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American Bar Association

JUDICIAL DIVISION

RECORD Volume 20 Issue 3 Spring 2017

INSIDE Appellate Judges Conference.................10 Lawyers Conference....15 National Conference of the Administrative Law Judiciary.............19 National Conference of Federal Trial Judges........................21 National Conference of Specialized Court Judges..............24 National Conference of State Trial Judges........................29

CHAIR’S COLUMN

By Col. Linda Strite Murnane, USAF, (Ret.), Leidschendam, NL

I

f you did not have the opportunity to attend the ABA’s Midyear Meeting in Miami, Florida, I hope you will have taken the time to read the comments of Linda Klein, president of the ABA, in defense of a fair and independent judiciary. Her comments can be found online at this link: http://www.americanbar. org/news/abanews/aba-news-archives/2017/02/ aba_midyear_meeting.html For those whose friends ask why you belong to the ABA and to the Judicial Division (JD), it is the collective strength of the 400,000 members supporting a fair and independent judiciary to which you can point and ask if they share the commitment you have to ensure that the third branch of government, the judiciary, will remain the branch committed to protecting the people from an overreaching executive or legislative branch of government.

That is how the U.S. Constitution was designed to work and it requires strength in purpose to ensure it works as intended.

The first week of March, the Judicial Outreach Network launched the first Judicial Outreach Week, echoing the message of President Klein and reaching out to the communities to stress the importance of a fair and independent judiciary. This will be an annual event, and the work of the team, led by Judge Russ Carparelli, Mark O’Halloran, and Richard Nunes, has been outstanding.

Since the last edition of the JD Record, in addition to this stirring defense of a fair and independent judiciary expressed by President Klein, the JD was engaged on so many different projects it is hard to fit them all in a short column. While at the Midyear Meeting, the Standing Committee on Diversity in the Judiciary (SCDJ) led a community outreach program at the Alonzo and Tracy Mourning High School, presenting a civics curriculum focused on the Bill of Rights. The SCDJ also held an outstanding forum at St. Thomas University School of Law discussing the potential impact of a proposed resolution then-pending before the House of Delegates that would have shortened the reporting time on bar passage rates from five to two years. The focus of the presentation was on the potential impacts this might have on the diversity goals of law schools across the nation.

More than 70 students participated in the joint Minority Judicial Clerkship Program presented by the Council on Racial and Ethnic Diversity—Pipeline Council and the JD. Outstanding members of the Division from every conference spent many hours assisting students in this exercise designed to acquaint them with the mechanics and relationship a judge has with their law clerk.

Two outstanding Continuing Legal Education (CLE) programs were presented— by the Lawyers Conference (LC) and the Tribal Courts Council. The LC program, “The Presidential Nomination Process and the Steps to Confirmation—A View Continued on page 2

JUDICIAL DIVISION COUNCIL 2016-2017 CHAIR Col. Linda Strite Murnane Leidschendam, NL CHAIR-ELECT Hon. Ann Breen-Greco Chicago, IL VICE-CHAIR Hon. Toni E. Clarke Upper Marlboro, MD IMMEDIATE PAST CHAIR Michael G. Bergmann Chicago, IL LIAISON TO THE ABA BOARD OF GOVERNORS Hon. Ramona G. See Torrance, CA COUNCIL Hon. Frank J. Bailey Boston, MA Christopher G. Browning, Jr. Raleigh, NC Hon. Mary A. Celeste Denver, CO Hon. Cheryl D. Cesario Chicago, IL Hon. Catharina Haynes Dallas, TX Hon. Christina S. Kalavritinos Bethesda, MD Hon. John D. Minton, Jr. Frankfort, KY Wm. T. (Bill) Robinson, III Florence, KY R. Jonathan Shirts Moscow, ID Lance Phillip Timbreza Grand Junction, CO DELEGATE TO THE ABA HOUSE OF DELEGATES Hon. Peter D. Webster Tallahassee, FL DIRECTOR, CHIEF COUNSEL Peter M. Koelling Chicago, IL

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from Different Perspectives,” featured former White House Counsel to President George W. Bush, Harriet Miers, the Honorable Andre M. Davis, the Honorable Beryl A. Howell, and was moderated by Stephen Hsu of the Washington Post. If you missed this timely and outstanding program, you may still be able to hear a re-run of the discussion on C-SPAN radio or television.

“Moving and compelling” were words used by people who attended the Tribal Courts Council’s program “Addressing the Oliphant in the Room, a Panel Discussion with Survivors,” featuring excerpts from the compelling interpretative play “Sliver of a Full Moon.” The importance of the extension of the Violence Against Women Act was brought home in meaningful terms through the stories related by these survivors of violence.

