OF REGENTS editorial content and production. It is also charged with ensuring that the Bulletin, DAVID J. BECK JAMES W. MORRIS, III Houston, Texas Richmond, Virginia the principal organ of communication be- ALBERT D. BRAULT EDWARD W. MULLINS, JR. tween the College and the Fellows, contin- Rockville, Maryland Columbia, South Carolina ues suitably and effectively to carry out RAYMOND L. BROWN BRIAN O’NEILL Pascagoula, Mississippi Minneapolis, Minnesota that role. JOHN L. COOPER DAVID W. SCOTT, Q.C. San Francisco, California Ottawa, Quebec, Canada That committee will comprise the Editorial MICHAEL A. COOPER MIKEL L. STOUT Board of the Bulletin. Its members are New York, New York Wichita, Kansas listed in the 2005 Roster, the Blue Book, BRIAN P. CROSBY DENNIS R. SUPLEE and on the Bulletin’s masthead. The Edito- Buffalo, New York Philadelphia, Pennsylvania rial Board welcomes your thoughts and JOHN J. (JACK) DALTON ROBERT W. TARUN Atlanta, Georgia Chicago, Illinois comments on how we can make the publica- CHARLES H. DICK, JR. THOMAS A. TONGUE tion better serve the College. San Diego, California Portland, Oregon GREGORY P. JOSEPH JOHN H. TUCKER The Editor, Marion Ellis, a former newspa- New York, New York Tulsa, Oklahoma perman who in another life helped his JOAN A. LUKEY SHARON M. WOODS Boston, Massachusetts Detroit, Michigan employer win a Pulitzer Prize for journal- ism, was one of the authors of the fifty-year history of the College. He has the principal THE BULLETIN COMMITTEE day-to-day responsibility for the Bulletin.

E. OSBORNE AYSCUE, JR., Charlotte, North Carolina, Chair Information for communicating with him SUSAN S. BREWER, Morgantown, West Virginia also appears on the Bulletin’s masthead. JAMES J. BROSNAHAN, San Fransisco, California ANDREW M. COATS, Norman, Oklahoma J. ROBERT ELSTER, Winston-Salem, North Carolina This issue covers in depth the proceedings HON. GARR M. KING, Portland, Oregon at the 2004 Annual Meeting in St. Louis, a WARREN B. LIGHTFOOT, Birmingham, Alabama CONRAD M. SHUMADINE, Norfolk, Virginia major portion of which was devoted to a JACOB M. STEIN, Washington, District of Columbia commemoration of the fiftieth anniversary MICHAEL A. WILLIAMS, Denver, Colorado G. GARY WILSON, Winston-Salem, North Carolina of the United States Supreme Court’s GREGORY P. JOSEPH., New York, New York, Regent Liaison decision in Brown v. Board of Education. Some of the program was celebratory; some MARION A. ELLIS, Editor of it was provocative. We hope that our Telephone: 704-366-6599 E-Mail: [email protected] extensive coverage allows those of you who could not attend to share in some measure in the outstanding program that President- American College of Trial Lawyers DENNIS J. MAGGI Elect Jimmy Morris put together and helps Executive Director 19900 MacArthur Boulevard, Suite 610 to refresh the recollection of those of you Irvine, California 92612 who were there. Telephone: (949) 752-1801 Facsimile: (949) 752-1674 Website: www.actl.com E-Mail: [email protected] (Continued on page 4) COPYRIGHT © 2005 Page 4 THE BULLETIN

FROM THE EDITORIAL BOARD deaths of three former Regents of the Col- (Continued from page 3) lege and a former president of the ABA. When a Fellow in your area dies and you send a copy of his obituary to the College As you may have noted, we have progres- office, please also send us a copy, so that we sively expanded the variety of features that can have an editorial opportunity to con- are a regular part of the Bulletin. We have sider his or her place in the history of the also begun to experiment with new fea- College and the profession. tures. For instance, articles submitted by Fellows expressing their opinions on impor- Though the College’s website and emails to tant issues of the day, a recent innovation, the entire Fellowship may someday become have generated enough letters to the editor the principal avenue of communication to lead us to think that this is a useful between the College and its members, the addition. Bulletin will continue to serve that purpose for the forseeable future. It belongs to you. A hundred or so Fellows pass from among We hope that you will read it and that you us each year. We cannot print an obituary will feel free to tell us how we can make it of every Fellow who dies. In the past, we better serve you and the College. have published only tributes to Past Presi- dents upon their deaths. In this issue, you will, however, see brief accounts of the Letters To The Editorial Board

SENTENCING GUIDELINES: A FAILED EXPERI- more comment than we can print. Excerpts MENT from some of your letters follow.) As a federal District Judge, I could not I read with more than a passing interest agree more with the positions taken and your recent article in the Bulletin about views expressed in your monograph. “The Vanishing Trial”. What a thoughtful Rarely, if ever, has any explanation of analysis of a disturbing problem! You federal sentencing practices been as mention early on in your article that the thoughtful and concise, and so completely place of jury trials has been usurped in accurate. seven different ways. I would suggest the addition of an eighth. Sincere thanks for the thought that went into its preparation and publication. Please I would suggest the eighth factor that “No let those responsible for this publication One Wants To Talk About” is that settle- know that it is deeply appreciated. ments have been arrived at by the lack of backbone of the modern day “litigator.” James G. Carr, U.S. District Judge, You talk early on in your article about the N.D. Ohio, Toledo, Ohio “litigator who bills the file, takes every deposition conceivable, addresses all issues, briefs every point, and never takes THE PROBLEM NO ONE WANTS TO TALK the case to the courthouse.” I believe that ABOUT the genetic absence of the backbone of the (This op-ed opinion article in the Summer 2004 issue on the vanishing trial generated (Continued on page 27) THE BULLETIN Page 5 2004 ANNUAL MEETING COMMEMORATES BROWN V. BOARD OF EDUCATION

ighlighting the 54th Annual Meeting that advocacy, as a result of that com- Hof the College held in St. Louis Octo- mitment, the public schools were opened ber 21-23, was a celebration of the 50th up. But for that commitment, but for anniversary of the United States Supreme that advocacy, I would not be standing Court’s decision in Brown v. Board of here talking to you this morning.” Education. The Samuel E. Gates Litigation Award Special guests recognized at the opening was given to retired Eastern District of session ,with President David W. Scott Virginia United States Judge Robert R. presiding, were two past winners of the Merhige, Jr. of Richmond, Virginia. College’s Courageous Advocacy Award. An account of Merhige’s award appears The first was 97-year-old Oliver Hill of elsewhere in this issue. Richmond, Virginia, who was one of the original counsel for the plaintiffs in the In his acceptance remarks, Judge Merhige l951 Virginia case that became a part of reflected on the more than forty school Brown at the Supreme Court level. desegregation cases over which he presided. During that time, his seven year The second was Julius L. Chambers of old son had to be escorted to school by Charlotte, North Carolina, who repre- United States Marshalls, his guesthouse sented plaintiffs in many of the local was burned, his dog shot, the local press suits, including Swann v. Board of Educa- called for his impeachment and he was tion, brought to force the implementation regularly subjected to death threats. of Brown in the 1960s and 1970s. When interviewed by CBS News at the The College gave its thirteenth Coura- time, Merhige said, “I want you to under- geous Advocacy Award to Bryan A. stand, we are not afraid. I only hope the Stevenson, an African-American lawyer callers would understand, whoever they who founded and directs the Equal Justice are, that their calls are not going to Initiative of Alabama, whose principal change one single thing, whether it is me clients are indigent capital defendants, or another judge.” principally persons of color. President Robert J. Grey, Jr. of Rich- An account of this award to Stevenson mond, Virginia, the second African-Ameri- appears elsewhere in this issue. can president of the American Bar Asso- In accepting the award, Stevenson paid ciation, opened his remarks saying, “You tribute to Oliver Hill, saying, “Oliver have honored two members of my family, Hill is responsible for my being here. I Judge Merhige, [my] law partner, and am a product of Brown. I started my Oliver Hill, who [lived] six blocks away education when black children could not [from where I grew up].” He credits Hill, go to the public schools . . . and the who escorted him to the podium when he colored school in my community was this was installed as the ABA president last small shack that didn’t go past the August, with inspiring him to become a eighth grade. Oliver Hill and lawyers lawyer. from the NAACP came into that community and started talking about . . . the demands of Brown . . . . As a result of (Continued on page 6) Page 6 THE BULLETIN

2004 ANNUAL MEETING guests took advantage of the occasion to (Continued from page 5) ride to the top of the Arch. Indeed, the Friday night reception and In introducing constitutional law scholar dinner dance celebrated the 1904 World’s Dean Gene R. Nichol of the University of Fair. North Carolina School of Law, Past Presi- To add to the excitement, during the dent Ozzie Ayscue remarked, “Each of us meeting, the St. Louis Cardinals won the has his or her perspective on Brown v. National League pennant in a stadium a Board of Education, depending in part on few blocks from the headquarters hotel. when we were born. Some of us know it as More than one speaker celebrated the a piece of legal history. Some of us know occasion by wearing a Cardinal baseball it from having lived through its imple- cap to the dais, and Justice Sandra Day mentation. At least one person in this hall O’Connor wore a cardinal red dress while today was there at its birth. delivering her address at the Saturday “Our next speaker was three years old in morning program. A group of Fellows had 1954. His is the perspective of one who the pleasure of dining with former Cardi- grew up with that landmark decision. It is nal great Stan Musial. fitting that in the year of the fiftieth In addition to the program highlights anniversary of Brown v Board of Educa- noted above, the participants were treated tion, we hear from the former director of to an illuminating account of the Lewis the Institute of Bill of Rights Law at the and Clark Expedition and its current College of William and Mary, a constitu- relevance by historian and philosopher tional law scholar and teacher and a Dr. Robert R. Archibald, President of the student of the civil rights movement, who Missouri Historical Society. has entitled his remarks ‘Celebration of Brown v Board of Education.’” John Grisham gave a fascinating account of his journey from a small-town Missis- Dean Nichols’ remarks are reprinted sippi trial lawyer to a best-selling author. elsewhere in this issue. His exchange of humorous repartee with The legacy of Brown was again invoked by his introducer, Will Denton, FACTL, of former Delaware Chief Justice, now Col- Biloxi, Mississippi was one of the high- lege State Chair, E. Norman Veasey, who, lights of the meeting. (Tragically, Denton in introducing another speaker, pointed has since died of complications following with pride to the fact that the opinion of heart transplant surgery.) Judge Collins J. Seitz requiring desegre- The winners of the various moot court and gation of the public schools in Delaware trial competitions in the United States was the only lower court opinion affirmed and Canada were recognized for their by the Supreme Court in Brown. achievements. The meeting, planned by incoming presi- Dean Joel Seligman of the Washington dent James W. Morris, III, was held in a University in St. Louis School of Law, a city, once the gateway to the West, cel- nationally recognized authority on corpo- ebrating both the 200th anniversary of rate governance, delivered an incisive the departure of the Lewis and Clark paper on the “modest revolution” taking Expedition and the 100th anniversary of place in that arena in the wake of the the St. Louis World’s Fair. The opening corporate scandals that have recently reception was in the Jefferson National Expansion Memorial in the base of the Gateway Arch. Many Fellows and their (Continued on page 12) THE BULLETIN Page 7 CELEBRATION OF BROWN V. BOARD OF EDUCATION

(The following address was delivered at the Judge Jus- 2004 Annual Meeting in St. Louis by Gene tice, and I R. Nichol, Dean and Burton Craige Profes- was able to sor of Law at the University of North Caro- tell him that lina School of Law, on the occasion of the I became a

fiftieth anniversary of the decision of the lawyer ICHOL United States Supreme Court in Brown v. because my Board of Education. Reaction to the chal- father hated R. N lenging rhetorical questions the speaker him so raised toward the end of his presentation much, and I ENE ranged from “political” to “prophetic.” thanked him G Whatever perspective one may embrace, they for it. reflect current issues that call for thoughtful For us, for civil discussion. ) my generation of lawyers, we thought that Brown was the promise of America and it was both a am of that generation who decided to celebration and a challenge, an inspiration become lawyers because of Brown. There I and an indictment, a dream and a rebuke. was a good deal of idealism in the air then, And what was true in 1954 can still be true when I was in college, in the late Sixties fifty years later. and early Seventies. I think a lot of that was due to the Kennedys and to Dr. King. There is in Brown much to celebrate, But a lot of us who became lawyers did that almost more than can be stated, the because of Brown. We wanted to be unfathomable courage of the plaintiffs Thurgood Marshall, Robert Carter, or Jack who stood up. I think particularly of Greenberg or Oliver Hill, Earl Warren or Reverend DeLaine and the Clarendon William O. Douglas. County, South Carolina plaintiffs, some of whom we had the honor to meet a few One way of making that point concrete: I months ago, heroes beyond description, grew up in rural Texas. The civil rights beyond comprehension. And I think of revolution was slow coming to my family’s the brilliance of the NAACP’s strategists, house. And in Texas we were fortunate to the power and the character of their have one of those great courageous southern claims. Robert Carter, arguing for recog- federal judges, like Judge McMillan in nition that blacks are first-class fee Charlotte or Judge Merhige in Richmond, simple citizens. Thurgood Marshall, Judge Johnson or Judge Wright. And ours in stating powerfully that these infant Texas, as you know, was the aptly named appellants are asserting the most impor- William Wayne Justice. That meant about tant claims that can be set forth by chil- once a week at my family’s breakfast table dren: the claim to their full measure of a my father would read the paper, and Judge chance to learn and to grow, and the Justice would have taken over the schools or inseparably connected, but even more the prisons or the legislature, and my father important claim to be treated as entire would growl, “That g— d— Judge Justice.” citizens. Being a teenager, I thought that anybody who could consistently make my old man that mad must really have something going for him. Years later I was on a program with (Continued on page 8) Page 8 THE BULLETIN

CELEBRATION OF BROWN V. BOARD American government sees itself as charged (Continued from page 7) with enforcing our foundational promises of liberty and equality. And if we have that, we have it because it started with Brown. I think something we haven’t focused as There for the first time, the Supreme Court much on, and maybe in the broad sweep of learned that its power could be exercised in things it is less important, but I’m not dramatic ways to bolster and sustain de- certain that’s so–I think Brown also worked mocracy, rather than to thwart it. The to save the United States Supreme Court as Court learned that it could use constitu- an institution, to secure for the Court a vital tional command to reach for our aspira- and necessary role in American government. tions, to tap our better angels, rather than The Supreme Court has had a long history, to merely drag the country’s feet against and it has not always been glorious. It the tug of progress. It could provide what declared the power of judicial review over Alexander Bickel called the sober second acts of Congress in the early Nineteenth thought, asking in fact whether we were as Century, but it didn’t really use it until the a society living up to the promises we have disastrous decision in Dred Scott, a ruling made to each other and to ourselves. And that required a Civil War for reversal. In finally, Brown taught that an independent, Plessy v. Ferguson in the late Nineteenth unshackled, unelected judiciary could be Century, it wrote the Equal Protection worthy after all. It could help us take Clause out of the United States Constitu- strides that apparently we wouldn’t make tion. It battled with the Roosevelt adminis- otherwise. It could supplement the elected tration over unrestrained capitalism, and it branches of government to help make the lost. It battled with the Congress for decades promises of democracy real. It is true, in over the difference between what is national short, that the Justices’ efforts in Brown and what is local, and it lost. When we did much for the Civil Rights movement. interned 120,000 Japanese Americans dur- But the Civil Rights movement also did ing World War II, when the McCarthy move- much for the Court, and the Justices em- ment gutted freedom of expression a few brace of equality in Brown eventually made years later, the Court didn’t meaningfully the United States Supreme Court an insti- intervene. It continued to lie face down on tution worthy of its high calling. the canvas, immobile and inadequate, not up to the task. I want to focus in the time I have left on another feature of Brown, my own favorite So, until Brown, I think it’s fair to say that chord of the decision, because I am con- the major lessons of the Court had been vinced that there is a central component of lessons in failure. And as of 1950 many Chief Justice Warren’s opinion that still constitutional lawyers thought that the best has the capacity to stir American constitu- thing you could hope for from the United tional law with all of its flaws and all of its States Supreme Court was that it would challenges. If you remember, Chief Justice shut up and not get in the way of progress Warren admitted in Brown that the Court for other branches of government. had been asked to struggle with the historic Now, given Brown’s legacy and its funda- meaning and the legislative intention of the mental success in saying that the Constitu- majestic phrase, Equal Protection of the tion is serious business and that it belongs Laws. And after arguments, rearguments to us all, the Supreme Court potentially and debates and white papers and supple- plays a very different role in American life. ments and amicus briefs, Warren effectively We know of course that that can be risky threw up his hands, saying he found the too, but I am convinced that we are better served if one of the principal institutions of (Continued on page 34) THE BULLETIN Page 9 GATES LITIGATION AWARD TO RETIRED UNITED STATES JUDGE ROBERT R. MERHIGE, JR.

etired United States docket,” and by your .

