ISSUE 79 FALL 2015 MICHAEL W. SMITH 66TH PRESIDENT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS Ellen Bain Smith and Mike Smith in Manakin-Sabot, Virginia American College of Trial Lawyers JOURNAL Chancellor-Founder Hon. Emil Gumpert (1895-1982) FEATURES OFFICERS Francis M. Wikstrom President President’s Profile: Michael W. Smith .........................................................3 Michael W. Smith President-Elect Bartholomew J. Dalton Treasurer Memorial Tribute to a Past President: Leon Silverman .................................7 Samuel H. Franklin Secretary Robert L. Byman Immediate Past President Former Chief Judge Receives Leon Silverman Award ................................ 13 BOARD OF REGENTS Rodney Acker Elizabeth N. Mulvey Dallas, Texas Boston, Massachusetts Ritchie E. Berger William J. Murphy Burlington, Vermont Baltimore, Maryland COLLEGE MEETINGS Robert L. Byman James T. Murray, Jr. Chicago, Illinois Milwaukee, Wisconsin Region 12: New England Regional Meeting .............................................. 21 Bartholomew J. Dalton Michael L. O’Donnell Region 13: Third Circuit Regional Meeting ............................................... 25 Wilmington, Delaware Denver, Colorado James M. Danielson C. Rufus Pennington, III Wenatchee, Washington Jacksonville Beach, Florida Samuel H. Franklin William H. Sandweg III Birmingham, Alabama Phoenix, Arizona FELLOWS IN ACTION William T. Hangley Stephen G. Schwarz Philadelphia, Pennsylvania Rochester, New York Pennsylvania Fellows Examine 1911 Lynching Case .................................. 12 Susan J. Harriman Michael W. Smith San Francisco, California Richmond, Virginia Texas Fellows Sponsor Trial Academy ...................................................... 16 Michael F. Kinney Kathleen M. Trafford Omaha, Nebraska Columbus, Ohio Arizona Fellows Hold CLE ........................................................................ 24 W. Francis Marion, Jr. Francis M. Wikstrom College Extends Pro Bono Work .............................................................. 30 Greenville, South Carolina Salt Lake City, Utah EDITORIAL BOARD ANNOUNCEMENTS Andrew M. Coats (Editor) Oklahoma City, Oklahoma Stephen M. Grant (Editor) Toronto, Ontario CONTENTS Elizabeth K. Ainslie Philadelphia, Pennsylvania Correspondence to the Editors ................................................................ 17 Catharine Biggs Arrowood Raleigh, North Carolina Lisa G. Arrowood Boston, Massachusetts 2016 Spring Meeting Save the Date ........................................................ 20 Carol Elder Bruce Washington, District of Columbia Richard C. Cahn Huntington, New York Errata/Correction .................................................................................... 24 Lynne D. Kassie, Ad. E. Montréal, Québec Timothy D. Kelly Minneapolis, Minnesota Deposition Training Program Available ..................................................... 28 David N. Kitner Dallas, Texas Kevin J. Kuhn Denver, Colorado Foundation Issues New Grants ................................................................ 29 Paul S. Meyer Costa Mesa, California Robert F. Parker Merrillville, Indiana Foundation Supports Civil Justice Summit ............................................... 29 Paul Mark Sandler Baltimore, Maryland Chilton Davis Varner, Atlanta, Georgia G. Gray Wilson Winston-Salem, North Carolina E. Osborne Ayscue, Jr. (Editor Emeritus) Charlotte, North Carolina IN EVERY ISSUE Robert L. Byman (Regent Liaison) Chicago, Illinois MANAGING EDITOR Awards and Honors ...................................................................................6 Eliza Gano EDITOR Fellows to the Bench .............................................................................. 24 Amy Mrugalski For comments, inquiries, and submissions, In Memoriam .......................................................................................... 31 Rlease email the National OfƂce at editor"actlcom Liz Doten Design Director Calendar ................................................................................................ 