In March, in honor of International Women’s Day, the Division presented “Court-Community Based Programs for Human Trafficking Victims: A Strategy for Success.” Featuring Judge Catherine Pratt, the webinar looked at the severity of problems facing human trafficking victims who wind up in the criminal justice system, including children.

The program looked at ways to integrate anti-trafficking measures to improve outcomes for trafficked and exploited children and adults.

The LC hosted its Day on the Hill, with members meeting with Congressional leaders to discuss issues of key importance specifically focused on the courts and the judiciary. The House of Delegates resolution passed at the Annual Meeting in San Francisco urging diverse appointments to the bench, as well as the resolution passed at the Miami Midyear Meeting encouraging the continuation of certain bankruptcy judicial positions were a focus, as was the need to fill vacancies throughout the country.

The Traffic Court Committee presented an outstanding program in Savannah, Georgia. So many citizens see our courts in operation to resolve issues related to traffic safety that this important training remains an essential core program for the Division. Many thanks to Judge Mary Jane Knisely and Judge Mary Celeste and her committee for the work that led to the success of this program.

We are on the home stretch with only one last quarter in which to finish strong on the important work of this year. I look forward to welcoming more than 50 members of the JD and its cosponsors at the upcoming Survey of International Law in The Hague. For those planning to attend, be sure to bring something orange, since you will be here in time to celebrate King’s Day, a traditional Dutch holiday event.

Thank you all for your continued support of the Judicial Division and special thanks to our staff.

The views reflected are solely those of the author. They do not necessarily reflect the views of the Special Tribunal for Lebanon.

2 • Spring 2017

DIRECTOR’S COLUMN

By Peter M. Koelling, Chicago, IL

T

he Judicial Division (JD) is the voice of the judiciary within the ABA and within the profession. To me, this is one of the most important reasons for being a member of the JD. Unlike other judicial organizations, we have a better opportunity to propose policy and to influence policy that is passed by the House.

The House of Delegates is representative of the profession as a whole. In fact, many delegates are not even members of the ABA. Those delegates are representatives of their state, local, or other national bar associations. This diversity of representation allows us to assert that the positions taken by the House represent the interests of the entire profession, not just the ABA. As draft policies are circulated and filed, we get an opportunity to review and comment. This is vitally important as so many policies, if implemented, can have dramatic impacts on the courts. Many drafters do not consider that impact. When we have become engaged in the process, we make these policies better.

Our level of involvement certainly began to increase five years ago when changes were recommended to the Code of Judicial Conduct with regard to recusal. It was an area where there were good intentions but no consideration of the practical matters of how those concepts would have to be acted on and what a judge would have to do to stay in compliance. Our voice was vital on this issue and an ill-advised change was avoided. We have since been engaged on a number of different issues.

More often we are sought out to cosponsor or support proposed resolutions. Any entity bringing forth a policy proposal does not want to have to tell the House or the other cosponsors that the judges are against it.

We have also been bringing our own policy issues forward. At last year’s Annual Meeting, we championed a resolution that called on all those appointing federal judges, magistrates, and staff to be mindful of the need to have a bench that better represents the diversity of our country. Passing policy is not enough and we are working with the Brennan Center to bring together the best practices for selecting bankruptcy judges and magistrates that will result in a highly qualified and a diverse bench.

At the Midyear Meeting, we brought another resolution.

ABA policy allows members to advocate on behalf of the ABA before Congress and other legislative bodies.

Last year, the Lawyers Conference (LC) of the JD went to Capitol Hill and met with members of the House and Senate judiciary committees to advocate for financial support and the filling of vacancies, two issues for which there have been long-standing policies. During those meetings, we were asked if we had a position on the need to make permanent a number of temporary bankruptcy judgeships that were expiring in May of 2017. We did not and could not take a position. When we returned, we immediately started a process of researching a resolution and report and reaching out to a wide number of entities both within and outside the ABA for their input and support. At the last Midyear Meeting, we were able to pass that resolution. The LC went to Capitol Hill this March and lobbied in favor of these judgeships. Senate staff that were sponsoring the legislation told us that it was so important that we were on the Hill talking about this. The fact that we were setting up meetings caused a lot of inquiries from other staffers and our taking the time to meet with members of Congress and their staff had raised the priority of this judgeship bill.

Our voice is important and we are making it heard. Our voice is making a difference and it is a great reason to be part of the Judicial Division.

Spring 2017 • 3

TECHNOLOGY COLUMN

Data Analytics: Can Judges Use Data Analytics to Make Better Case Decisions, Judgments, and Sentences?

By Jim Pauli, Silver Spring, MD

A

uthor’s note: When I volunteered to write this article, I thought it would be a nice, light, interesting article about a technology solution I saw in Australia 10 years ago. As I updated my research and followed the path down which my writing took me, a much weightier issue formed. I am interested in your thoughts.