RDis-trict Judge Robert R. R unselfish acceptance

Merhige, Jr. became the , J during your long career nineteenth winner of the of countless assignments Samuel E. Gates Litigation to federal courts

Award at the 2004 Annual ERHIGE throughout the United Meeting of the College in St. States to address con-

Louis. Created in 1980, the R. M gested dockets, you have award honors a lawyer or made immense contribu- judge who has made a signifi- tions to the development OBERT

cant contribution to the R and improvement of the improvement of the litigation litigation process. By process. your life, your courage and your deeds, you In honoring Judge Merhige, have honored our profession. committee chair Paul T. Fortino of Port- land, Oregon, noted that the award is Over his career on the bench, by his own special in that it need not be given on an count, Judge Merhige presided over court in annual basis, but is, instead, reserved for more that one hundred different court- those individuals who have achieved some- houses throughout the federal system. He thing truly significant. regularly made himself available as a roving judge to address crowded dockets in Judge Merhige’s career spans six decades, districts other than his own. He presided first as a trial and appellate lawyer for over litigation arising out of the Kepone twenty-two years, then as a Federal District pollution of the James River, the judge for thirty-years and now as of counsel Westinghouse Uranium case and the A.H. to Hunton & Williams in its Richmond office. Robins Dalkon Shield class action. The text of the award to Judge He also presided over more that forty school Merhige read, in part, as follows: desegregation cases in which he was re- [As] a courageous advocate, a fear- versed only once, that ultimately by a four- less judge, a teacher, a mentor and a four decision in the United States Supreme true professional, you have distin- Court. During those years, he was subjected guished yourself. As a moving force to vicious threats. The local press called for behind the founding of the American his impeachment. His home was picketed, Inns of Court in Richmond, as the his dog was shot and his guest house was author of a standard text on Virginia burned. For years, he and his family lived jury instructions and numerous with round-the-clock protection from articles on trial tactics, as a teacher United States Marshalls. At one point, the of advocacy in the universities of the problem became so severe that he had to State of Virginia, and as a judicial send his family away for their own protec- crusader against delay in litigation, tion. by your contribution to the culture, rules and practices of the United States District Court of the Eastern (Continued on page 10) District of Virginia, the “rocket Page 10 THE BULLETIN

GATES AWARD WINNER the vital role of the courts in our society, nor (Continued from page 9) did he ever let the threat of violence cause him to be swayed from doing his duty.” As Fortino noted in introducing the award, In accepting the award, the eighty-five- “Throughout this ordeal, Judge Merhige year-old judge closed by reminding his never flinched or wavered. Rather, he re- audience, “We need each other; don’t forget mained dignified and professional in the face that.” of hateful criticism. He never lost sight of

COLLEGE ESTABLISHES HERITAGE COMMITTEE

ormer Regent James P. Schaller of In addition, the committee is inventorying FWashington, District of Columbia, has material at College headquarters and will been named chair of the new Ad Hoc Com- consult with professional archivists to make mittee on College Heritage. a plan for the future. The committee has supervised interviews Schaller asks anyone who has material that of past presidents Leon Silverman and Tom might be relevant to contact him or a mem- Deacy by author and College Fellow John ber of his committee. Martel and plans future sessions with more past presidents or their widows.

STUDENT WINNERS HONORED IN ST. LOUIS

inners of the four student trial and Shawn Macdonald of the University of Wcompetitions in the United States and Western Ontario in London, Ontario was Canada sponsored by the College were judged the Best Overall Oralist. honored at the St. Louis meeting. The National Moot Court Competition in It was the thirty-fifth year of the National New York City was won by a team from Trial Competition, with 125 teams partici- South Texas College of Law in Houston pating. The Kraft W. Eidman Award was made up of Marit M. Babin, Kenneth O. won by a team from the University of Hous- Corley and J. Daniel Johnson. Corley re- ton Law Center consisting of Michaelle ceived the Fulton W. Haight Award as the Benavides, Edward Verbarie and Julie Best Oral Advocate. Dawn Gray. Rena Upshaw-Frazier of the The Gale Cup Moot Court Competition in Stetson University College of Law in St. Canada was won by the four-member team Petersburg, Florida won the George A. of Gordon Buck, Aidan Cameron, Cameron Speigelberg Award as the Best Oral Advo- Elder and Adam Perry of the University of cate in the National Trial Competition. Victoria in British Columbia. Daniel Bach Team members Anne-Marie Lacoste and of the University of Toronto in Ontario was Marie-Pier Michon of the University of recognized as the Best Oral Advocate. Montreal won the Sopinka Cup Competition THE BULLETIN Page 11 BRYAN A. STEVENSON RECEIVES COURAGEOUS ADVOCACY AWARD

ryan A. Stevenson, Meeting in New York City, Bthe founder and asserting, “I don’t accept that Executive Director of race bias in the administration the Equal Justice of criminal justice is inevitable, Initiative of Alabama, that it cannot be challenged,

and Professor of Clini- TEVENSON that it cannot be confronted. I cal Law at New York do not accept that all we can

University School of A. S with the hopeless and the de- Law, is the thirteenth spised and rejected is to put

winner of the College’s RYAN them in prisons forever or to Courageous Advocacy B execute them . . . .” Award. “Constantly dogged by lack of Created in 1964, the funds,” Ms. Hamilton’s presen- award is given, in the tation continued, “Brian has words of committee chair Trudie Ross worked day and night for twenty years . . . . Hamilton of Waterbury, Connecticut, “to [H]is organization is overwhelmed, and he trial lawyers who both understand and works under the constant threat of execu- appreciate the intense personal commit- tion of the innocent. He has eschewed ment, sacrifice and courage” required for personal comfort, living in spartan accom- advocacy of unpopular causes. modations and working eighty to ninety hours a week for a subsistence wage,” and As a gifted minority lawyer and a 1985 donating his earnings from teaching to this graduate of the Harvard Law School, Ms. cause. Hamilton noted, Stevenson could have “enjoyed the attendant rewards of power, “His courage, commitment and sacrifice prestige and financial security.” Instead, he have been extraordinary. His persistence in has devoted his life’s work to representing the face of daunting obstacles is an inspira- indigent capital defendants in a state tion to us all.” where there is no public defender system, In accepting the award, Stevenson said, “I where criminal defense lawyers are paid a cannot think of an award from any group pittance, and where “the death penalty that is more meaningful, that is more seemed to be reserved for the poor and empowering, that is more encouraging than people of color.” an award from you, because I know that Operating in a climate that was pervasively you represent people who understand the hostile and often threatening, where enthu- call of justice, the demands of the law, the siasm for the death penalty was overt and requirement to protect and to serve those where enforcing the death penalty was a who would be unprotected and unserved.” major vote-getter, his work, which often has Two previous winners of the Courageous taken him alone to courthouses where he Advocacy Award, Julius Chambers of Char- was an unwelcome stranger, has subjected lotte, North Carolina, and Oliver Hill of him to hostility both from the bench and Richmond, Virginia, were in the audience from members of his own profession. that witnessed the presentation to Stevenson’s work was already well known Stevenson. to the College. He spoke to the 2002 Annual Page 12 THE BULLETIN

2004 ANNUAL MEETING historical vignettes that recalled the (Continued from page 6) tension between the executive and the judiciary that have tested our balanced system of government. The College in- dominated the news. tends to collect and publish the Powell The College awarded an Honorary Fellow- Lectures for posterity. ship to the Honourable Louis LeBel of James W. Morris, III, of Richmond, Vir- Ottawa, Quebec, Canada, a Justice of the ginia, was installed as the College’s new Supreme Court of Canada. President at the closing banquet on Satur- ABA President Grey devoted his remarks day night, taking the gavel from outgoing to his organization’s present study of the President David W. Scott of Ottawa. status of the jury system in the United Other new officers and Regents were States, noting that the College has desig- elected in the business session on Satur- nated Treasurer David J. Beck of Hous- day. ton, Texas as its liaison to the project. On the final evening of the meeting, Past Virginia Supreme Court Justice Donald President Earl J. Silbert administered the W. Lemons of Richmond, Virginia spoke induction to 111 new Fellows. Sally on the legacy of Jamestown, describing Quillian Yates, Assistant United States the creation of a local government by the Attorney from Atlanta, Georgia responded colonists themselves as the genesis of for the inductees. democratic government under the rule of Excerpts from the remarks of various law in the New World. program speakers are collected under the Justice Sandra Day O’Connor delivered heading Notable Quotes. the latest in a series of lectures in honor of the late Justice Lewis F. Powell, Jr. After a few personal recollections of the late Justice, she addressed a series of

REGIONAL ROUNDUP

resident Jimmy Morris and his wife The NEW JERSEY FELLOWS Annual Dinner on PJane attended the two annual dinners December 3 in Deal included Supreme of PENNSYLVANIA FELLOWS, Eastern on Court Justice James R. Zazzali and his wife November 17 and Western on December 1 Eileen as guests. in Pittsburgh. The Eastern dinner in Phila- delphia included five judicial guests— incoming Chief Judge of the Eastern Dis- President David Scott and his wife Alison trict of Pennsylvania Harvey Bartle, III, along with Regent Mikel Stout and his wife Magistrate Judge Thomas J. Rueter, Clerk Lee Ann attended the annual meeting of of Court Michael E. Kunz, Delaware Vice the OKLAHOMA FELLOWS in San Pancho, Chandler Leo Strine and Administrative Mexico, a beachside community near Puerto Law Judge James J. Fitzgerald, III, of the Vallarta. Philadelphia Court of Common Pleas. THE BULLETIN Page 13 NOTABLE QUOTES FROM ST. LOUIS MEETING

LESSONS FROM THE LEWIS AND CLARK EXPEDI- tion how to survive its first winter] and his TION extraordinary gestures of generosity and friendship to strangers, not suspicion, not Lewis and Clark . . .were the vanguard of mistrust, but friendship and commitment American expansion into that huge acquisi- and help. I am reminded, of course, by York tion made by President Jefferson that more [Clark’s slave, who wrongly assumed that than doubled the size of the country, the at the end of the expedition he would win Louisiana Purchase. . . . [The expedition] his freedom] of the fact that when our was the idea of Thomas Jefferson . . . who perspectives differ . . . it does not mean was the consummate westerner, who never necessarily that somebody is lying. made it over the Blue Ridge, but who had this expansive dream of an America in The story makes me think about the bal- which all people would possess land. . . . ance between science and sacredness, and I Jefferson was also a person intensely inter- wonder how we might behave differently if ested in the world around him. . . .[H]e was we really did in some way regard this a creature of . . . the Enlightenment, of planet, this earth, our communities, our which we are the inheritors. This was the neighborhoods as sacred places. And that idea that the world was explainable; that may in fact be the secret of a better world, a through science and through exploration, world capable of sustaining lives of good explanation, measurement, organization, quality for our children and children’s the world and everything in it could be children. . . . And finally is it possible that understood and rationally comprehended by we, along with Lewis and Clark, might go human beings. Lewis and Clark were through a similar metamorphosis that Jefferson’s legs, eyes, arms, ears and, for a allows us to see the world a bit different time, his mind. . . . [O]n Jefferson’s behalf, and teaches us how to read an Indian map? they were to collect the information that Dr. Robert R. Archibald, President and would broaden human comprehension . . . of CEO, Missouri Historical Society, St. Louis, this world and of the land he had purchased Missouri for the United States. I want to leave you with my sense of how and why it’s worth thinking about a 200 A JUDGE LOOKS BACK ON THE BROWN ERA year old story. . . . Every generation, every society and all human beings are attracted [T]here’s a power much greater than any by adventure, by risk-taking and by going court that controls us. . . . I took an oath, where no human has ever gone before. So, and that oath has been in my mind every in a sense, Lewis and Clark remind us of minute since. . . . God has been good to me, some of the commonalities that all human because nobody has had it better . . . the beings share. . . . The second is Sacagawea life I’ve had and the work. . . . [W]e’re on a [the young Native American girl who be- new path now; and we ought to be believing came a cultural intermediary between the in each other. . . . When they burned the expedition and her people]. . . . I cannot house [his guesthouse during the height of imagine that in this global world we are the school desegregation struggle], that was any less in need of Sacagawea’s, who can a day that was terrible for me. . . . I rebuilt make mutually unintelligible cultures it; I thought it necessary to do that. I went understand one another. And I am reminded of Shahaka [who taught the expedi- (Continued on page 14) Page 14 THE BULLETIN

NOTABLE QUOTES eventually made the United States Su- (Continued from page 13) preme Court an institution worthy of its high calling. . . .

