ISSUE 96 | SUMMER | 2021 Lawyering in theageof Covid-19 American College of Trial Lawyers JOURNAL Chancellor-Founder Hon. Emil Gumpert contents (1895-1982) 02 04 05 OFFICERS Letter from the Editor Annual Meeting President’s The College RODNEY ACKER President Announcement Perspective Welcomes New MICHAEL L. O’DONNELL President-Elect Officers & Regents SUSAN J. HARRIMAN Treasurer WILLIAM J. MURPHY Secretary DOUGLAS R. YOUNG Immediate Past President MEETING RECAP BOARD OF REGENTS 09 15 19 25 RODNEY ACKER DAN S. FOLLUO CLE: The 25th Anniversary The Honorable Brian Brurud - Check 6 Scientific Collaboration in Dallas, Texas Tulsa, Oklahoma of the VMI Case: Mark E. Recktenwald – Access to The Fight Against Covid-19 PETER AKMAJIAN LARRY H. KRANTZ Remembering RBG Justice In the Age Of COVID Tucson, Arizona New York, New York SUSAN S. BREWER MARTIN F. MURPHY Morgantown, West Virginia Boston, Massachusetts JOE R. CALDWELL, JR. WILLIAM J. MURPHY Washington, D.C. Baltimore, Maryland 31 37 41 47 JOHN A. DAY MICHAEL L. O’DONNELL Brentwood, Tennessee Denver, Colorado The Importance of Dr. Patrick Connor — A Conversation With Never Out Of The Fight — Separate Opinions — Treating Panthers the Former President the Eddie Gallagher RICHARD H. DEANE, JR. LYN P. PRUITT Professor Melvin Urofsky of the United States Court Martial Atlanta, Georgia Little Rock, Arkansas MONA T. DUCKETT, Q.C. JEFFREY E. STONE Edmonton, Alberta Chicago, Illinois GREGORY M. LEDERER MICHAEL J. SHEPARD Cedar Rapids, Iowa San Francisco, California 53 59 65 67 Michele Bratcher Goodwin Defending the Skies — Heather Younger — Spring 2021 SANDRA A. FORBES CATHERINE RECKER — Quarantine: The Reach and General Victor Eugene Building Resistence Induction Ceremony Toronto, Ontario Philadelphia, Pennsylvania Limits of Government Action Renuart, Jr. SUSAN J. HARRIMAN DOUGLAS R. YOUNG San Francisco, California San Francisco, California EDITORIAL BOARD 79 Robert L. Byman (Editor) Chicago, Illinois Welcome To The College — Elizabeth K. Ainslie Philadelphia, Pennsylvania David Beck Lisa G. Arrowood Boston, Massachusetts Carol Elder Bruce Washington, District of Columbia Brian J. Gover Toronto, Ontario Christina M. Habas Denver, Colorado FEATURE ARTICLES David G. Hanrahan Boston, Massachusetts Lynne D. Kassie, Ad. E. Montréal, Québec David N. Kitner Dallas, Texas Kevin J. Kuhn Denver, Colorado 83 89 95 Carey E. Matovich Billings, Montana The Rise, Demise, and A Conversation With Discovering A Special Talent Lorna S. McClusky Memphis, Tennessee Potential Restoration of the Justice Rosalie Abella Through Pro Bono Clarence L. Pozza Detroit, Michigan Jeffersonian Electoral College Service To Others Paul Mark Sandler Baltimore, Maryland Stephen G. Schwarz Rochester, New York J. Walt Sinclair Boise, Idaho COLLEGE UPDATES Dennis R. Suplee Philadelphia, Pennsylvania Mark C. Surprenant New Orleans, Louisiana Chilton Davis Varner Atlanta, Georgia David J. Wachowich, Q.C. Calgary, Alberta 114 Sylvia H. Walbolt Tampa, Florida Fellows to the Bench E. Osborne Ayscue, Jr. (Editor Emeritus) Chapel Hill, North Carolina MANAGING EDITOR Sarah Stokes REGULAR FEATURES ASSOCIATE EDITOR Amy Mrugalski, CAE 99 103 107 109 For comments, inquiries, and submissions, Heroes Among Us— All In The Family — Heritage Profiles— New Pro Bono Fellow — please email the National Office at [email protected] John Hall Hon. Suzanne Cote and Maurice Graham David Barry Liz Doten Design Director Gerald Trembley Ben Majors Photographer, EventWorks Dennis J. Maggi, CAE, Executive Director American College of Trial Lawyers 1300 Dove Street, Suite 150 111 115 126 Newport Beach, California 92660 Foundation Update In Memoriam Calendar 949.752.1801 www.actl.com Copyright1 ©2021JOURNAL PLEASE SEND CONTRIBUTIONS OR SUGGESTIONS TO [email protected] IF YOU SET OUT TO FAIL, AND DO, HAVE YOU SUCCEEDED? Well, no. You have failed. It is no accomplishment to set and criminal defendant has to go to trial without much hope meet goals that make no sense. I reject the thought that you of success, because no viable plea deal is even offered, and can succeed by setting out not to. So do you. simply giving up is not an option. At those times, you still do not set out to fail. You are clear-eyed about the odds, but That’s why I love real trial lawyers. Have you ever met one you still give it your best; you set out to win. who set out to fail? No, of course you haven’t. Trial lawyers set out to win; it’s why we go to trial. Trial lawyers set out to win. We don’t always succeed, of course, but we always try. And when we don’t succeed, we Now, “win” is a fudgy term in the context of trial work. A brush ourselves off