—Jim Pauli Investment managers do it, health care providers do it, even the Defense Department does it. Let’s use data analytics to make better decisions. Okay, I am not Cole Porter, but I am making a similar point—many industries and professionals are using data analytics to make better decisions and judges should try to do the same.

Investment managers and financial institutions have been early adopters of data analytics. An IBM survey shows that they use data analytics for: customer-centric outcomes, operational optimization, risk financial management, new business models, and employee collaboration.1 Doctors and health care providers are learning that data analytics of treatments, out­ comes, and patients can help them make better medical decisions.2 The Department of Defense has built many Data-to-Decision systems to help warfighters accomplish their missions.

Can Judges Use Data Analytics to Make Better Case Decisions?

Courts and judges use many data analytics and information technology (IT) solutions to help them manage case administrative tasks, e.g., case management, calendaring, and eFiling solutions. The industries described above have moved beyond data analytics for administrative decisions and are using them to improve “mission” and “business” decisions: better returns for investors, fewer ill people, and

improved war fighting outcomes. How can judges move to the next level of using data analytics to make better “mission” decisions that result in better outcomes?

For judges and courts, “mission” decisions and outcomes are case decisions and outcomes. In criminal cases, final decisions and outcomes include: cases dropped, verdicts (guilty or not guilty), and sentences.

In civil cases, final decisions and outcomes include: case dismissed and settled, verdicts and judgments, and damages and relief.

This article focuses on criminal cases decisions and outcomes. Many state courts and federal courts have sentencing guidelines; guidelines are recommendations, not results. Additionally, many states have sentencing commissions that provide sentencing data; typically, at a highly-aggregated level and without filters.

Those readers who are judges, do you ever wonder: “What sentences have my colleagues made in similar situations?” Today, in the overwhelming number of jurisdictions, to answer that question, judges can ask their colleagues, spend time researching prior cases, or review highly-aggregated sentencing commission data.

Under the first two options, judges only have a very small sample, not a complete set of data from which to make a decision. Aggregated sentencing commission data tends to be presented at a high level, which makes it difficult to apply to specific situations. In most if not all instances, sentencing commission data is used to report results and is not designed as a decision support tool. Although, fairly recently, I spoke with a state’s chief judge of all courts of limited jurisdiction. He found the state’s sentencing commission’s aggregated data helpful in making sentencing decisions. If aggregated data helps, I would suggest that more specific and filtered sentencing data should be of even greater value.

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4 • Spring 2017

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New South Wales Judicial Commission’s Judicial Information Research System Around 2002, the Judicial Commission (JC) of New South Wales (NSW), Australia, sought to track the outcome of all criminal cases with what initially was called the Sentencing Information System (SIS) and now is called the Judicial Information Research System (JIRS).

number of counts, prior convictions, pleas, and age group. I was under the impression that data could also be filtered by gender, although I don’t see it here.

Graph 1: Driving While Intoxicated With a Middlerange Blood Alcohol Level

Actually, the JC was trying to solve a larger problem: They wanted to develop an online court reporter of all judicial decisions. They developed JIRS as “an extensive, interconnected and hypertextlinked resource that contains case law, legislation, sentencing principles, sentencing statistics and other reference material of use to trial judges.”3 Initially free to judges, prosecutors, and defense attorneys, now the JC charges an annual subscription fee from A$1,665 (US$1,265) to A$3,540 (US$2,688), at current exchange rates of A$1.00 equals US$0.76.

JIRS Sentencing Statistics This article focuses on JIRS’ sentencing statistics component. “The Sentencing Statistics component provides statistical information in the form of graphs and tables on the range and frequency of penalties imposed in the Supreme Court, District Court, Local Courts and Children’s Court. Entering specific details of the offence and the offender, such as age, prior record, bail status, plea, shows information on the “going rate” or “tariff” for the offence.”4 Graph 1 presents the sentences for those convicted of driving while intoxicated with a middle-range blood alcohol level (blood alcohol concentration of 0.08 to less than 0.15). In 2003 and 2004, driving while intoxicated with a middle-range blood alcohol level was the most common crime in NSW. The maximum penalty for a first offense was A$2,200 and/or nine months imprisonment and for a second offense was A$3,300 and/or 12 months imprisonment. In the bottom right corner the graph, the total number of cases resolved during the graph period (2003 and 2004) is shown. For each outcome, the graph provides a bar identifying the number and percentage of cases resolved in that manner. The drop-down menu shows the various ways to filter data by: offense type,

Benefits of Sentencing Statistics The sentencing statistics solution provides a number of benefits for judges and courts: • It gives judges a true picture of the sentences other defendants received for a particular crime.