broke, but you can’t let the kooks think The greatest lessons of Brown . . . are that they are going to chase any Federal Judge, Brown’s questions must be still our ques- not with Article III behind you. . . . You tions, and that Brown’s challenges, which know, we never did know who did that, but go to the heart of the promise of America, I’m not very angry at them now, because must remain our challenges as well, . . . some good has come of it. because the virtue of our nation is still in the making. . . . [W]e cannot escape respon- Retired United States District Judge sibility for the society we create. . . . [T]he Robert R. Merhige, Jr., Eastern District of greatest American value is that we are all Virginia, accepting the Samuel E. Gates in this together. Litigation Award Dean and Burton Craige Professor of Law Gene R. Nichol, University of North BROWN’S RELEVANCE TODAY Carolina at Chapel Hill, commemorating the Fiftieth Anniversary of the Supreme Brown is, after all, the greatest decision ever Court’s decision in Brown v. Board of Edu- handed down by an American court, saying, cation I always thought, some very simple, straightforward things, saying that the Constitution means something, that it’s to REFLECTIONS ON THE COLLEGE’S STUDENT be seriously enforced, that it’s not a fraud, COMPETITIONS that it won’t be relegated to rank hypocrisy, that it belongs to us all. Simple things, I learned more from that competition [the majestic things, controverted things, words National Trial Competition] about being a that changed America when it needed chang- trial lawyer than I ever would in the class- ing. . . . For us, for my generation of lawyers, room: how important it is to be confident in we thought that Brown was the promise of the courtroom, how to remain composed America, and it was both a celebration and a when the judge rules against you or when challenge, an inspiration and an indictment, you don’t understand the judge’s ruling, a dream and a rebuke. . . . how important it is to speak effectively to the jury and to advocate for your client. It I think Brown also worked to save the has been an invaluable experience, and . . . United States Supreme Court as an insti- it was as [much] fun as it was educational. tution, to secure for the Court a vital and necessary role in American government. . . Rena Upshaw-Frazier, Stetson Univer- . I am convinced that we are better served sity College of Law, St. Petersburg, Florida, if one of the principal institutions of accepting the George A. Spiegelberg Award American government sees itself as as the Best Oral Advocate in the National charged with enforcing our foundational Trial Competition promises of liberty and equality. . . . Brown taught that an independent, unshackled, unelected judiciary could be By sponsoring this type of competition, the worthy after all . . . could help us make College honors students across Canada who strides that apparently we wouldn’t make apply what we have only read in books. . . . otherwise. It could supplement the elected Most importantly, . . . I thank the American branches of government to help make the promises of democracy real . . . . [T]he (Continued on page 18) Justices embrace of equality in Brown THE BULLETIN Page 15 President’s Report: Judicial Independence

fter serving as a member and chair of essential if Athe Virginia State Committee, as a the ACTL is member and Chair of the Admission to to be more , III Fellowship Committee, as a member of than an

other committees, as Regent for four years, honor and a ORRIS Treasurer for two years, President-elect for plaque on one year, and having attended 16 work- the wall. shops and one College retreat, I thought I W. M In addition had a grasp of what was going on in our

to these AMES

College. In the first months as President, I J collegial have learned otherwise. elements, the Perhaps because the College and its state, activities of province, general and ad hoc committees the 61 state and province committees, the have grown increasingly more active over 31 general committees, and 4 ad hoc or these 15 years, or because of recent events special committees are at an all time high, and the maturation of incipient initiatives, as reflected by the terse descriptions of the or because the responsibilities as President projects and other professional initiatives require a broader view, or because of all of found in the compendia on our website the above and more, I have been enlight- (www.actl.com). ened considerably, if not staggered, by the Nowadays, at a minimum, almost every volume of activity in all aspects of our state/province committee is engaged in College. support of the laudable pro bono effort of On the collegial side, a cornerstone of the Access to Justice Committee (Chris- Chancellor Gumpert’s vision, it is a rare tine Carron, Montreal, and Bill Crow, state/province committee that does not Portland, Co-Chairs) and in the annual have an annual meeting to enjoy the com- trial and appellate advocacy competitions pany of the Fellows and spouses, with an supported by the College, one each in invitation to the President or his surrogate Canada and in the U.S. annually, under to join in the fun and report on the state of the umbrella of the Canadian Competi- the College. By the time this is published, tions Committee (Tom Heintzman of Jane and I will have attended 15 State/ Toronto, Chair), the National Moot Court Province/College meetings since St. Louis. Competition Committee (Frank Jones of We can attest that the spirit of Fellowship Houston, Chair), and the National Trial is at a very high level in Canada and the Competition Committee (Judge Phil U.S. Garrison of Springfield, Missouri, Chair). A growing number of state/province There are now 11 regional or multi-state committees are engaged in the teaching meetings, allowing social interaction and of trial advocacy in one form or another educational acopportunities between two to public service lawyers in conjunction or more state/provinces. What with the with our Trial and Appellate Advocacy unavoidable expense of most national Committee (Richard Zielinski of Boston, meetings and the size limitations of some Chair). Again, a review of the list on the of our venues, these meetings are particu- website will enlighten you and, perhaps, larly important in maintaining the collegiality, the Fellowship, and the sense of a worthwhile connection to the College, so (Continued on page 16) Page 16 THE BULLETIN

PRESIDENT’S REPORT JUDICIAL DISCRETION AND THE FEDERAL (Continued from page 15) SENTENCING GUIDELINES Of particular concern to the College, its introduce you to an opportunity to serve, Fellows and several of our committees is but awe inspiring as the multiplicity and the relentless effort to deprive the judi- importance of these activities may be, ciary of its independence and discretion. they are not the central topic of my mes- The Judiciary Committee (Chair, Dudley sage today. Oldham of Houston), the Special Problems in the Administration of Justice Commit- The ad hoc committees are successfully tee (Chair, Joe Parker of Cincinnati) and pursuing a number of important and timely the Ad Hoc Judicial Relations Committee projects, including College heritage (Chair, have been addressing these issues in Jim Schaller of Washington, D.C.), rela- general, and the Federal Criminal Proce- tions with the judiciary (Chair, Phil Kessler dure Committee and the Task Force ap- of Detroit), and possible regional realign- pointed by then President Warren ment (Chair, Past President Ralph Lightfoot, chaired by Past President Earl Lancaster of Portland, Maine). Silbert, have been addressing the Federal The most recent is the “Outreach Commit- Sentencing Guidelines of 1984 (the “Guide- tee” under the leadership of Liz Mulvey of lines”), in particular. Boston, appointed in response to the clear As College Treasurer David Beck ably message from our two annual workshops points out in his article “Separation of (attended by all state and province and Powers: Is Our Judiciary Under a Seri- general committee chairs, the officers and ous Attack?”, For the Defense, Vol. 47, various past presidents) that, however No. 1, January, 2005, p. 10, the judiciary exalted the College may be in the realm of in our federal system is the weakest of the Supreme Courts of Canada and the the three branches of government. Madi- United States, among the Law Lords and son and Hamilton both instructed us in other bar leaders in Great Britain, and in the Federalist Papers that among its the judicial conferences and committees of inherent weaknesses, the judiciary can- the United States federal courts, the pro- not levy taxes to support itself, nor can it file of the College in the states and prov- raise an army to enforce its decrees, but inces, down where our Fellows live and is dependent upon the other branches in practice, must be raised. This mandate these and many other important particu- was clearly endorsed by the policy state- lars. Yet we all know that liberty and the ment adopted by the Board of Regents in rights of citizens depend upon an inde- response to the recommendations of the pendent judiciary, free to exercise sound, 2002 Atlanta Retreat of the College. The unfettered judgment without influence or charge of the Outreach Committee is to intimidation. As David Beck urges, law- examine what we do now in the way of yers (and, I think especially Fellows of “outreach” (Liz Mulvey says that “out- the College) have a duty to defend these reach” is Episcopalian for “public rela- rights and to protect the judiciary tions”), and advise what we should do, i.e., against inroads from the other two what our message should be, how we branches. should deliver it, to whom (our “public”) and more. Even this topic, close to my The Federal Sentencing Guidelines of heart as it is, must wait for the next 1984, and subsequent amendments, President’s Page, because of the following including most notably the 2003 Feeney time sensitive matter. (Continued on page 25) THE BULLETIN Page 17 IN MEMORIAM

he College has received word of the Aleutian, Gilbert and Marshall Island Tdeaths of the following Fellows: campaigns. He received his law degree from Boalt Hall at the University of Cali- fornia in 1947. He served as managing John Burnham Bates, Piedmont, Califor- partner of Pillsbury, Madison & Sutro from nia; Peter J. Boyd, Boise, Idaho; Phillip E. 1980 to 1984. Brown, San Rafael, California; Joe H. He is survived by his wife of 58 years, Daniel, Jackson, Mississippi; Will Denton, Nancy Witter Bates of Piedmont, and three Biloxi, Mississippi; Theodore T. Duffield, children. Green Valley, Arizona; John G. Gent, Erie, Pennsylvania; David W. Gibbons, Q.C., Vancouver, British Columbia; Lee V. Former Regent Robert M. Landis, 84, died Hornbaker, Junction City, Kansas; Robert January 1 in Philadelphia, Pennsylvania. J. Huffman, Troy, Ohio; Robert L. Jones, Donations may be made in his name to the Jr., Fort Smith, Arkansas; Robert M. Franklin & Marshall College Scholarship Landis, Philadelphia, Pennsylvania; Henry Fund at Lancaster, Pennsylvania. Latimer, Fort Lauderdale, Florida; Albert R. Malanca, Tacoma, Washington; John G. Mattimoe, Toledo, Ohio; Allen F. Maulsby, New York, New York; Ted S. Miller, Hot Former Regent Flavel Allen Wright, 91, Springs Village, Arkansas; J. Frank Myers, died September 30 in Lincoln, Nebraska. Americus, Georgia; Neal C. Newell, Bir- He received his bachelor’s and law degrees mingham, Alabama; William M. O’Bryan, from the University of Nebraska in 1936 Fort Lauderdale, Florida; Jerome F. and joined the law firm that is now Cline, O’Rourke, Flint, Michigan; Ray H. Williams, Wright, Johnson and Oldfather. Pearson, Miami, Florida; Jackson L. Pe- He is survived by his wife, Marian, and four ters, Cora Gables, Florida; Robert D. children. A Flavel Allen Wright Chair has Raven, San Francisco, California; Patrick been established at the University of Ne- W. Richardson, Huntsville, Alabama; braska College of Law. Lewis H. Van Dusen, Jr., Philadelphia, Pennsylvania. Robert D. Raven, San Francisco, California, past president of the American Bar Associa- John (Jack) Burnham Bates, who died tion, died August 14, 2004 after a long September 20, 2004 at the age of 86, was illness. A longtime partner in the law firm a former Regent of the College and of Morrison & Foerster, he was inducted former managing partner of Pillsbury, into the College in 1970. In 2004 he had Madison & Sutro of San Francisco. He been honored by The American Lawyer as and John F. Kennedy were members of one of the top twelve legal luminaries of the the host committee in 1945 for the forma- past twenty-five years. tion of the United Nations in San Fran- cisco. A native of Oakland, Bates graduated from Stanford University in 1941 and served in the Navy as a supply officer during World War II on the USS Farragut during the Page 18 THE BULLETIN

NOTABLE QUOTES For my teammates and myself, it [the Gale (Continued from page 14) Cup Competition] represented three . . . unique opportunities, First, we were able, for the first time really, to take the skills College for and the knowledge that we had acquired in having law school and apply those skills and allowed us knowledge to the facts of a real case in an

to be pas- ICHON appellate advocacy exercise that let us do sionate M legal research, prepare a written submis- about the

IER sion, and design and deliver an oral argu- legal debate

-P ment. Second, the particular case that was outside the chosen for this year’s competition . . . al-

framework ARIE lowed us to consider some of the most of the M interesting and perplexing questions faced classroom. . in the criminal justice system today...... Never in Third and finally, the competition allowed University us to travel to Toronto to argue our case in was I shown how thrilling the legal profes- front of esteemed members of our country’s sion can be, . . . and it is because of the judiciary in the historic Osgood Hall Law American College that I now know that my Courts, and to meet with like-minded true calling is litigation. . . . [H]opefully, students from across the country. many more students will benefit from such a worthy experience for years to come. Aidan Cameron, University of Victoria, Victoria, British Columbia, responding for Marie-Pier Michon, University of West- the winning team in the Gale Cup Moot ern Ontario, London, Ontario, accepting the Competition Sopinka Cup for the Winning Team in the Canadian Trial Competition THE GENESIS OF AUTHOR JOHN GRISHAM’S WRITING CAREER I should have brought a I was in the courtroom one day out of curi- witness or two osity, when I saw something that would from class, eventually change my life. As so often because no- happens, I didn’t realize it at the time, but

ORLEY body is going it was a life-changing experience. There to believe the had been a rape in our small town, the rape

O. C stories I bring of a twelve year old girl by a man who had back–who I just been paroled from prison. . . . The little was here with girl was left for dead, but she didn’t die.

ENNETH today. She stayed in the hospital for two weeks, K and she survived. The defendant, who was Kenneth really, really a nasty character, was caught O. Corley, within hours of the attack. . . . South Texas College of The little girl’s father was a man I knew, Law, accepting the Fulton W. Haight Award not well, but I knew him, and he was a nice as the best Oral Advocate in the National guy, but not the kind of guy you would pick Moot Court Competition a fight with. He had a big family, and for (Continued on page 19) THE BULLETIN Page 19

NOTABLE QUOTES if I could get that close to the guy, I would (Continued from page 18) get my justice, and I would look at that same jury, and I would say, ‘Okay. I did it. Now you convict me for doing something days after the rape, our little community that every one of you would like to do.’” was just electrified with gossip and rumor about what this family might do. And oddly I left the courtroom and drove home, and enough, there were a lot of people hoping the seed was planted for a courtroom drama that something would happen, real justice, with that issue, a father’s retribution. It old-fashioned justice. To his credit, he did became an obsession, this story. I had never nothing. He waited for the trial to take written anything in my life, fiction, other place. . . . than some of my briefs, some of my lawsuits that bordered on fiction. After a few [W]hen they had the trial just a few months notes and after living with this story, this later, security was very tight. . . . It came courtroom drama set in a small town in the time for the little girl to testify and . . . South with racial issues and a young, because I was an officer of the court, I could hungry lawyer hoping for the big case, late hang around. The judge . . . cleared the one night I finally took out my legal pad courtroom. . . . The only people left were the and wrote the first page of what eventually jurors, . . . the attorneys and defendant, the became A Time to Kill. judge, myself and one other lawyer and a couple of clerks. . . . For two hours the little After writing for about two weeks, I had girl testified. At times she was very brave; finished the first chapter. My wife, Renee, at times she was very frail; at times she was an English major in college. . . . I really broke down; at times she was sobbing. In worked up the courage to tell her that I had two hours, we, all of us together, went written the first chapter of a book and to through every emotion known to the human ask her to read it. . . . I was so nervous that soul—from love to hate to revenge, retribu- when I gave it to her, I left the house that tion to total compassion. It was a roller night and went and walked around the coaster. There were times during her testi- block . . . When I came back, she said, “This mony I looked across at the jurors, and . . . is pretty good. I’d like to read some more.” . all . . . of them were in tears. There were . . We started this process of, chapter by times when the judge was hiding his face. chapter, I would show it to Renee. There The prosecutor, the DA, who could cry any were times in 1984 through 1987 - it took time he wanted to, was crying. The only three years to write the book - there were person who never shed a tear was the times when I quit, and Renee would always defendant, never showed any remorse for say, “I want to see the next chapter.” There anything. were times when I would walk in a book- store and . . . see ten thousand titles and all Finally . . . the judge said, “Let’s take a the best-sellers and think, “There’s no room break.” . . . In my haste to get out, I had left for me. Who wants to hear what I’ve got to my briefcase, and I walked back in the say?” And I’d become very discouraged. I courtroom . . . and the only person in the went through everything that a young courtroom was the defendant. And he was author goes through, but I managed to seated, half asleep, all by himself, with the finish the book early in 1987. It took a lot deputy a few feet away, sort of guarding out of me. It’s a very emotional book. . . . him, but nobody else was in the courtroom. I walked right by him, and I picked up my It took two years to write The Firm, and I briefcase, and I walked by him again to finished it in 1989. And once it was pub- leave. And I was overcome with this thought: “Had that been my daughter, and (Continued on page 20) Page 20 THE BULLETIN