and get ready for the next time. Michael plaintiff is awarded five million dollars by the jury – a win for Jordan famously said (he didn’t say it first, but then, he’s Mi- the plaintiff, a loss for the defendant, right? Wait, tell me more. chael, so he gets credit) “It doesn’t matter how many times What if the defendant offered to settle before trial for ten mil- you fall; what matters is how many times you get up.” lion? The jury gave plaintiff only half of what she was offered; the defendant gets off paying five million less than it was pre- It’s late April as I compose this, and I have watched the live pared to pay. An unambiguous win for the “losing” side. coverage of the Derek Chauvin (George Floyd) trial and the resulting verdict. This trial makes me proud to be a trial In criminal trials there is only first place and second place, lawyer. The prosecutors were remarkable. And so was the and second place really sucks. But a guilty verdict can still defense. One side appeared throughout to have the best of it, be a defense win if on a lesser charge or if it leads to a better the best shot at success. But both sides, all of the lawyers set sentence than whatever plea deal was offered. Sometimes, a out to win, and all of them gave it their best. SUMMER 2021 JOURNAL 2 “The only real lawyers are trial lawyers, and trial lawyers try cases to juries.” — Clarence Darrow I’m not a psychiatrist, but I play one on this page. Why do who is interested not in what’s true but what he can convince trial lawyers try cases? I can’t speak for you, but after 50 years a jury is true.” The Congressman likely did not mean his of it, I know why I do. I do it because I’m insecure. I need comment as a compliment, but it does nicely sum up the to know whether I’m doing things right. I need validation. I essence of trial work. Success is not coming to the “Truth.” It need feedback. So I do trial work because it comes with real is, by ethically following the rules, convincing the jury that time, objective feedback. your side should win. Clarence Darrow said “The only real lawyers are trial law- That is what we set out to do. yers.” I have great respect for lawyers who don’t try cases; they do important, good work. But here’s the thing. You can If you set out to succeed, and do, you have succeeded. And practice law for fifty years, writing offering statements, re- if you set out to succeed, and don’t, you still have succeeded, viewing prospectuses, negotiating contracts, drafting estate so long as you gave it your best. plans, brokering mergers, all of that. You are a success be- cause no one has ever criticized your work. But the fact is ********** that you will not actually know whether any of the work you did was done right. You will simply know that no one has We have some of the best for you in this Issue. We say hello complained about it. You cannot know whether the work to sixty-one newly inducted Fellows; we bid adieu to thir- was right unless and until some dispute arises and it gets ty-six departed Fellows. We offer abridged recaps of the out- resolved in a trial. standing group of speakers – one of them a Former President of the United States – who presented at the Spring Meeting. When something gets tried, there is pretty much instant We spotlight two Justices of the Supreme Court of Canada feedback. The judge or jury rules. You know (subject to in separate articles – one our regular feature “All In The Col- appeal) whether your work was right. Trial lawyers are real lege Family” highlighting FACTLs Justice Suzanne Cote and lawyers because they find out, after every trial, whether they Gerald Tremblay, and a conversation with Justice Rosalie plied their craft right. Abella, the longest serving judge on the current Court. We unpack the Electoral College. And more. Rep. Bill Foster of Illinois, the only Ph.D. physicist in Con- gress, describes the difference between trial lawyers and sci- I hope we’ve succeeded in giving you a good read. It is, after entists: “Scientists want to know the evidence behind a state- all, what we set out to do. ment; they want reproducible tests and verifiable facts. There is a big difference in the thought process of a trial lawyer, Bob Byman 3 JOURNAL Both in-person and virtual options available. Choose your experience! Exceptional Speakers Induction Ceremony & Banquet CLE Evening Party at Navy Pier Room Rates Only $309 SEPT 30 2021 ANNUAL MEETING IN-PERSON: At the Fairmont Chicago Millennium Park, Chicago, IL to OCT 3 OR ONLINE: At a computer near you! Visit ACTL.com for details. SPRING 2021 JOURNAL 4 PRESIDENT’S PERSPECTIVE – RODNEY ACKER WHAT A YEAR IT HAS BEEN.