When sentencing a defendant, judges can weigh the seriousness of the particular crime and sentence accordingly. For example, if there is a particularly serious set of facts, sentences will likely be on the higher end of the scale. This is probably particularly helpful to new judges.

• When both prosecutors and defense attorneys have access to the information, more informed and perhaps fairer plea-bargains result. In many jurisdictions, prosecutors and public defenders have better information and understanding of sentencing results than do private practice attorneys. JIRS information levels the playing field. I asked very experienced U.S. attorneys if this solution might help them. They responded that it would help them understand sentencing norms when representing clients in counties in which the attorneys practice infrequently.

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Spring 2017 • 5

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• Also, defendants want to know if their perspective plea is a “good deal”. This information provides objective information that the defense attorney can share with defendants to compare their plea agreement to actual outcomes. I recently spoke with a U.S. federal court criminal defense attorney who said her clients frequently ask her this question. To obtain a partial answer, she conducts a laborious search of federal databases.

• When judges review plea agreements, JIRS sentencing information can help them determine if a fair deal was struck. Better, fairer plea-bargains and defendants who are satisfied with their plea agreements are benefits to judges, courts, and society.

One of the reasons the JC decided to develop and provide its own sentencing information was to prevent forum shopping. The JC did not want judgespecific data provided. If they developed the system, they could ensure it was not available. Today, in the United States, there are online services that provide some judge-specific decision results and are used to predict likely outcomes.

Concerns The NSW courts have concerns about the JIRS system.

“In Hili v The Queen (2010) 242 CLR 520; 204 A Crim R 434; [2010] HCA 45, the High Court stated that while consistency in sentencing is a desirable end, the sentencing consistency sought is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.”5 The High Court stated at [48]: . . . Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge.

It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.”6 6 • Spring 2017

The court makes very good points. Judges need to sentence based upon the facts of a case, not just based upon a chart. The court also makes the point that there are limits to data analyses. But, I disagree with the High Court’s statement: “. . . that it is not possible to make any useful statistical analysis or graphical depiction of the results.” While the information provided by the JIRS system is not complete, I believe actual results provide helpful information and perspective. Judges can use the statistical information combined with other information to determine sentences. Back in 2006, when I discussed the solutions with the JC, judges, and attorneys, they thought the system was helpful. Further, the JIRS is a first-order system that is a very good start. Other courts can take the solution to a higher level. In most industries, data analytics starts at a basic level. People learn its value and then the solutions evolve. More data is used to make better decisions, which result in even better outcomes. There are fits and starts in the process, mistakes are made and corrected, lessons are learned, and better outcomes are achieved.

For example, in some states, such as Florida, a sentencing scorecard is required for all felonies. In Florida, the scorecard evaluates many factors and develops total sentence points that guide sentencing.

The scorecard and the total sentence points provide many additional data points that could be added to a JIRS-type system. This combined data might provide a more accurate and better support tool for judges making sentencing decisions. Further, this type of tool may answer many of the NSW High Court’s concerns because it provides more granularity and takes into account more case facts.

Big Challenge for Courts: How Do Judges Demonstrate Better Decision-Making and the Value It Achieves?

I started this article identifying other industries that use data analytics to make better decisions and achieve better results: higher investment returns, reduced rates of illness, more accurate targeting, and reduced collateral damage in war fighting. If these organizations can demonstrate improved decision-making, then the question is: How do judges demonstrate better decision-making and the value it achieves? These industries can quantify and value better decisions; can judges and courts as well? Further, many legislatures require quantified benefit and demonstrated financial savings to obtain project funding.

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For some judicial decisions, it may be easy to demonstrate and quantify benefits. For example, improved decisionmaking that reduces the number of wrongly convicted individuals should be able to demonstrate significant social and economic cost savings. Additionally, when studies show that specific types of sentences or programs decrease recidivism or increase security, these studies help improve judicial decision-making and should result in quantifiable benefits.

But, I believe, probably, for the vast majority of decisions judges make, even if you could identify that a better decision was being made, it might be hard to quantify the value of the decision. If we take the example of better sentencing decisions through the use of a JIRS-like system, we might argue that better decisions should result in: • • •

Fewer tried cases and more and better plea agreements.

Fewer appealed cases.

Fewer cases overturned on appeal.

Even if these results did occur, in most courts, as percentage of total cases, very few cases are tried and even fewer are appealed. It may be very hard to measure a statistically significant difference. Alternatively, one could argue that if judges have tools that allow them to make better decisions, more defendants will want those better decisions and will request trials. More trials will result in greater expenses for courts and will require increased court funding.