NOTABLE QUOTES And that consciousness does do some- (Continued from page 19) thing to me. . . . We have the highest rate of incarceration lished early in 1991, life changed for me in the world. In poor communities and in dramatically. I was able to walk out of a communities of color, the consequences of law office one day and never look back and this has been devastating. One out of three quit politics and never look back. And I still black men between the ages of eighteen and consider thirty in jail, prison, on probation, and myself to parole. . . . The collateral consequences be the from that are even devastating. I talk to luckiest young women who tell me that they don’t person in plan to get married because they don’t see the world that as a realistic option. . . .

to be able RISHAM [I]n Alabama, thirty-one percent of the black

to do this G male population has permanently lost the full time. right to vote. . . . [T]hese numbers create OHN There is J this despair and hopelessness in ways that no doubt you can feel when you walk with these in my communities. [O]ften in the cases that I mind that work on I talk to the siblings of my clients, I would and it’s always staggering to me when I hear never have written the first book had I not them talking about their futures. I go into been a small-town lawyer. It’s not a dream, the projects and I sit down with these young it’s not something I’ve studied. I don’t boys thirteen and fourteen years of age, and remember one single thought of ever they tell me that they don’t believe that they dreaming, even in high school, college, or are going to live past the age of eighteen. law school, of being a writer. It’s something They don’t say that because of something that came to me with one moment, one that they have seen on TV or that they have moment of inspiration in a courtroom heard about; they say that because that’s twenty years ago. what they are experiencing in their communities. Their friends and their neighbors and Best-selling author John Grisham, their brothers and their siblings are dying Charlottesville, Virginia, relating how he from drugs or dying from gang warfare or began to write effectively dying by being sent to prison for the rest of their lives. And this hopelessness, which is so tangible that you can feel it, REFLECTIONS OF COURAGEOUS ADVOCACY tends to shape everything. . . . WINNER We can be disabled by comfort; we can be I’m a little embarrassed, actually getting disabled by wealth; we can be disabled by an award about courage, because, working our sense of responsibility here or there. All and practicing in Montgomery, I’m so of those things can make us stay quiet. But much aware of all the people who came we need to speak up. It can make us not before me who had to show so much more believe that there’s a role for us in this call courage than we will ever have to show. for justice, when we actually have so much I’m a lawyer, and I’ve been in some very to give. And so I’m really grateful, because I difficult, and sometimes overwhelming think what you’re saying to me this morn- circumstances, but I’ve never had to say, as people forty years before me had to say, (Continued on page 21) that my head is bloodied, but not bowed. THE BULLETIN Page 21

NOTABLE QUOTES [H]istorically the SEC has been stretched (Continued from page 20) thin. Its budget has often not been equal to its existing mandate, and its priorities were clearly areas like the mandatory disclosure ing by giving me this award is that you system, the regulation of broker dealers, want there to be some singing about these fraud enforcement, the regulation of invest- problems. . . . I do believe that we have to ment advisors and stock exchanges. When measure the civility of this society by how the SEC would think about issues such as we treat the poor, the disadvantaged, the corporate governance it was typically way rejected, the hated, the disfavored, not by down the priority list. It was something how we treat the rich and the privileged. In that the Commission often had prudential so many ways there are these challenges reasons for not pursuing. . . . that have to be overcome in order for us to claim to be in a society that is committed to You have seen the SEC Enforcement Divi- equal justice. . . . sion more or less double its activity in the last three years. You have seen an extraor- The work that I do has taught me very dinary increase in the number of derivative basic simple things. I’ve come to believe actions and federal class actions. . . . [T]he that each person is more than the worst New York Stock Exchange values increased thing they’ve ever done. As an advocate, as in value over elevenfold between 1980 and a lawyer, as someone committed to justice, March 2000, from about 1.2 trillion dollars as someone who believes in basic funda- to $12 trillion dollars. You saw a period in mental human rights, I’ve come to really which the very energy at the end of a bull understand that each of us is more than the market deflated into excess. You saw the worst thing. I believe that if you tell a lie, sense of standards that have typified you’re not just a liar, I believe that if you American corporate governance and corpo- take something that doesn’t belong to you, rate law begin to deteriorate and fray at the you’re not just a thief. Even if you kill edges. You saw, in effect, not just legal someone, I believe you’re not just a killer. standards, but cultural standards not And because of that, there is this basic operate as well as they might. The response fundamental human dignity, human right, by Congress most memorably was the that must be protected by law. And to be Sarbanes-Oxley Act, which particularly protected by law, lawyers have to be willing focused on auditing and accounting . . . . to stand up and be heard. But along with this response have begun Bryan A. Stevenson, Montgomery, Ala- initiatives focusing on corporate governance bama, Founder and Executive Director of that to this point amount to what I refer to the Equal Justice Initiative of Alabama, as a modest revolution and may continue to accepting the College’s Courageous Advo- be a real revolution in corporate law or cacy Award may, as I will suggest, take a very different course . . . . It is clear that the concept of checks and CURRENT TRENDS IN CORPORATE GOVERNANCE balances has been revived and strengthened [S]tate corporate law had had the dominant in response to the excesses of Enron and role in corporate governance standards, WorldCom and others, and is viewed as a even as long as the SEC has operated, since key mechanism for reducing fraud and 1934. State standards denominate how dysfunction in the future. But this is only many directors there will be, how they are the first of the initiatives that is occurring. selected, how often they are voted upon, what the voting standards will be with very (Continued on page 22) limited exceptions. Page 22 THE BULLETIN

NOTABLE QUOTES the beneficiaries of the jury system, and it (Continued from page 21) has served our country well. It is important, I think, to observe that we have over eighty thousand jury trials a year, that be also be the envy of the world in its nearly a million Americans serve on juries. corporate governance system? Nearly five Dean and Ethan A. H. Shipley Univer- times that sity Professor, Joel Seligman, Washington number show up at their

University School of Law, St. Louis, Mis- EL

souri local court- B house to E report for jury L

duty. Jurors OUIS ACCEPTANCE REMARKS OF HONORARY FELLOW

decide be- L [W]e share this hope that our societies will tween guilt or remain societies governed by the people for innocence, USTICE

the people, but always under the rule of between J law, under a system of processes, rules, imprisonment principles, which has as its focus the integ- or death, rity of human persons, their autonomy, determine their equality, and their right to participate liability or and share fully in the lives of our societies. assess damages. Their decisions make a We are part of these dreams. We are part of difference to the lives of millions in our the achievement of this dream. The College society every day, have a profound impact has a long history of trying to make some of on our society and our economy. And there these dreams come true, and as members of are few civic activities in life that provide the judiciary, we have some hope that, yes, such a direct contact with our democracy as at times we have managed to move things does the jury. . . . forward, to make things happen in the respect of traditions, but also in the respect The jury is the cornerstone of our democ- of persons, keeping in mind that the law racy, the bedrock of our legal system. It must remain faithful to its roots, but that it must be vital, it must be efficient and it must move along, move along with the must be current. And we, as the trustees of times, accompany life and society. And our legal system, must see to it that there that’s the sense, the meaning, of our work is public confidence and respect for the as counsel, lawyers, professors of law and system that we have adopted. I thank you judges. I think my presence today, your for being a part of it, for supporting this presence, mean that we all share of that project . . . . dream and of those achievements. Robert J. Grey, Jr., President, American Justice Louis LeBel, Supreme Court of Bar Association Canada, accepting an Honorary Fellowship in the College THE LEGACY OF JAMESTOWN [T]he legacy of Jamestown . . . applies to all ABA PRESIDENT EXTOLS JURY SYSTEM trial lawyers and to judges. Sir Walter Thomas Jefferson said, “I consider trial by Raleigh was a member of the Middle jury as the only anchor ever imagined by man by which a government can be held to the principles of its Constitution.” We are (Continued on page 23) THE BULLETIN Page 23

NOTABLE QUOTES Temple of the British Inns of Court in (Continued from page 22) London. His attempts of colonialization in the New World were singularly unsuccess- ful, and back at the Middle Temple where There is second a nascent movement to they postmortemed the events and consid- separate corporate chief executive officers ered the future colonialization of the New from the corporate chair . . . . It is the World, the discussions moved to the singu- hottest proxy election topic this year in the lar domination of one man . . . as they corporate governance area. And opinions thought about how it was that they were are very broadly split on this one . . . . going to colonize this New World. . . . A third initiative . . . is a chief regulatory Captain Christopher Newport had been officer who reports solely and directly to placed in command of this voyage, and the Credit Committee . . . rather than to there was a little box that he was entrusted the chief with, and even King James himself said financial that the box was not to be opened until the officer or voyagers made landfall in Virginia. . . . The the chief tiny band on this savage coast are now executive . R without a legally sanctioned leader. . . . officer . . . , J Who will the new leader be? The seal is . Again, it broken and the lid is lifted, the tense si- is an area REY lence is broken by the voice reading the where one names of those appointed to the Council in J. G can de- Virginia. . . . Is this then the anticlimax? bate, and Far from it . . . . The Royal failure to desig- legiti- OBERT nate a leader for the colony has provided R mately the perfect climax. It must chose its own debate, is executive. A few days later, Winfield is the SEC chosen by the Council in a free election on getting the American soil, and American democracy balance begins. From that small little box came the right between law compliance and the need structure and the organization that would for corporations to be productive and inno- grow into the first legislative body in the vative? Nonetheless, this idea will receive a New World and later develop into a free great deal of attention I am sure in the and independent government known as the years to come . . . . United States. In the years since, this It seems to me that the history of corporate American expression of democracy born in governance and corporate law generally Virginia has influenced the creation of during the 20th century has been one of fits governments and the modification of gov- and starts. It has been one where we react ernments around the world. to crises and sometimes overreact to them. It is fascinating, I think, to note that this It has been one where, when we are com- American experiment in democracy began fortable with the economy as many were in by adherence to the concept of the rule of the late 1990s, the interest in the regula- law. The authority of the executive was in tory or the compliance side dissipates . . . . that little box. It established the Council, How can we get it right, modulating it for but there needed to be more. . . . It was the large corporations and smaller ones? How adherence to the rule of law that marked can we get it right so American capitalism, which in many respects has been, even in its darkest days, the envy of the world, can (Continued on page 24) Page 24 THE BULLETIN

NOTABLE QUOTES role, of reviewing the President’s acts. (Continued from page 23) They knew, because common sense dic- tates as much, that institutions that are the beginning of the American experiment large in power and large in their impact, in democracy and has sustained it ever inevitably have run-ins that are large in since. . . . scale and large in their ultimate consequences. But the Framers also trusted And so, you can see that from that little box that in times of trial, their balanced sys- and the events that followed, the legacy of tem of government would provide an even Jamestown is the rule of law, the rule of law larger perspective. They knew that the in a unique American experience and experi- people of their fledgling nation could be ment in democracy that has flourished here counted on to choose their leaders wisely and has been exported abroad. . . . and that those chosen could be counted on to respect the roles set forth for them. Justice Donald W. Lemons, Supreme Court of Virginia, Richmond, Virginia And, as we face the trials of O’CONNOR DELIVERS POWELL LECTURE today, I ONNOR think we He [Justice Lewis Powell] wrote more than

can find O’C five hundred opinions during his service on

hope in the AY the Court from 1972 to 1987. Many were dignity D very significant ones. with which It was an enormous privilege to serve on the presi- dency and ANDRA the Court with him for six full years, and S no one did more than Lewis Powell to help the judi- me get settled in as a new Justice. . . . [H]e ciary have emerged USTICE willing to talk about cases and the issues. J His door was always open. I miss those from even discussions and those opportunities and the rocki- Lewis Powell to this day. Those who seek a est episodes of the past. No doubt, when model of human kindness, decency and this same Lewis Powell speech is given a exemplary behavior and integrity would hundred years from now, it will be remem- have to look very long and hard and deep to bered that the tasks before us were large. find a better example than he. . . . And I’m confident that it will also be re- membered that we, like our forbearers, When the Founders crafted the masterful were strong enough to meet them. Constitution that survives to this day, could they have . . . anticipated the human dy- Associate Justice Sandra Day O’Connor, namics and the battles of will that would Supreme Court of the United States, Wash- pepper the centuries to come and change ington, D. C. the course of history in such fascinating ways? Perhaps. Certainly at a minimum, the Framers foresaw that there would be [T]alking with Kelly [the speaker’s daugh- times of crisis, real and perceived, interna- ter] about this evening . . . caused me to tional and domestic, personal and political, reflect on why one becomes a trial lawyer to and that these times would inevitably put begin with. Why did any of us choose a the President in the boundary of pushing the role of defining his own powers, and put the courts in the position, the precarious (Continued on page 25) THE BULLETIN Page 25

NOTABLE QUOTES grace, wit, intelligence, love and dedication (Continued from page 24) to the College.” And central casting sent us David and Alison. They fit the profile. profession that renders our life so unpre- Newly installed President Jimmy Mor- dictable, that places into the hands of ris, paying tribute to David and Alison Scott twelve strangers the ability to decide the fate of our clients and our own success and failure. And I believe at least part of the I’ll put it the short way: I want the “trial reason is because we all want to do some- lawyer” to come back to being a sobriquet, thing that matters. instead of a pejorative. Sally Quillian Yates, speaking on President Jimmy Morris behalf of the Inductees The advertisement said: “Needed: charm,

PRESIDENT’S REPORT the crime,” and concluded that the Sen- (Continued from page 16) tencing Guidelines had failed to achieve their original purpose of fair and uniform sentencing. Amendment, requiring, inter alia, reports about judges who vary downward This Report of the College called for the from the guidelines and further limiting replacement of the existing Federal the factors available for discretionary Sentencing Guidelines by simplified non- consideration, have long been seen as binding guidelines, the repeal of the unwarranted limitations on judicial Feeney Amendment, the repeal of all discretion. Earl Silbert’s blue ribbon mandatory minimum sentences for drug Task Force was appointed to address the and non-violent crimes, and the reconsid- concerns created by these guidelines. At eration of all other mandatory mini- that time, two direct challenges to the mums. very constitutionality of the Guidelines were wending their way to the United To quote from the College’s press States Supreme Court. release of September 13, 2004: The Silbert Task Force produced an out- This Report concludes that to the standing report, “United States Sentenc- extent the Guidelines have achieved ing Guidelines 2004: An Experiment That their goal of reducing disparity in Has Failed,” which in September 2004 sentencing, they have done so at an was adopted as a policy statement of the unacceptable price: the Guidelines College by the Board of Regents. The regime is “too complex, rigid and committee reported that the Guidelines mechanistic,” it represents a sub- drastically diminished the use of sound stantial and unwarranted “incur- discretion in sentencing, effectively trans- sion on the independence of the ferred the power to depart downward from federal judiciary;” it has brought statutory minimum sentences to the about “a transfer of power from the Office of the United States Attorney, judiciary to prosecutors;” and it has caused many documented Draconian sentences, which failed egregiously “to fit (Continued on page 26) Page 26 THE BULLETIN