46 Ben Majors Photographer, EventWorks Dennis J. Maggi CAE, Executive Director American College of Trial Lawyers 19900 MacArthur Boulevard, Suite 530 Irvine, CA 92612 99521801 wwwactlcom Copyright ©2015 Please submit contributions or suIIestions to eFitor"actlcom Andy Coats and Stephen Grant It doesn’t really get easier, being a trial lawyer. We think Meanwhile, artist and international rights activist Ai that with age and experience, our ability to handle cases Weiwei, after what The New Yorker (July 29, 2015) called breezily becomes inevitable. Instead, the cases become a “strange purgatory,” was given back his passport, pos- more complex and sprawling. We are no less anxious or sibly allowing for his right to travel abroad. The curious on edge, ever more wanting to leave no stone unturned. part of all of this development is the same opaque man- And more often than not, the stakes are higher. ner in which his freedoms were taken in the first place— “arbitrarily, unannounced, with no formal proceedings… We might also think that over time we would become the very force that he has criticized for nearly a decade: more accepting of unjust or wrong results, despite our the rule of man over the rule of law.” best efforts. It’s rather the reverse. We feel the results more painfully as we are no longer in any awe of the There are cogent and self-evident reasons we zealously decision–maker(s) and have an even more finely honed defend and trumpet the rule of law, not the least of sense of what is just. It’s a truly bitter pill when right which is that as trial lawyers, we need not fear this type does not triumph. of capriciousness. The saving grace in all of this is that our justice sys- Events such as these also commend us to be even more tem allows for the chance, generally, for right to prevail, vigilant about ensuring access to justice. One com- often against the odds. This is not to say that a deep mentator, Theresa Amato (also in the Times, June 17, pocket sometimes trumps a deserving opponent but 2015) has a new theory about achieving this goal. She the chances of overcoming this imbalance are better in proposes “matching legal talent to human need,” by our justice system than elsewhere. More to the point, putting lawyers, especially public interest advocates if our courts adopt any or all of the Institute for the where they’re needed so as to narrow the “justice gap.” Advancement of the American Legal System (IAALS)/ She offers a number of concrete suggestions as to how College Task Force on Discovery and Civil Justice rec- we can achieve this, likely to be reflected in her forth- ommendations on civil justice reform, so much the coming book, Liberated Lawyering: How Lawyers Can better and faster for this to happen. Change the World. In the same way that Dr. Samantha Nutt at the College’s Spring Meeting in Key Biscayne If our justice system and our judges are society’s bul- encouraged giving a lawyer instead of a goat, any great- wark against arbitrariness and tyranny, trial lawyers are er contribution lawyers can not only make but be seen its guardians and standard-bearers, especially of indi- to make will only make for fascinating reading. It may vidual rights and freedoms. also go some way towards lessening our apparently poor public image. Recent world events bring this clearly into focus. The New York Times (July 11, 2015) reported that China For those in need of some intellectual and social rest has detained and denounced several lawyers from a and relaxation, you can put the College’s Annual Meet- firm specializing in “rights cases,” specifically those cas- ing into your agenda. It’s “our kinda town, Chicago is.” es challenging the oppressiveness of state power. The In the meantime, you can enjoy catching up on various alleged crimes include mobilizing aggrieved citizens regional and other College events and news with this and using aggressive courtroom tactics, thus disturb- fall issue of the Journal. ing the social order. Those suspected disappeared into police custody. Andy Coats/Stephen Grant FALL 2015 JOURNAL 2 PASSING ON THE JOY, OPPORTUNITY, FELLOWSHIP OF COLLEGE’S LEGACY A PROFILE OF MICHAEL W. SMITH A graceful home filled with family heirlooms located just west of Richmond in Manakin-Sabot, Virginia (Goochland County). Rolling hills. Hunt country. A kitchen overlooking a pasture with horses and a Wheaten Scottish Terrier, Rose, on constant patrol for critter invaders. This is what Mike and Ellen Bain Smith will be missing over the next year or so as they plunge into Mike’s new role as the sixty-sixth president of the American College of Trial Lawyers. 3 JOURNAL Mike will be the fourth lawyer from Virginia to serve Championship the prize, and a 1957 Chevrolet school in this role, following the late Honorable Lewis F. bus bringing the kids from the country into school was Powell, Jr., Associate Justice of the Supreme Court the transportation, with Mike receiving $30 per month (1969-70), the late R. Harvey Chappell, Jr. (1986- walking around money for doing the driving. 1987) and James W. Morris (2004-2005). In 1962, Mike attended and played football for Mike grew up in Beech Island, in Aiken County, South Presbyterian College in Clinton, South Carolina. Carolina. After the too early death of his mother, he After graduation, a history professor and friend was raised in the country by his maternal grandmother, encouraged him to consider law school at the known to all as “Hart.” The Goochland