In many other instances, we may not have the information required to demonstrate that a new tool allows judges to make better decisions. For example, how would we show that a four-year prison sentence was a better decision than a three-year prison sentence, or a three-year prison sentence was a better decision than a four-year prison sentence? Can we show one sentence makes society safer and the other reduces recidivism?

Overall, better judicial decision-making should result in a perception by society that the courts are fair and just. We can measure citizens’ perceptions of the courts, but decision-making is probably only one of many factors that citizens will consider in determining their perceptions.

I believe judges can use data analytics to make better case decisions, judgments, and sentences. We know the private sector is investing in data collection and analysis to document what decisions judges have made and predict how they will rule in future decisions.

Judicial systems and courts should be investing in tools that help judges make better decisions. In the short term, we may be unable to document and measure improved decision-making, but that does not mean courts should not invest in these tools. So how should courts proceed? I recommend that courts proceed with developing data analytics based judicial decisionmaking tools. Courts need to experiment, research, work with judges, and create prototypes using rapid development approaches. And, for now, courts should rely on judges’ judgment to determine whether a tool improves decision-making.

Please send thoughts and comments to Jim Pauli at jim.pauli.ijs@gmail.com.

Jim Pauli is the managing director of Innovative Justice Solutions LLC. He has 30 years’ experience building consulting and IT practices at Price Waterhouse, EDS, HP, and as an attorney. Pauli consults to courts, justice organizations, nonprofits, and law firms on strategy, business models, operations, and technology. He is an active member of the ABA Judicial Division and authored the Technology and Case-Management Systems chapter of the Lawyers Conference’s recently released book: Improvement in the Administration of Justice 8th Edition.

(Endnotes) 1 Analytics: The Real-World Use of Big Data in Financial Services, How innovative banking and financial markets organizations extract value from uncertain data, IBM Global Business Services Business Analytics and Optimization By David Turner, Michael Schroeck and Rebecca Shockley, May 2013.

2 How Data Science Is Transforming Health Care, Tim O’Reilly, Mike Loukides, Julie Steele, and Colin Hill, Copyright ©2012 O’Reilly Media.

3 https://www.judcom.nsw.gov.au/judicialinformation-research-system-jirs.

4 NSW SIS presentation, 2006.

5 Criminal Law NSW Noticeboard – May 2015 – Insider. Thomson Reuters. May 7, 2015.

6 Ibid.

Spring 2017 • 7

Judicial Division Calendar Call Survey of International Law in The Hague, Netherlands April 23-28, 2017 Den Haag, NL ABA Annual Meeting August 10 – 15, 2017 New York, NY

Impressions of Havana, American Bar Association tour to Cuba

“Anatomy of a Federal Trial: Soup to Nuts” Educational Summit October 16-18, 2017 New Orleans, LA

ABA officers, present & former Board of Governors, federal and state judges, attorneys, and family members visited the United States Embassy in Havana, Cuba, on February 8, 2017. We had the opportunity on three occasions to meet with three Cuban lawyers, one of whom is a former Supreme Court Justice, and we also visited the University of Havana Law School.

For more details on these and other Judicial Division events, please visit www.ambar.org/jdevents.

Outside the U.S. Embassy, in photo below, left to right: 1st row: ABA chair-elect of Judicial Division, Judge Ann Breen-Greco, Traci Rawlinson 2nd row: ABA American Judicial System State Court member Judge Margaret Masunaga, Estrella Lucero, BJ Jones, Crystal Freed 3rd row: ABA President Linda Klein, ABA American Judicial System Federal Court member Judge Johnnie Rawlinson, former ABA Board of Governor (BOG) Marcia Ridings, BOG Ruthe Ashley, ABA House of Delegate Mike Freed, former BOG Pamela Enslen 4th row: ABA Law Library of Congress member Michael Neuren, Rory Fitzpatrick, ABA Secretary-Elect Mary Smith, Wendy Taube, former BOG Tom Fitzpatrick, ABA chair, House of Delegate Deborah Enix-Ross.

8 • Spring 2017

Seeking Volunteers Attending the 2017 Annual Meeting? Join the Judicial Division’s Standing Committee on Diversity in the Judiciary Wednesday, August 9, 2017, for a youth outreach program.

To volunteer or learn more about this event, contact Amanda Banninga at amanda.banninga@americanbar.org.

Connect with the Judicial Division

ABA Immediate Past President Paulette Brown and members of the Standing Committee on Diversity in the Judiciary prior to meeting with students at the Alonzo and Tracy Mourning Senior High School during the Midyear Meeting in Miami, FL.

Moderator Hon. Guy Reece II, Panelist Beverly McQueary Smith, Panelist Keya Koul, and SCDJ Chair Hon. Richard Nunes following the Standing Committee on Diversity in the Judiciary’s program at St. Thomas University School of Law during the Midyear Meeting in Miami, FL.