PRESIDENT’S REPORT just punishment and a primary goal of the (Continued from page 25) Sentencing Reform Act.” The members of the Federal Criminal resulted in a “proliferation of un- Procedure Committee strongly oppose any justifiably harsh individual sen- quick “fix” to the perceived “problem” of tences.” The Report urges its re- Booker/Fanfan, especially the implementa- placement by “non-binding guide- tion of more and stricter minimum sen- lines that judges may use to inform tences. their sentencing discretion, but The reasoning of the College Report and the from which judges may depart for current recommendation of the Federal good reason explained on the record Criminal Procedure Committee of the and with the sentence subject to College caution against such a Congres- review on an appeal for abuse of sional reaction, at least until the system discretion.” envisioned by the Supreme Court, use of The Report and press release can be found the guidelines as a guide to sentencing, at the College’s website – www.actl.com. subject to appellate review, has a chance to work, and, if the result of discretionary The Report concluded that the recommen- sentencing proves to be chaotic or inappro- dations should apply whether the Guide- priate, then Congress could consider alter- lines survived the constitutional chal- natives. lenges in Booker and Fanfan in whole or in part. Those who believe that the independence of the judiciary is a cornerstone of liberty Since the Silbert Report, the U.S. Supreme and of our system of justice, and who Court in United States v. Booker and United support the recommendations contained States v. Fanfan (“Booker/Fanfan”), held in the College’s Report and advocated by the Guidelines unconstitutional to the our Federal Criminal Procedure Commit- extent that they were mandatory, but tee, might well consider addressing the preserved them as “advisory,” essentially matter with their own Congress people, the result advocated by the College in its now, before a precipitous “fix” becomes Report. an irresistible impulse in Congress. The The College’s Federal Criminal Procedure grounds for your approach to Congress Committee, chaired by Liz Ainslie of Phila- for restraint have been eloquently stated delphia, is addressing the Guidelines after in the College’s Report opposing these the impact of Booker/Fanfan, and the mandatory minimums, and favoring potential response of Congress. discretion in sentencing, as restored to the judges by the Supreme Court in Some in and outside Congress have sug- Booker and Fanfan. gested that the rulings in Booker and Fanfan should be “fixed” in various ways, e.g., additional Congressionally established mandatory minimum sentences. Clearly, such a response would restore the untoward effect of mandatory minimum sentences noted by the College in its Re- port (p. 35). The Sentencing Commission itself has said that they “ compromise proportionality, a fundamental premise for THE BULLETIN Page 27

LETTERS TO THE EDITORIAL BOARD Perhaps we have been too intent on chasing (Continued from page 4) paper and the dollar. T. Maxfield Bahner, Chattanooga, Ten- modern day lawyer is as responsible as nessee any other factor. Lawyers who have established themselves as “litigators” who have never tried cases, are mentoring and Your observations and opinions, . . in my teaching the younger lawyers: “to avoid a judgment, are very correct. . . . I . . . hope trial at any cost”. . . . the leadership of the bar as a whole takes notice. However, I doubt it will. There are clients out there who “need” many of their lawsuits settled, and I am 84 years old and was admitted to the “need” some of their lawsuits “tried.” The Kentucky Bar in 1942. Except for four client’s search for the lawyer willing to years in the Army, I have been a civil ride into the courthouse is becoming trial attorney ever since. Like you, I more difficult. experienced Code Pleading, the emergence of the Federal Rules of Civil Procedure What can the American College and other and their abuse in recent years. I person- legal organizations do about this ever ally know the basis of your opinion. May increasing problem? Seminars and pro- you continue to educate the bar on its grams should be directed toward educating problems. the modern day trial lawyer that the client is often best served by “trial.” Outside Uhel O. Barrickman, Glasgow, Kentucky forces such as the American College should conduct “interventions” in the continuing institutionalized “settle at any costs” men- We have created a legion of glorified tality being passed down from generation to clerks as opposed to trial lawyers. [The] generation of “litigators.” Lawyers must be comments on discovery abuse denote the taught that there is nothing wrong with main problem . . . . Deposing everyone in “losing” if the client wants a trial. All is sight and asking elementary questions at wrong with the “fear of losing” being in- great length do very little to resolve law- grained in our “litigation” bar to the detri- suits. ment of our clients. Hence, the absolute need for mediation, Kenneth L. Tekell, Houston, Texas arbitration, or settlement in general. Eco- nomics dictate no other path. We, in the profession, are to blame for the “vanishing I agree with Mr. Tekell’s letter to you . . . . trial.” It might be further added that the less Garfield R. Jeffers, Wenatchee, Washing- experience a “litigator” has, then the more ton abusive he or she seems to be relative to discovery. There exists a clear correspon- dence in that regard, but, how else, pray tell, can one overwork and, thusly, overbill As I recall, it was in the mid—late a file? Surely, not at the courthouse. 1970’s that a “new breed” of lawyer appeared—the “litigator,” which I have Ronald D. Krist, Houston, Texas always distinguished from “trial lawyers.”. . . Solving the problem is going to take more imagination that we have exhibited lately. (Continued on page 28) Page 28 THE BULLETIN

LETTERS TO THE EDITORIAL BOARD practical realities of acting in the best (Continued from page 27) interest of clients in the present system drives me, and my brother and sister trial lawyers, relentlessly in the direc- To me, most of the judges are no longer tion of the litigator. trial judges, but “case managers.” . . . With Judge [Gerhard] Gesel, life was simple—he Edward T. Hinson, Jr., Charlotte, North held a status conference weeks after the Carolina answer was filed to meet counsel, and to let them know that civility was to prevail, and that he did not tolerate combative (OUT OF DEFERENCE TO THE HEADING OF THE discovery—and God help the lawyer who FOLLOWING COMMUNICATION, WHICH READ “UN- was out of line, either during discovery or OFFICIAL AND PERSONAL,” AND GIVEN ITS at trial! . . . SOURCE, WE EXERCISED OUR DISCRETION NOT TO The other problem has been “over-lawyer- PUBLISH THE OPINIONS IT CONTAINED, BUT THE ing” by the “litigators.” . . . In my opinion, INTRODUCTION WAS SIMPLY TOO GOOD TO PASS UP. your view that a significant change is ED.) needed is eminently correct. I am nowise certain as to which course we Stephen A. Trimble, Washington, Dis- might take to improve the jury trial scene, trict of Columbia but I am kinda like Jerry Clower’s coonhunter (who had climbed a tree to shake a coon out and found a bobcat up there)—”Go ahead and shoot on up in here, From the time I was a little boy reading one of us has got to have some relief!” about Abraham Lincoln and Atticus Finch, I wanted to be a trial lawyer. The [The Honorable] Wm. R. Wilson, Jr., dream came true . . . . Unfortunately, Rasputin Mule Farm, Little Rock, Arkan- increasingly my practice seems headed sas [whose day job is United States Judge towards your definition of a litigator. I for the Eastern District of Arkansas] would like to stop the slide, but the

HONORARY FELLOW IN UNUSUAL LAWSUIT

ne of the College’s Honorary Fellows “It is unlikely that Kentridge, who spent Oin England has ended up in a bizarre the better part of his career defending lawsuit that eventually may result in the political prisoners in South Africa, cares a continuation of legal foxhunting, a wildly whit about foxhunting,” the magazine says. controversial and complicated situation in “But he does care about the law, and he that country. knows that legal scholars have been waiting a long time for someone to take a crack According to the January 24-31 issue of The at the Parliament Act [of 1949].” New Yorker, Sir Sydney Kentridge, whom the magazine calls “the country’s most In an eight-page article, the magazine’s Jane eminent constitutional lawyer,” has been Kramer writes that Kentridge will argue hired by the fox hunters organization to that the 1949 act is illegal because, among appeal for a judicial review of the ban other reasons, it passed Parliament without against fox hunting in England. the consent of the House of Lords. THE BULLETIN Page 29 Bon Mots from St. Louis Meeting

I was a young lawyer, and I was given a David W. Scott, Q.C., President of the criminal appointment. . . . I went into College, introducing the Mayor of St. Louis federal court and I was representing a man who had been already convicted of stealing treasury checks. He had pled guilty, was I am honored to be here. I looked over the given a suspended execution of sentence. list of attendees and I can say, I think with- But he violated the provisions of the court out fear of refutation, that I have never order, so they brought him in for a hearing before been in a single room with this much to take away his probation and put him in talent. In Chapel Hill, we would say there prison. So I represented him on that rela- hasn’t been this much talent assembled in a tively not complicated issue. I’m sitting single venue at least since Michael Jordan next to him in the courtroom, and the dined alone. I realize that at the White United States Attorney comes in. He is House, and maybe the University of Vir- standing by his desk shuffling papers and ginia, they might use other comparisons. . . . getting ready. I’m sitting next to my client at the counsel table, and the Magistrate [Y]our President, Mr. Scott . . . indicated almost comes in, and he says to the U.S. Attorney, immediately that I don’t look like he expected a “Counselor, is the government ready to law school Dean to look. I hear this from time proceed?” He says, “Yes your Honor, the to time as I travel around the country. At first I government is ready to proceed.” He turns took it as a compliment, thinking that maybe to me and he looks at me and he says, “Is I’m not as nerdy or as arrogant as is usually the defense ready to proceed?” And I said, called for in my line of work. But then I real- “Yes, your Honor, we’re ready to proceed.” ized that people were really just saying I’m a Then a gentleman in the courtroom comes lot larger than they ever expected a law school around and whispers in my ear, “Counselor, dean to look. I explained this to my wife of in federal court you are supposed to stand twenty years, and she said, I’m sure gener- when you address the judge.” My client ously, that I’m a lot larger than she ever ex- looked at me, goes like this [presses his pected me to look either. . . . open palm against his forehead] and slides Dean Gene R. Nichol, University of down in his seat. (Pause for effect). He’s North Carolina School of Law already served his three years . . . by now. The Honorable Francis G. Slay, Mayor of St. Louis And I might tell you, Mr. Scott, that the gentleman who referred to the Judge as “Your Worship,” that’s not bad. Is it Jimmy [Morris, Mayor Slay has municipal responsibilities the president-elect of the College, who sat and will be on his way. As he leaves, I did beside him on the dais]? Jimmy managed to do want to say that this morning at the break- that before every case he tried. . . . . fast . . . in our culture, we address the There were two people in my [first-year Mayor as “Your Worship,” which is the law] class – two men – who took over the English tradition. I said, “Good Morning, lectures. And I used to think: “If they know Your Worship, “ and he looked startled, a what they’re talking about, I’m not getting little taken aback, but I think he liked it. this.” I really had in my mind to leave. . . . So if you are in the process of getting a building permit I would suggest . . . . (Continued on page 30) Page 30 THE BULLETIN

BON MOTS David W. Scott, Q.C., President of the (Continued from page 29) College, who was the presiding judge in the finals of the National Trial Competition A professor in one particular course I remember said, “I’m gonna give you all an Our next speaker, I mean our next real exam tomorrow to teach you how to take a speaker, will be a guy who is cheap and law school exam.” . . . And about a week takes advantage of his friends. Last time I later he said, “I’ve graded the papers” – and got invited by Mr. [John] Grisham to meet he’s probably done this a hundred times, with him, was a few weeks ago. He called but I didn’t know that – “I‘ve graded the and said that it was a great opportunity for papers, and, as I call your name, come up us to get together, and we met in New and get your paper.” He called my name Orleans at a fund-raiser, a political fund- first in what I consider was a rather rude raiser. Being a yellow dog Democrat trying way. He didn’t say Mister, he just said to exist in a Trent Lott society, I welcomed “Merhige.” So I got up and went towards his the opportunity to get out of the environ- desk, and as I approached him, he said, ment for a few hours and be with an old “You got a 38.” And even now, the hairs on friend. It turns out, however, we had to my arm stand up. That was 60 years ago. make a thousand-dollar contribution to get And of course, the giggling started, and the in the door. Worse still, I convinced a two people I mentioned before were leading prominent Biloxi businessman who had it. I remember the thought that came to my been trying to get an audience with Mr. mind was, “I’m going to kill him.” And I Grisham for months and months and meant it. And then he hit me my divine months to put up a thousand dollars and to moment: he just sort of leaned over and send his personal envoy, a retired promi- said, “Incidentally, gentlemen, that was the nent newspaper editor, to perhaps get a highest grade.” It was that moment that I chance to speak to John on this auspicious felt: “You’re gonna do it, and you’re gonna occasion. Well, after waiting for hours, the be good at it, and you’re gonna like it.” candidate came and spoke and went, and no Retired Judge Robert R. Merhige, Jr., Grisham. So I’m trying someway to explain recipient of the Samuel E. Gates Litigation this, although I fully had expected it; didn’t Award surprise me. But I had to explain it to my guest who had just put up a thousand dollars. And next day it turns out, we I learned more from that competition about learned that Grisham, was in town, except being a trial lawyer than I ever could in the he went to speak to the twenty-thousand- classroom: how important it is to be confident dollar donator club, and just left us kind of in the courtroom, how to remain composed in a lurch there. . . . when the Judge rules against you or when [W]hen I got this invitation, [to introduce you don’t understand the Judge’s ruling . . . . John Grisham] . . . I had a little bit of Rena Upshaw-Frazier, Winner of the misgiving. Couldn’t help but think about Best Oral Advocate Award, National Trial the time President Kennedy invited Will- Competition iam Faulkner, who had a chair out at the University of Virginia at the time, to come Rena was gracious enough not to say that to the White House for a formal dinner, and the judge’s ruling that she was unable to Faulkner said, refusing, it seemed like an understand was mine. And the three of four awful long way to go just for supper. . . . judges—real judges–who were there, Rena, you should know, could not understand the ruling either. (Continued on page 31) THE BULLETIN Page 31

BON MOTS St. Louis, Jimmy. I’ll be happy to come (Continued from page 30) speak.” And he said, “Well thanks, but why is that a perfect time?” And I said, “Well, that’s the morning after the Cardinals will And so when I told Lucy, my wife, that the win the pennant.” invitation had come in, she said, bless her heart, she said, “Can we afford it?” Then, I met Jimmy six years ago . . . . I was sued when it became apparent that he [Grisham] by a plaintiff who was and is asking for was not going to volunteer to send down his eight million dollars in damages . . . . The private jet to get me, we sold some cows. case is still ongoing so I can’t talk about it, Yesterday Lucy helped me fix the flat on but we haven’t gone to trial yet. Jimmy has the truck, and we got on up here. . . . done a great job in six years of keeping the thing away from the jury. I hired him In The Rainmaker, John . . . said nice because of his reputation as a great trial things about me in the acknowledgment lawyer and people tell me all the time that section of the novel [acknowledging this guy’s from the old school; he’s an old Denton’s assistance with respect to the Southern trial lawyer who rarely, rarely legal aspects of the book], most of which are loses, and juries will follow him anywhere. not true. And it certainly changed our lives That’s nice to hear, but I haven’t seen that forever, because you know his novels are yet, because we can’t get my case to trial. published worldwide, and I’ve gotten calls I’m the defendant. I really don’t want to from as far away as North Africa from rush the court, but after six years of this people needing representation: great cases, lawsuit, Jimmy’s cumulative fees are like two guys in North Africa wanted for me slightly more than what the plaintiff is to develop a class action against Budweiser demanding. . . . I’ve heard Speilberg say for those people in that part of the world one lawsuit per movie is part of the over- who had long mustaches, because the hairs head. But frankly, with people like Jimmy of their mustache would get caught in the Morris in the overhead, it’s almost cheaper crevices of the beer can . . . . Then, there to stop writing books. . . . was a call from a lady in France who had some idea that she owned some part of [S]ix months to the day after I finished law England, going back a thousand years. school, I found myself sitting in a crowded courtroom, looking at one hundred prospec- William L. Denton, FACTL, Biloxi, tive jurors, and they were looking at me. I Mississippi, introducing John Grisham had never tried a case before and had not planned to try one on that day. The docket was very crowded. There were three crimi- Twenty-five years ago when I was in law nal cases above mine. At the last minute all school at Old Miss, Will Denton started three of them went off on pleas, and the extracting huge sums of money from insur- judge turned to me and said, “Mr. Grisham, ance companies in bad-faith cases along the you are next. Under the rules of our court, Gulf Coast in Mississippi. And he was a it’s time to go. Are you ready?” Well, you pioneer. He was one of the first guys to do can’t say you are not ready. I said, “Sure it down there, and his courtroom victories judge, let’s have us a trial.” Seated next to and talents and antics and verdicts became me as we looked out at the jury pool was almost legendary. . . . If you think he sold my client, who was charged with murder. It some cows to get here, you are crazy. . . . was a murder trial, not capital murder, but Jimmy [Morris] asked me sixteen months it felt like it. . . . I was stumbling my way ago . . . , “Could you come speak in St. Louis on October 22?” And I did some quick math, and I said, “That’s a perfect time to be in (Continued on page 32) Page 32 THE BULLETIN

BON MOTS Well, I’d been approaching the bench for (Continued from page 31) three days, every five minutes, trying to hope that somebody would tell me what to do. The prosecutor had long since just thrown in the through jury selection. And it became towel. He wouldn’t even go to the bench with apparent right off the bat that I really did me. He didn’t care what I said up there. He not know what I was doing. I was sure I waved me up. He didn’t even get out of his didn’t belong there. My client suspected it seat. And I walked up to the bench, really early on. . . . [T]he jury sat there for three just a nervous wreck. And the courtroom was days and watched as I made every mistake crowded and the jury was ten feet away. The that an ignorant rookie could possibly judge slid the microphone to the side, he make. . . . I had no idea of what I was leaned down and I leaned up, our noses were doing. At the end of the first day, my client about that far apart, and he said something moved his seat as far down to the defense that I will never forget. He looked down and table to get away from me as he could, and he said, “Do you need to go vomit?” And I basically [he] stopped speaking to me after said, “Judge, I don’t know what I’ve got to do, the first day. . . . [T]he pathologist particu- but I’ve got to go.” He said, “Okay, but this is larly fascinated me, because he testified what I’m gonna do. I’m gonna keep everybody with unbelievable detail that the greatest right here. We’re just going to take a little distance the barrel was away from the time out. I’m not going to call a recess. I’m deceased’s head at any time during which going to keep the jury in the box. Go through the six bullets entered his head was four that door. Upstairs there’s a restroom. Hurry inches. I quizzed my client about it during a up.” I sprinted out of the courtroom. Nobody recess, and his response was, “I thought it moved. I came back five minutes later. I felt was a hell of a lot closer than that.” . . . somewhat better. I looked at the judge and he [T]hroughout this trial I kept telling myself, looked at me, and I looked at him, and he “You’d better work on that closing argument looked at me. Then he finally looked over at cause it’s going to have to be good.” . . . And the jury as if they’re all yours. And I walked so, after three days of trial late in the after- over a few feet and I had no idea of what to noon, the moment had arrived, and the say. And I said, “Folks, I apologize for what prosecutor, the district attorney, got up to just happened. I’m sorry I had to leave like make his final summation, his final appeal to that. But I also want to apologize for the way the jury. . . . [We] listened with great atten- I’ve handled this case. It will come as no tion, great fascination, as he put together a surprise to you that this is my first case, and very compelling reason why my client should I really wasn’t ready for it. Six months ago I be sent to prison for forty years. I could tell was in law school, and I’m sorry. I’m just the jurors hung on every word. It was quite a sorry for the way I’ve defended my client, and performance. I was sitting there with a legal I’m just kinda sorry for being here, you know. pad in front of me without a single word I just . . . .” They started nodding a little bit, written on it. I felt very alone and very sick. I you know. And I kinda got warmed up; I hadn’t slept in three days, and I was worried kinda got a little rhythm, and I said, “You about getting sued for malpractice or dis- know, I’m sorry that I wasn’t better prepared, barred, or that’s what should have happened but my client here, this is his only day in to me. And the judge who was a great old court. This is the only trial he’s gonna get trial judge, who had been through it as a and he certainly deserved far better than young lawyer, he finally said, “Mr. Grisham, what he got for a lawyer. And I hope you it’s your turn for the closing argument.” And I won’t hold it against my client, my perfor- stood up, and when I did my knees just mance notwithstanding. I’ve already apolo- turned to jello, and I leaned on the table and I said, “Judge could I approach the bench.” (Continued on page 33) THE BULLETIN Page 33

BON MOTS I said “Dean, do you remember when you (Continued from page 32) allowed me to come and interview at the law school? Do you remember that young gized for that. My client deserved better. You wiry, lanky kid from Richmond, Virginia folks are about to home, and I’ll go home, and who walked into your office in 1973 wearing we’ll all go home, but for my client, it’s his the fabric de jour, double-knit polyester only day in court.” And you know, I thought I with a tie wide enough to be referred to as a had their attention, and I said something chest protector, an Afro that was so large that I later took back. I said, “Look folks, the that when the wind blew, I had to resist it last three days have not been particularly with all effort in my neck muscles?” He said enjoyable for me or for you. I’m not sure I’m “Robert, I do, I do remember you.” And I going to do this again. If y’all will give my said “Dean, do you remember how we client a break on his lawyer, I promise you looked at each other when I walked into this is the last case I’m gonna try.” your office, how we looked at each other in horror?” He said “Robert, I do.” I said, The DA jumped up and objected, and the judge “Dean, I was afraid of that.” But do you sustained, but I’d made my point. I got, you know what he said , he said, “I am so very know, I relaxed, I was able to relax in front of proud of what you’ve accomplished.” And I the jury, and I was able to talk to them and said, “Dean, I appreciate your not judging talk about the weaknesses. It was a self- the book by its cover.” defense case, and our case was not as hopeless as I made it sound. And when I finished I Robert J. Grey, Jr., Richmond, Virginia, realized that the courtroom was quiet, and the President of the American Bar Association, jurors were listening, and I turned and on encountering the dean of the law school thanked them. I looked at the judge, and he at Washington and Lee University, Dean winked at me, and I went and sat down. When Roy Steinheimer, for the first time in I sat down my client had moved his chair back twenty-one years. down close to mine, and he put his arm around me and he told me that he loved me. At that point I really needed to be loved. And it wasn’t On every single one of these trips, my long before the jury brought back a verdict of uncomplaining wife Alison, a fabulous not guilty. . . . supporter of the College and its President, has been by my side. Our only disagree- Best-selling novelist and lawyer John ment, which occurred every week, was what Grisham time to leave for the airport. . . . President David W. Scott, looking back John [Grisham], while you are here, you on his year as President of the College might have a word with Jimmy about your case. Last night at our reception I was talking to Mike Smith, who is a lawyer in He has done all this strictly adhering to his Richmond, who said, “It’s too bad about credo, which some in this room have per- John Grisham not being able to make it.” sonally experienced: “Early to bed and early And I said, “What do you mean not being to rise, and you miss the opportunity to able to make it?” And he said, “Well, his meet a lot of interesting people.” case is starting on Monday in Richmond.” President Scott, paying tribute to his He said, “It’s number four on the list of successor, James W. Morris, III cases, and the first three have settled!” President David W. Scott, Q.C. Page 34 THE BULLETIN

CELEBRATION OF BROWN V. BOARD And does the American idea of equality mean (Continued from page 8) much if all over my own state and much of the nation, we countenance rich and poor public schools, not just private schools, rich examination “inconclusive.” Warren said and poor public schools, as if it were thought inconclusive, but I have always thought he acceptable for our government to treat some really meant beside the point. Beside the of our children as second and third and fourth point, because given the breath-taking class citizens? Our religions teach that every harshness that was pressed in Brown, the child is equal in the eyes of God. We fund our nature of the discrimination, and given the schools as if we didn’t believe it. overarching importance of the rights at stake, Chief Justice Warren concluded that And does the American idea of equality if the American idea of equality was un- mean much if now over forty-five millions of troubled by this crushing subordination, us have no health care coverage of any kind, then frankly, the American idea of equality leaving us standing alone among the major wasn’t worth much. We might talk about it industrial nations in failing to provide in the Declaration of Independence, we universal coverage? We spend more per might pledge our mythical allegiance to it, capita on health care than any other country but in fact it was a sham, a fraud. And that in the world, but we also leave more of our conclusion, the idea that the American fellows outside the system, in the shadows, aspiration to equality was worthless, Earl though as Martin Luther King reminded, of Warren, to his eternal credit, was both all the forms of inequality, injustice in unable and unwilling to accept. health is the most shocking and inhumane. And surely this morning, fifty years later, And does the American idea of equality Earl Warren’s question about the reality of mean much if our own system, the legal the American commitment to equality could system, is perhaps the most inequitable of be our question as well. We could ask this all? Jimmy Carter wrote years ago that day if the American ideal of equality would ninety percent of the lawyers represent ten mean much if the United States Department percent of the people. We are over lawyered of Justice ever prevails in its claim that a and under represented. That may be an United States citizen can be grabbed off the exaggeration - might be - but the legal streets of Chicago, declared an enemy of the system surely prices out, fences out, a huge State, thrown into a Navy brig in South segment of our community. Study after Carolina, no charges, no lawyer, no hearing, study shows that at least eighty percent of no jury, no trial, no law, a stranger to the the legal need of the poor and of the near Constitution forever on the basis of the poor goes unmet, making “equal justice signature of a single politician, as if anyone under law” a mockery on our courthouse in our government has that much power. walls in every state, in every city, in every county of this country. And we can ask if the American equality notion means much if the wealthiest nation Does the American idea of equality mean on earth, the richest nation in human much if, across the nation, we continue to history, allows a fifth of its children to live yield to a growing trend of resegregation, in crushing poverty, a record far worse than exacerbated by economic inequalities and a many other industrial nations, nations who regime of claimed public accountability that don’t talk so much about equality, almost a allows some of us to purchase advantage for quarter of black and Latino kids officially our children, while others remain locked at poor, as if any theory of justice or virtue the bottom of economic and social life? could explain the exclusion of innocent

children from the American dream. (Continued on page 35) THE BULLETIN Page 35

CELEBRATION OF BROWN V. BOARD trary to the most basic promises we make (Continued from page 34) to each other as a nation, and it is not a close call. . . .

And does the American idea of equality Brown’s challenges must be our challenges mean much where in my State and across if we believe with Dr. King that the arc of much of the South children of undocu- the moral universe is long, but it bends mented workers, who against all odds toward justice, if we believe with Robert navigate our middle schools and graduate Kennedy that history will judge us by the from our high schools, no matter how extent to which we have used our gifts to hard they work and no matter how rigor- lighten and enrich the lives of our fellows. ous their programs, they are locked out of And Brown’s challenges must be our chal- our public universities and community lenges because John Lewis, Congressman colleges and of their chance for a powerful John Lewis . . . was right when he said that future, as if they were strangers to the America is a very, very different place than states in which they have lived most of it was in 1954, and it’s different because their lives, members of a permanent thousands and thousands of people chose to subclass, welcomed here for cheap labor, get in the way. Citizens got in the way; but denied the broader benefits in their lawyers got in the way; judges got in the communities? way, even Presidents got in the way. Does the American idea of equality mean And Brown’s challenges must be our chal- much if almost five million Americans can lenges even when this work is not as popu- be denied the fundamental right to vote lar or as shared or as supported as it ought because of felony disenfranchisement laws, to be, because Fannie Lou Hamer didn’t do with blacks and Latinos heavily over repre- an opinion poll when she started the Mis- sented in that five million? sissippi Freedom Democratic Party and Rosa Parks didn’t conduct a focus group The greatest lessons of Brown for us then before she sat down for freedom. are that Brown’s questions must be still our questions, and that Brown’s challenges, Brown’s challenges must be our challenges which go to the heart of the promise of because the virtue of our nation is still in the America, must remain our challenges as making. Our contributions, this generation’s well. Brown’s challenges must be our own. contributions, are still on the line. We, too, are Brown’s challenges must be our own par- called upon to add our chapter. And in the ticularly where I live, because the South is crucible of this time, this immensely challeng- the native home of American poverty, ing and dangerous time for civil rights, it is where we produce more poor people and vital that we become fully engaged in what more political leaders who are untroubled Daniel Webster called the great work of hu- by it than the rest of the country, where we mans on earth, achieving justice. have the longest history of government I am haunted by a passage from Ralph aimed at separating the royalty from the Ellison’s novel, Juneteenth. There he riffraff, the chumps from the swells, and wrote, “We are a nation born in blood, fire where we tend to believe, all facts to the and sacrifice. Thus we are questioned, contrary, that the only thing wrong with judged, weighed by the ideals and the this country is that those at the bottom events which mark our boundaries. These have too much and those at the top don’t transcendent ideals interrogate us, judge have enough. us, pursue us in what we do and what we Brown’s challenges must be our own do not do. They accuse us ceaselessly, and because these rank denials of equality represent a marginalization that is con- (Continued on page 36) Page 36 THE BULLETIN

CELEBRATION OF BROWN V. BOARD when he spoke it. “It was the boast of (Continued from page 35) Augustus that he found Rome brick and left it marble, a phrase not unworthy of a great Prince. But how much nobler would our their interrogation is ruthless, scathing sovereign’s boast be when he shall say he until, reminded of who we are and what we found law dear and left it cheap, found it a are about and the cost we have assumed, sealed book and left it a living letter, found it we lift our eyes to the hills and we arise.” the patrimony of the rich and left it the Our ideals of equal justice question and interro- inheritance of the poor, found it the two-edge gate us. They examine us repeatedly and they sword of craft and oppression and left it the find us lacking. The excuses we offer do not staff of honesty and the shield of innocence?” satisfy, not if we are who we claim to be. So Brown’s challenges must be our own, So Brown’s challenges must be our own, because the greatest American value is because we cannot escape responsibility for that we are all in this together, one nation the society we create. I close with a state- indivisible, seeking Providence, committed ment from Lord Brougham, the nineteenth to human dignity and liberty and charged century Scottish lawyer and statesman, a with Brown’s promise of equal justice to charge that is more essential today than even all.