Spring 2017 • 9

APPELLATE JUDGES CONFERENCE 2016-2017 EXECUTIVE COMMITTEE

APPELLATE JUDGES

CONFERENCE

CHAIR Hon. Catharina Haynes Dallas, TX CHAIR-ELECT Hon. Robert Edmunds Raleigh, NC VICE-CHAIR Hon. James E. Lockemy Dillon, SC SECRETARY Hon. Samuel A. Thumma Phoenix, AZ IMMEDIATE PAST CHAIR Hon. Margret G. Robb Indianapolis, IN COUNCIL OF APPELLATE LAWYERS CHAIR Kate Galston Beverly Hills, CA COUNCIL OF APPELLATE STAFF ATTORNEYS CHAIR Frank Gibbard Denver, CO EXECUTIVE COMMITTEE MEMBERS Hon. Michael A. Cherry Carson City, NV Hon. Steven H. David Indianapolis, IN Hon. Albert Diaz Charlotte, NC Hon. Eva Guzman Austin, TX Hon. Brian M. Hoffstadt Glendale, CA Hon. Christopher McFadden Atlanta, GA Hon. G. Joseph Pierron Topeka, KS

CHAIR’S COLUMN

By Hon. Catharina Haynes, Dallas, TX

H

appy Spring! We began this year with a busy ABA Midyear Meeting in Miami. You can read elsewhere about the many Judicial Division (JD) sponsored activities. I want to focus on the Judicial Clerkship Program (hosted jointly with the Council for Racial and Ethnic Diversity in the Educational Pipeline) in which several judges in the Appellate Judges Conference (AJC) participated. This program brings students from law schools across the country and pairs them with judges and lawyers from the JD to simulate a judge-clerk interaction. This initiative is part of a broader effort to increase diversity in the pipeline of law clerks and judges. We engaged with students over three days on a very interesting copyright issue. The students enjoyed it, and we did as well.

We were also excited to celebrate the nomination of our own Elizabeth Lang-Miers to serve as vice-chair of the JD in the coming year. I have known Justice Lang-Miers for more than 20 years, dating back to her service to the Dallas Bar Association (including as its president). She has served as AJC’s chair and its delegate to the House of Delegates, among many other contributions to our conference. We are grateful for her continued willingness to serve and look forward to her leadership.

As always, I remind you to mark your calendars now for November 2–5, 2017, when we will join in presenting the Appellate Judges Education Institute (AJEI) Summit in Long Beach, California. The summit is open to all judges, lawyers, and staff attorneys (law professors and law students are welcome, too). Indeed, part of the unique strength and benefit of the summit is the interaction among the judges, lawyers, Continued on page 11

Building an Appellate Record in a Digital Age: Everything You Wanted to Know but Were Afraid to Ask

Hon. John E Sparks Washington, DC DELEGATE TO THE ABA HOUSE OF DELEGATES Hon. Elizabeth Lang-Miers Dallas, TX ABA BOARD OF GOVERNORS LIAISON Donald R. Dunner Washington, DC

10 • Spring 2017

Join the AJC Council of Appellate Lawyers on Saturday, August 12, 2017, from 10:30 a.m. to 12:00 p.m. for a complimentary CLE program. This program is in conjunction with the ABA Annual Meeting in New York, NY. Learn more at www.ambar.org/jdannual.

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staff attorneys, and others. Under the guidance of our summit chair, Justice Brian Hoffstadt, we have been busy planning excellent continuing-education presentations with great speakers, as well as enjoyable networking activities and optional tours of the area.

While you are adding to your calendar, please go ahead and save the date for AJEI 2018 in Atlanta, November 8–11, led by Judge Chris McFadden.

I am always interested in ways we can better serve our current members and reach out to those who have yet to join. I am particularly interested in ways we can bring the national ABA JD/AJC efforts to your state. If you have ideas for webinars or other outreach programs, would you please let us know? We can be reached through our staff person, Denise Jimenez, at Denise.Jimenez@americanbar.org.

I also want to give a special thanks to the Council of Appellate Staff Attorneys (CASA) and the Council of Appellate Lawyers (CAL), two groups that play an important role in our conference. In addition to bringing us a different perspective, they provide invaluable help in planning and supporting the summit. I give thanks to CASA Chair Frank Gibbard, CAL Chair Kate Galston, and all of the other leaders within their respective councils!

As always, I am grateful to serve as your chair. Our Executive Committee is terrific. There have been several times already during my tenure that I have needed a “quick response,” and the committee members have been unfailingly prompt in responding with thoughtful and insightful comments. Thank you, Executive Committee, for your service.

Finally, for those of you attending the JD International Program in The Hague, I look forward to seeing you there in a few weeks.