FOUNDATION REPORTS 22 PERCENT INCREASE

CTL Foundation President Lively tion Center in Philadelphia, the Mass Tort AWilson reports that returns from in- Manual, Mercer University, the National vestments, together with contributions Mock Trial and Moot Court Competitions from the Fellows of more than $180,000, and the International Judicial Academy. resulted in an overall increase in the Foundation’s assets and unpaid pledges of In fund-raising, the entire membership of 22 percent for the fiscal year ending June Alabama Fellows led the way by donating 30, 2004. one hour’s worth of time to the Foundation. Alabama was followed by identical pledges After grants were made, the Foundation from all Fellows in Delaware, Kentucky, ended the year with assets and unpaid New Jersey, Oklahoma, Pennsylvania and pledges of $1,585,000. New Mexico. Grants were made to the National College of Rotating off the board were Andrew Coats, District Attorneys, National Criminal De- Tom Deacy and Gene Lafitte and coming on fense College, School of Law at the Univer- are Frank Jones, Warren Lightfoot and sity of Missouri at Columbia, National Jerry Graham. Children’s Law Network, National Constitu-

FELLOWS IN PRINT

Fellow David Boies of New York, New York Yankees v. Major League Baseball to Bush is the author of Courting Justice: From NY v. Gore.” 416 pp. Miramax Books. THE BULLETIN Page 37 “CLOSING ARGUMENT”: A SON’S TRIBUTE

By: Matthew James Miller Dad also showed me how uring his last few weeks of life, one of to work hard. the nurses asked Dad what he did for a D Dad worked living. Dad sat up in bed and with a twinkle most days of in his eye said, “I was a trial lawyer.” My Dad ILLER the week and was a real life Atticus Finch, a trial lawyer often nights. who loved the courtroom and the law second Despite a S. M only to his family. To him the law repre- grueling sched- ED sented the best about people: honesty, T ule, he came achievement and fundamental fairness. I saw home for dinner this through the eyes of a wide-eyed boy. with us every Dad taught me about honesty when he told single night. me about a client he kicked out of his office More impres- because the client lied to him. “But don’t sively, he never clients pay you money?” I asked, incredulous. missed a single event in which my brother or I were involved—a record which can be Dad taught me about achievement when he equaled but never broken. Frequently he returned from induction into the American arrived at a basketball game still in his vest College of Trial Lawyers. Dad aspired to this and tie. At those times, I knew I had the from the day he began to practice and con- best of both worlds, a dad who loved me and sidered it the highest honor a lawyer could a hero to admire. receive. He showed me a Burberry trench coat he bought during the trip. “I have Despite the intensely hard work, Dad always wanted one of these,” he told me. taught me about the important of loving what you do. I walked to his office late one “So why didn’t you just buy one?” I asked. night to get a ride home. As we walked into “Son, rewards come with hard work,” he told me. the cool night air, he put his arm on my shoulder and said, “Son, you might really I learned about fundamental fairness when I like this some day.” I never heard him watched Dad represent a board of directors for complain about his job and grew up believ- a farmers’ cooperative against a large insur- ing there could be no higher aspiration than ance company represented by a formidable big to be a trial lawyer. After he retired, Dad city law firm. The case was nearly hopeless once said, “I will never quite get over miss- but Dad fought like it was his most important ing the practice of law.” one. “They just want to know somebody is standing up to fight for them,” he told me. It Now the old trial lawyer has finally rested was what he loved best about the law. his case, but not before leaving a legacy of love for his family and deep passion for the I learned about integrity when Dad left the practice of law. firm he helped start twenty-five years earlier because the firm was treating one of the partners unfairly. I learned about courage [MATT MILLER, AN FBI SPECIAL AGENT, RE- when he started over again. “The most impor- CEIVED HIS J.D. FROM INDIANA UNIVERSITY IN tant thing you have as a lawyer and as a 1992. HE WROTE THIS TRIBUTE ABOUT HIS FA- person is your reputation,” he told me. Leav- THER, TED S. MILLER, FACTL, WHO DIED ON ing was the right thing to do and he never NOVEMBER 21.] looked back. Page 38 THE BULLETIN AVERAGE NOMINEE AGE, LEVEL OF EXPERIENCE REMAINS STEADY

he 130 nominees submitted to the Board of Regents at its Fall meeting reflected no Tsignificant change in the profile of candidates from previous meetings. The average nominee was slightly in excess of fifty-four years old and had been licensed to practice for a little over twenty-seven years. Despite the College’s fifteen-year threshold eligibility level, only eight nominees had prac- ticed twenty years or less and only six were forty-five years or less in age. The overall statis- tics were:

YEARS NUMBER NUMBER OF PRACTICE OF NOMINEES AGE OF NOMINEES

15-20 8 40-45 6 21-25 32 45-50 26 26-30 58 51-55 49 31-35 19 56-60 30 36-40 11 61-65 18 Over 40 2 Over 65 1

COLLEGE ELECTS NEW LEADERS

t its reorganization meeting on October These four and Immediate Past President A23, 2004, the Board of Regents elected DAVID W. SCOTT, Q.C. will constitute the the following to serve as officers for the Executive Committee. coming year: At the annual meeting of the Fellows, the following were elected to four-year terms as Regents: President, JAMES W. MORRIS, III, Rich- mond, Virginia ROBERT W. TARUN, Chicago, Illinois–Illi- nois, Indiana, Wisconsin President-elect, MICHAEL A. COOPER, New York, New York JOHN H. TUCKER, Tulsa, Oklahoma–Colo- rado, Kansas, New Mexico, Oklahoma, Secretary, MIKEL L. STOUT, Wichita, Kansas Utah, Wyoming Treasurer, DAVID J. BECK, Houston, Texas THE BULLETIN Page 39 THE 2004 ANGLO-AMERICAN LEGAL EXCHANGE

ANGLO-AMERICAN EXCHANGE DELEGATES AND SPOUSES BEFORE WADDESDON, THE COUNTRY HOME GIVEN BY LORD JACOB ROTHSCHILD TO THE NATIONAL TRUST

By: Michael A. Cooper Reece Tacha of the Court of Appeals for the Tenth Circuit, District Judge Martin ontinuing a tradition that dates back L.C. Feldman of the Northern District of roughly three decades, the College C Louisiana and Justice Randy Holland of sponsored an Anglo-American Legal Ex- the Delaware Supreme Court. The law- change from September 12 through Septem- yer delegates, as has been customary, ber 15. The Exchange participants were were all College Fellows, but this may United States judges and lawyers and their be the first Exchange in which a major- British counterparts. The discussions were ity of the Fellows were not present or held in London and Oxford. The British past officers or members of the Board of hosts planned the program. We will have Regents. I was asked by President David the privilege and delight of reciprocating Scott to lead the lawyer cohort and was when they visit us next September. joined by Past President Charles The United States team was led by Renfrew, Fletcher Yarborough of Dallas, Justices Antonin Scalia and Stephen Breyer of the United State Supreme (Continued on page 40) Court and included Chief Judge Deanell Page 40 THE BULLETIN

ANGLO-AMERICAN EXCHANGE Is there any point to the Exchanges beyond (Continued from page 39) providing a delightful three-day visit for the fortunate participants? I have not the slightest doubt that the Exchanges are Chilton Varner of Atlanta, Alan Sullivan valuable, even if their value cannot be of Salt Lake City and Seth Waxman of fully quantified. Washington, D.C. The British team consisted of Lords Scott of Foscote and Lord Woolf, whose study a decade ago Rodgers of Earlsferry, both of whom are when he was Master of the Rolls led to Lords of Appeal in Ordinary ( or “Law sweeping reforms in the British civil Lords”), Lady Justice Arden and Lord justice system, is reported to have said Justice Dyson of the Court of Appeals, that he was significantly influenced by Mrs. Justice Hallett and Mr. Justice what he learned during an Exchange, and Richards of the High Court, Joanna there are in fact many parallels to our Korner, Q.C., Professor Jeffrey Jowell, Federal Rules of Civil Procedure in the Q.C. and Charles Plant. British Civil Procedure Act of 1998. In like manner, as I prepared a paper dis- The British team selected four broad cussing the expert evidence regimes in the topics for discussion; they were varied in United States and Great Britain, I noted subject matter, but had the common some procedures in the latter that we thread of being relevant to current and would do well to consider incorporating in recent developments in the British judi- the Federal Rules. The cross-fertilization cial system. The topics were (i) the role of facilitated by the Exchanges goes back the Supreme Court (there are proposals in many years. The American Inns of Court Parliament to transform the Appellate movement can be traced to an earlier Committee of the House of Lords into a Exchange. self-standing Supreme Court), (ii) Global- law-the impact of foreign law and interna- Sponsorship of the Exchanges has also tional tribunals, (iii) Civil litigation- cemented the relationship between the access to justice, costs and related mat- College and our Supreme Court and ters, and (iv) Court procedures in civil enhanced the stature of the College here cases-use of experts and other matters. and abroad. When the British partici- Both sets of delegates prepared papers on pants spoke of the College during our these topics, varying in length and schol- discussions and after hours, they did so arship, which furnished a framework for with a respect that clearly was genuinely our discussions. The discussions, each of felt. which lasted about three hours, were ( Michael A. Cooper is the President- thoughtful, candid and spirited; rank was Elect of the College) set aside, and collegiality prevailed throughout. I do not mean to suggest that we worked without respite. We visited the President’s House and Library at Magdalen College, Oxford, dined with Lord and Lady Rothschild at Waddeston Manor, the lovely country home given by their family to the National Trust, and had our farewell dinner at the residence of the United States Ambassador to the Court of St. James. THE BULLETIN Page 41 AWARDS, HONORS, AND ELECTIONS

JAY GOLDBERG, New York City, is one of history of this award, this is the first time a fifteen trial lawyers selected for outstand- Connecticut lawyer has been honored. ing opening or closing arguments in a new book, “In the Interest of Justice: Great Opening and Closing Arguments of the Last PETER KORN of McDonough, Korn & 100 Years” by Joel Seidemann. Goldberg Eichhorn, P. C., Springfield, New Jersey, has represented such clients as Donald has received the Trial Bar Award from the Trump, Johnny Cash, Bono, P. Diddy, The Trial Attorneys of New Jersey given to trial Rolling Stones, Willie Nelson, Miles Davis, lawyers who have distinguished themselves Dr. Armand Hammer and the New York in the cause of justice. Daily News. GORDON R. MAURICE B. GRAHAM, a principal in the St. BROOM, senior Louis firm Gray, Ritter & Graham, P.C., partner with has been honored with The Foundation Burroughs,

Award, presented by the St. Louis Bar Hepler, Broom, ROOM Foundation. The award is given each year MacDonald, to a member of the legal profession who Hebrank & True, R. B exhibits exemplary charitable spirit and LLP, service to the community and profession. Edwardsville, ORDON

Illinois, was G elected president EARL CHERNIAK, Q.C. of Lerners, LLP, of the Association Toronto, has received the Ontario Bar of Defense Trial Association’s first award for excellence in Attorneys at its 2004 annual meeting in civil litigation. Dublin, Ireland.

CHRIS G. PALIARE of Paliare Roland WILLIAM S. REYNOLDS, senior partner at Rosenberg Rothstein, LLP, Toronto, was O’Shea, Reynolds & Cummings, Buffalo, one of five recipients of the 2004 Law Soci- New York, was honored as the 2004 De- ety Medal. The Law Society Medal was fense Trial Lawyer of the Year by the West- struck in 1985 as an honor to be awarded ern New York Defense Trial Lawyers. by the Law Society of Upper Canada, the governing body of the lawyers of Ontario, Canada, to members who have made a JAMES R. WYRSCH of Wyrsch Hobbs & significant contribution to the profession. Mirakian, P.C., has received the Kansas City Metropolitan Bar Association Lifetime Achievement Award. It has been presented JAMES F. STAPLETON of Day, Berry & only twenty-four times since its creation in Howard, LLP, Hartford, Connecticut, has 1960. Previous winners include U.S. Sena- received the Whitney North Seymour tor Thomas F. Eagleton and U.S. Supreme Award, recognizing outstanding public service by a private practitioner, from the Federal Bar Council. In the nineteen year (Continued on page 42) Page 42 THE BULLETIN

AWARDS, HONORS, ELECTIONS LARRY A. (Continued from page 41) BRISBEE, senior partner with Brisbee & Stock- Court Justices Harry Blackmun and ton LLC, RISBEE Clarence Thomas. Hillsboro, Or-

egon, has been A. B honored as the

DONNA D. MELBY of the Los Angeles office of first recipient of ARRY Sonnenschein Nath & Rosenthal LLP, has the Washington L become the first woman to be elected presi- County Bar dent of the American Board of Trial Advo- Association cates. Founded in 1958, ABOTA has more Professionalism than 6,000 lawyers and judges as members Award. spread among ninety-four chapters in all fifty states and the District of Columbia. A scholarship has been established in the name of HAROLD WARNOCK and his wife at ROBERT W. SPEARMAN, partner in the Ra- the University of Arizona School of Law. leigh, North Carolina office of Parker, Poe, Warnock died in 1997. He and his son, John Adams & Bernstein, has been honored by Warnock, published Effective Writing: A the North Carolina Justice Center for his Handbook with Stories for Lawyers in 2003. decade-long battle on behalf of low wealth school districts. Fellow CAROLYN F. SHORT of Reed Smith LLP, Philadelphia, has been appointed E. OSBORNE AYSCUE, JR. (Past President of general counsel to the Judiciary Committee the College in 1998-99), Helms, Mulliss & of the U.S. Senate by committee chair Wicker, PLLC, Charlotte, North Carolina, Senator Arlen Specter. has received the Distinguished Alumni Award from the University of North Caro- lina at Chapel Hill School of Law.