Save the Date 2017 Appellate Judges Education Institute Summit November 2–5, 2017 The Westin Long Beach Long Beach, California Hosted by the ABA Judicial Division and Duke Law Center for Judicial Studies www.law.duke.edu/judicialstudies/ajei

Spring 2017 • 11

COUNCIL OF APPELLATE LAWYERS CHAIR’S COLUMN

By Kate Galston, Beverly Hills, CA s spring approaches, I am pleased to report that the Council of Appellate Lawyers (CAL) has had a very busy and productive winter and that 2017 is off to a great start.

A

In the first week of January, CAL published its final report on e-briefing: The Leap from E-Filing to E-Briefing Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs, which is available at http://www.americanbar.org/ groups/judicial/conferences/appellate_judges/ appellate_lawyers.html.

This comprehensive report was the result of CAL’s twoyear research project, led by Project Chair Robyn Ridler Aoyagi, on e-briefing. The report has been incredibly well received by judges, lawyers, and court staff. I continue to see references to the report throughout the country. For example, in Los Angeles, California, where I practice, the California Court of Appeal, Second District, now includes a link to CAL’s report on the homepage of its website as a guide for litigants preparing electronic documents for filing with the courts.

As the chair of CAL, I am proud that CAL continues to serve as a leader in providing information, analysis, and guidance on appellate practice throughout the country, and the e-briefing project is the latest manifestation of that.

CAL members have also been actively involved in planning the 2017 Appellate Judges Education Institute (AJEI) Summit, which will take place in Long Beach, California, November 2–5, 2017.

In January, Kirsten Castaneda (CAL’s Summit programming chair), Brad Pauley (a former chair of CAL and co-chair of the 2017 AJEI Host Committee), and I attended the AJEI Education Committee meeting in Long Beach, California. The Committee discussed 12 • Spring 2017

new programs and bench-bar networking events for the 2017 AJEI Summit. I am very pleased that CAL is planning a number of interesting summit programs, including programs on legal writing, oral advocacy, diversity in the appellate sphere, and interlocutory appeals, among others. I anticipate that these programs will provide a real value to CAL’s members.

CAL also plans to hold its annual breakfast roundtable program during the 2017 summit. These small-group discussions have been very well attended in recent years and have offered a wonderful opportunity for CAL members to discuss cutting-edge issues in appellate practice with seasoned appellate practitioners, appellate judges, and appellate staff attorneys.

In other programming news, CAL recently kicked off its new webinar series on March 21, 2017, with a program entitled Appellate Ethics Review: The Scope of the Record on Appeal and Responding to Media Inquiries about Your Appeal. This program featured Justice Steven David of the Indiana Supreme Court; Amber Hollister, Oregon State Bar general counsel; Professor Jan Jacobowitz of the University of Miami School of Law; and Nancy Olson, assistant U.S. attorney, District of Nevada, who chairs CAL’s Government Appellate Lawyers Committee.

CAL’s Programs Committee is in the process of planning additional webinar programs. This webinar effort fits well with CAL’s successful programming activity at the annual AJEI Summit and the ABA’s Annual and Midyear meetings. CAL strives to provide the best appellate-focused CLE programming in the country and continues to succeed in this effort. By offering webinars, CAL’s outstanding programming can be made available to a wider audience.

I encourage you to tune in to CAL’s webinars and reach out to me if there are topics that you think we should address.

If you have any questions about CAL or its programs, or if you would like to join CAL or become more involved, please send me an email at kate@galstonappeals.com.

I would be delighted to hear from you.

COUNCIL OF APPELLATE STAFF ATTORNEYS CHAIR’S COLUMN

By Frank Gibbard, Denver, CO

T

he new spring is dawning and members of the Council of Appellate Staff Attorneys (CASA) are hard at work with new projects for a new year. One of the ABA’s great opportunities this year took place last month. In early February, my wife and I avoided a nasty snow and ice storm in Denver by escaping to the ABA Midyear Meeting in Miami, Florida. There we met with lots of old friends from CASA’s Executive Board, judges, and appellate attorneys from the Council of Appellate Lawyers. It was a fantastic trip.

One of the most enjoyable features of the Midyear Meeting is the opportunity to participate in the Judicial Clerkship Program (JCP). CASA provided three representatives to serve as “judges” on the JCP this year: Christina Smith, Joe Merrick, and me. As in prior years, my experience with the JCP was overwhelmingly positive. During the program, I met minority students who were full of energy and enthusiasm, coupled with a wide variety of fascinating pre-law experiences. I felt humbled and grateful to have encountered such interesting future leaders.

Prior to beginning law school 30 years ago in 1987, I had never started my own business or been deeply involved in community affairs and causes. Some of the students I encountered at the JCP, though still young, had already made remarkable entrepreneurial efforts before deciding to pursue a career in the law. They had also engaged in some really great externships during

law school. Their career interests ran the gamut, from public service to prosecution to commercial law.