AWARD WINNER HONORED (L-R) PRESIDENT JIMMY MORRIS, BRYAN STEVENSON, TRUDIE ROSS HAMILTON AND PAST PRESIDENT DAVID SCOTT THE BULLETIN Page 43 OPINION: SAY NO TO MANDATORY SANCTIONS

y a vote of 229-174, the US House of the Rule. The result was a Rule that gave BRepresentatives recently passed H.R. judges reasonable discretion to deal with 4571, the “Lawsuit Abuse Reduction Act abuses but which did not require them to of 2004.” Among other things, the Act invest their limited resources in manda- would re-impose mandatory sanctions tory review of virtually every failed under Rule 11 of the Federal Rules of pleading. I have had some difficulty with Civil Procedure. proper attribution of the following quote, but all rational lawyers should agree And while the contemporary wisdom is with it: “A mandatory sanctions rule is that the Bill is dead on arrival at the one good judges do not need and bad Senate (“House Votes to Bring Bite Back judges (if there are any of those) should to Rule 11,” The National Law Journal not have.” September 27, 2004), that wisdom was pronounced before the election increased This Bill would not only return us to the the Republican majority. Don’t get me dark days of mandatory sanctions with- wrong—Republicans are fine folks, some out safe harbor; it has other insidious of my best friends are Republicans. But details which are highly troubling. some Republicans sometimes align them- The Bill would impose mandatory sanc- selves as opposed to what they pejora- tions for document destruction; no such tively call (gasp) “trial lawyers” and this provision is necessary for judges to deal Bill isn’t over until the fat lady sings. We with legitimate abuses, but mandatory need to speak to our Senators and make sanctions will lead to inevitable unjust sure they know that this is a terrible results. Just as it is impossible to keep Bill, a terrible idea. insect parts out of chocolate (so we pub- When mandatory Rule 11 sanctions were lish federal regulations to define how adopted with the 1983 amendments, many parts we will tolerate), in the age sanction motions quickly became a cot- of electronic data there will invariably be tage industry that swamped the courts lost and altered information. Judges need and made litigation distinctly more discretion, not arbitrary, rigid rules, to costly and contentious. Greg Joseph has deal with our constantly changing reported, in his treatise, Sanctions: The present and future. Federal Law of Litigation Abuse, that The Bill would impose itself upon State more than 7,000 Rule 11 decisions were court proceedings that affect interstate reported in the 10 years following the commerce-which would be virtually all 1983 amendments—but that was merely state proceedings. reported decisions, and an unscientific review of five districts suggests that This Bill flies in the face of the Rules there may have been 15 actual cases for Enabling Act approach to amending rules every one reported. (See p. 14, n. 9.) of procedure. Congress may from time to time chafe at the slow process of rules The College was instrumental in getting amendment; but that process, which Rule 11 amended in 1993 to eliminate draws on the expertise and reflection of mandatory sanctions; the Federal Civil lawyers, judges, and Congress itself, is Procedure Committee (with the Executive the best we have devised so far—cer- Committee’s endorsement) recommended that “shall” be changed to “may” and that a “safe harbor” provision be inserted into (Continued on page 44) Page 44 THE BULLETIN

OPINION: NO TO SANCTIONS to reduce lawsuit abuse, and it is hard to (Continued from page 43) vote against such an emotional title. But this Bill is itself an abuse and we cannot take it on faith that the Senate will get it tainly better than this Bill, which ig- right. I intend to, as I hope other Fellows nores proven history and circumvents will as well, contact my Senator to voice input from the very people who must live opposition to H.R. 4571. with and enforce the proposed rule. Robert L. Byman, FACTL (Mr.Byman is Frankly, it is difficult to understand how a partner in the Chicago, Illinois firm of such a terrible collection of ideas gar- Jenner & Block) nered such a large majority in the House of Representatives. It is politically correct

ADJUNCT STATE COMMITTEE ASSUMES EXPANDED ROLE

ecognizing that the nature of trial in the state or province where he or she Rpractice has changed and that many maintains his or her principal office. lawyers with national practices who ought The nomination comes to the Board of to be considered for Fellowship have been Regents identified as a nomination of the overlooked, the activity of the Adjunct State Adjunct State Committee, but the Regent’s Committee has been expanded. follow-up investigation and the presenta- Such lawyers, though known by the Fellows tion of the nominee’s credentials are done with whom they try cases around the country by the Regent in whose region the nominee and the judges before whom they try them, maintains his or her principal office. frequently are less well known by the Fellows This process insures that the Board of and judges in their own states or provinces. Regents has before it information about the Sensing that the College is diminished by nominee’s professional reputation and the omission of such lawyers, and that their accomplishments among those with whom inclusion as Fellows would enhance the he or she has dealt around the country, as College, the Adjunct State Committee has well the information the Board normally made an active effort to identify and bring has from a nominee’s state or province. their nominations forward for consider- Six nominees whose nominations were ation. initiated by the Adjunct State Committee The Committee undertakes to collect infor- are among those approved by the Board of mation about potential candidates, includ- Regents at its fall 2004 meeting and have ing procuring case lists and interviewing been invited to Fellowship. lawyers and judges who have dealt with The identity of the chair and the members them. That information is then turned over of this committee are listed in the College to the appropriate state or province com- roster. The committee welcomes sugges- mittee for its further investigation. If, as a tions of potential nominees who appear to result of this process, the nomination is have been overlooked because of the geo- sent forward to the national office, the graphical dispersion of their practices. nominee is included on the poll of Fellows THE BULLETIN Page 45 COLLEGE HONORS RETIRING CHAIRS

he following distinguished Chairs have Townsend, MONTANA (Missoula); James M. Tbeen sent a plaque in recognition of Bausch, NEBRASKA (Lincoln); James R. their services: Olson, NEVADA (Las Vegas); Cathy J. Green, NEW HAMPSHIRE (Manchester); David M. STANDING COMMITTEES—Sylvia H. Walbolt, Gouldin, NEW YORK (Binghamton); Alan Tampa, Florida, ACCESS TO JUSTICE AND Levine, NEW YORK (New York); James T. LEGAL SERVICES; Richard P. Campbell, Bos- Williams, Jr., NORTH CAROLINA (Greensboro); ton, Massachusetts, ADJUNCT STATE; John S. Jane C. Voglewede, NORTH DAKOTA (Fargo); Siffert, New York, New York, ADMISSION TO Paul T. Fortino, OREGON (Portland); Chris- FELLOWSHIP; James D. Zirin, New York, New tine L. Donohue, PENNSYLVANIA (Pittsburgh); York, ALTERNATIVES FOR DISPUTE RESOLUTION; Alvaro R. Calderon, Jr., PUERTO RICO (San Michel Decary, Q.C., Montreal, Quebec, Juan); John W. Kershaw, RHODE ISLAND CANADIAN COMPETITIONS; Alan T. Radnor, (Providence); Thomas G. Fritz, SOUTH DA- Columbus, Ohio, LEGAL ETHICS; Griffiin B. KOTA (Rapid City); George W. Bramblett, Bell, Atlanta, Georgia, LEWIS F. POWELL, JR. Jr., TEXAS (Dallas); Francis M. Wikstrom, LECTURES; Harry L. Shorstein, Jacksonville, UTAH (Salt Lake City); Karen McAndrew, Florida, NATIONAL COLLEGE OF DISTRICT VERMONT (Burlington); Michael W. Smith, ATTORNEYS; Paul C. Saunders, New York, VIRGINIA, (Richmond); Wayne E. Babler, Jr., New York, NATIONAL MOOT COURT COMPETI- WISCONSIN (Milwaukee); J. Kent Rutledge, TION; James L. Magee, Seattle, Washington, WYOMING (Cheyenne); J. Patrick Peacock, Q. PROFESSIONALISM; John H. Tucker, Tulsa, C., ALBERTA (Calgary); George W. Oklahoma, SAMUEL E. GATES LITIGATION MacDonald, Q.C., ATLANTIC PROVINCES AWARD; J. Donald Cowan, Jr., Greensboro, (Halifax, Nova Scotia); E. William Olson, North Carolina, SPECIAL PROBLEMS IN THE Q.C., MANITOBA/SASKATCHEWAN, (Winnipeg, ADMINISTRATION OF JUSTICE; David L. Grove, Manitoba); Chris G. Paliare, ONTARIO Philadelphia, Pennsylvania, TECHNOLOGY IN (Toronto); Lynne D. Kassie, QUEBEC THE COURTS. (Montreal.) STATE AND PROVINCE COMMITTEES—Richard H. Gill, ALABAMA (Montgomery); Robert A. Goodin, CALIFORNIA (San Francisco); Joseph C. Jaudon, Jr., COLORADO (Denver); Richard E. Poole, DELAWARE (Wilmington); John M. Gray, DISTRICT OF COLUMBIA (Washington); Paul W. Painter, Jr., GEORGIA (Savannah); Sidney K. Ayabe, HAWAII (Honolulu); J. Walter Sinclair, IDAHO (Boise): James P. Hayes, IOWA (Iowa City); Gary J. Clendening, INDIANA (Bloomington); Jerry R. Palmer, KANSAS (Topeka); Herschel E. Richard, Jr., LOUISIANA (Shreveport); Barry K. Mills, MAINE (Ellsworth); Kenneth Armstrong, MARYLAND (Rockville); William A. Sankbeil, MICHIGAN (Detroit); Steven J. L-R, OLIVER HILL, JR., DAVID Kirsch, MINNESOTA (St. Paul); Lucien C. SCOTT, AND OLIVER HILL Gwin, Jr., MISSISSIPPI (Natchez); James J. AT ST. LOUIS MEETING Virtel, MISSOURI (St. Louis); Karen S. Page 46 THE BULLETIN ONE HUNDRED ELEVEN FELLOWS INDUCTED AT ST. LOUIS MEETING

ALABAMA: M. Christian King, Birming- Oak, James N. Martin, Mount Clemens, ham, Harvey B. Morris, Huntsville, Kenneth M. Mogill, Lake Orion, Daniel J. Robert D. Segall, Montgomery, Randal Scully, Jr., Detroit, Douglas C. Smith, H. Sellers, Birmingham ARIZONA: James Bay City, James L. Wernstrom, Grand R. Broening, Phoenix, D. Reid Garrey, Rapids MINNESOTA: Charles B. Bateman, Scottsdale ARKANSAS: Bill W. Bristow, Duluth, Craig D. Diviney, Minneapolis, Jonesboro NORTHERN CALIFORNIA: Mario Jim Kaster, Minneapolis, John D. Kelly, L. Baltramo, Jr., Fresno SOUTHERN CALI- Duluth, Timothy D. Kelly, Daniel R. FORNIA: Marilyn E. Bednarski, Pasadena Shulman, Douglas J. Williams, Minne- COLORADO: Gary Lozow, Denver DISTRICT apolis MISSISSIPPI: Gaines S. Dyer, OF COLUMBIA: William D. Coston, Richard Greenville, R. David Kaufman, Jackson L. Cys, W. Neil Eggleston, James F. MONTANA: Carey E. Matovich, Billings Murphy, Washington FLORIDA: Alan NEBRASKA: Patrick G. Vipond, Omaha Chipperfield, Jacksonville GEORGIA: NEW HAMPSHIRE: James Q. Shirley, Wade K. Copeland, Atlanta, Gerald M. Manchester NEW MEXICO: Esteban A. Edenfield, Statesboro, Terry L. Readdick, Aguilar, Douglas A. Baker, Albuquerque Brunswick, Sally Quillian Yates, Atlanta DOWNSTATE NEW YORK: Celia Goldwag IDAHO: Paul T. Clark, Lewiston, Trudy Barenholtz, Barry A. Bohrer, Austin V. Hanson Fouser, Boise, James D. LaRue, Campriello, Evan R. Chesler, Peter J. Boise, Steven K. Tolman, Twin Falls Driscoll, Jeh Charles Johnson Debra L. ILLINOIS: Dan L. Boho, Matthew J. Egan, Raskin, David B. Tulchin, New York David T. Pritikin, Ronald S. Safer, Chi- UPSTATE NEW YORK: Catherine A. Gale, cago INDIANA: J. Lee McNeely, Fayetteville, John C. Herbert, Rochester, Shelbyville IOWA: Marion L. Beatty, Richard T. Sullivan, Buffalo NORTH Decorah, Greg A. Egbers, Davenport, R. CAROLINA: Catharine Biggs Arrowood, Jeffrey Lewis, Des Moines, Steven Raleigh, Peter S. Gilchrist III, Charlotte, Scharnberg, Des Moines, Rand W. Wonio, Mark W. Merritt, Charlotte, Keith W. Davenport KANSAS: Thomas J. Bath, Jr., Vaughan, Winston-Salem NORTH DA- Mark D. Hinderks, Overland Park KEN- KOTA: Ronald H. McLean, Fargo OHIO: TUCKY: Stephen F. Schuster, Louisville Stephen C. Fitch, Columbus, J. Michael LOUISIANA: Ronald E. Corkern, Jr., Murray, Cleveland OKLAHOMA: Joseph R. Natchitoches, S. Gene Fendler, New Farris, Larry A. Tawwater, Oklahoma Orleans, John Hoychick, Jr., Rayville, City OREGON: David K. Miller, Gregory R. Michael A. McGlone, New Orleans Mowe, Portland PENNSYLVANIA: Thomas MAINE: Mark G. Lavoie, Portland MARY- E. Birsic, Pittsburgh, Patricia L. Dodge, LAND: Paul B. DeWolfe, Rockville, Rich- Pittsburgh, Arthur T. Donato, Jr., Media, ard M. Karceski, Towson MASSACHUSETTS: Keith R. Dutill, Malvern, Christopher C. James M. Campbell, Boston, Robert A. Fallon, Jr., Philadelphia, Charles B. Curley, Jr., Boston, Michael S. Hussey, Gibbons, Pittsburgh, Arthur L. Worcester, Edward J. McDonough, Jr., Schwarzwaelder, Pittsburgh RHODE Springfield, Thomas E. Peisch, Boston MICHIGAN: Elizabeth Gleicher, Royal (Continued on page 47) THE BULLETIN Page 47

ELLOWS NDUCTED AT EETING F I M Seattle WEST VIRGINIA: Richard L. Dou- (Continued from page 46) glas, Martinsburg, Scott S. Segal, Charleston MANITOBA/SASKATCHEWAN: A. Blair Graham, Q.C., Winnipeg ONTARIO: ISLAND: C. Leonard O’Brien, Providence T. David Little, London, William M. SOUTH CAROLINA: Carol B. Ervin, Trudell, Toronto. Charleston, Mason A. Goldsmith, Greenville SOUTH DAKOTA: Steven W. Sanford, Sioux Falls, Nancy J. Turbak, Sally Quillian Yates, Assistant United Watertown TEXAS: J. Mark Mann, States Attorney, Atlanta, Georgia, gave Henderson VIRGINIA: William O. P. the response. Snead, III, Fairfax WASHINGTON: Keith L. Kessler, Hoquiam, Jeffery P. Robinson,

NEW INDUCTEES AT THE 2004 ANNUAL MEETING IN ST. LOUIS

FELLOWS TO THE BENCH

he College is pleased to announce the JOHN V. DENSON, Circuit Judge, Lee Tfollowing judicial appointments of County, Alabama. Fellows: ROBERT S. SMITH, New York Court of Ap- peals, Albany, New York. RICHARD A. FRYE, state court trial judge, Franklin County Common Pleas Court, ROGER T. CLARK, Circuit Judge, Gulfport, Columbus, Ohio. Mississippi. PRSRT STANDARD The Bulletin U.S. POSTAGE PAID of the SUNDANCE PRESS American College of Trial Lawyers 85719 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612

STATEMENT OF PURPOSE The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and those whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years’ experience before they can be considered for Fellowship. Member- ship in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. “In this select circle, we find pleasure and charm in the illustrious company of our contemporaries and take the keenest delight in exalting our friendships.” —Hon. Emil Gumpert, Chancellor-Founder, ACTL