The problem posed to the students for their research this year involved a tough intellectual property question. I was impressed with how the students engaged with the problem. I hope that CASA will continue to be an active participant in the JCP. We appreciate the opportunity to be included in the program.

The CASA Executive Board also held a meeting at the Miami Midyear Meeting on Saturday, February 4. We heard from the chairs of our Education, LongRange Planning, CASA Chronicles, and Membership Committees. Many exciting events and challenges are coming our way in 2017.

Through its very able Education Committee, featuring Ric Schickele and Cliffie Wesson, CASA has been actively involved in planning the upcoming Appellate Judges Education Institute 2017 Summit in Long Beach, California. The summit will take place November 2–5. Programs in the works include sessions on the Japanese Internment, National Emergencies and Government Power, Self-Editing, Effective Brief Writing, Managing Appellate Dockets, Courts in the Age of “New Media,” and many more. Excursions to the Aquarium of the Pacific, the Queen Mary, and an afternoon at the beach are also being planned. I hope to see many of my good friends and new CASA members there.

The next ABA event this year will be the Annual Meeting in New York in August. If you have any questions or ideas, please don’t hesitate to contact me at frank_gibbard@ca10.uscourts.gov.

Spring 2017 • 13

2017–18 Appellate Judges Conference Call for Nominations As stated in Sec. 7.1 of the Appellate Judges Conference Bylaws, nominations for officers and members-at-large of the Executive Committee shall be made by the Nominating Committee. The Nominating Committee shall submit its report to the Chair of the Conference no later than 45 days prior to the Opening Assembly of the Annual Meeting.

The JD’s Appellate Judges Conference (AJC) is seeking members interested in serving on the Executive Committee as officers and members-at-large.

The Open Positions and Terms Include: Vice-Chair (one-year term expiring in 2018) Four open positions for the members-at-large (two-year term expiring in 2019) Delegate to the ABA House of Delegates (three-year term expiring in 2020) The Honorable Catharina Haynes, 2016–17, chair of the Appellate Judges Conference, has appointed the following members to serve on the Nominating Committee: Hon. Margret Robb, chair, Indianapolis, IN; Hon. Mark Martin, Raleigh, NC; Hon. N. Randy Smith, Pocatello, ID; Leane Capps, Dallas, TX; and Christina Smith, Atlanta, GA. If interested in any of these important leadership positions, please submit a current resume and letter of interest by Monday, May 1, 2017 to Denise Jimenez at denise.jimenez@americanbar.org.

THANK YOU TO OUR SPONSOR The Judicial Division’s Appellate Judges Conference would like to thank Thomson Reuter for the generous support of the Executive Committee Dinner and remarks by special guest, Chief Justice Mark Martin of the North Carolina Supreme Court, “Things I Know Now, That I Wish I Knew Then: Reflections of a New Chief Justice,” held February 4, 2017, in Miami, FL.

14 • Spring 2017

LAWYERS

CONFERENCE

LAWYERS CONFERENCE 2016-2017 EXECUTIVE COMMITTEE CHAIR Christopher G. Browning, Jr. Raleigh, NC CHAIR-ELECT Mark O’Halloran Mercer Island, WA

CHAIR’S COLUMN

VICE-CHAIR Stephen Zollman Guerneville, CA

By Christopher G. Browning, Jr., Raleigh, NC

T

he ABA Midyear Meeting in Miami was a huge success for the Lawyers Conference (LC). Karen Popp (former associate White House counsel to President Clinton and partner at Sidley Austin) moderated a panel discussion on “The Presidential Nomination Process and Steps to Confirmation: A View From Different Perspectives.” The panel consisted of several nationally-known figures with experience in the White House, Capitol Hill, the judiciary, the media, and academia. The program was recorded by both the ABA and C-SPAN. Program highlights can be found at: www.americanbar.org/news/ abanews/aba-news-archives/2017/02/video_highlightsex.html.

Approximately 200 people attended the live presentation.

A further highlight of the Midyear Meeting was the joint reception between LC and the National Conference of Specialized Court Judges. LC greatly appreciates the law firm of Carlton Fields, Peter Webster, and Col. Linda Murnane making that event possible. The Miami offices of Carlton Fields were a great location to socialize with specialized court judges and enjoy the view of downtown Miami.

The Midyear Meeting was followed just a few weeks later by another extremely successful LC event. Mark Sessions and Mike Bergmann did a great job planning the Second Annual LC Day on the Hill. As part of this March 7–9, 2017, event, numerous ABA members split into groups and met with over 27 senators and House members (or their senior staff). The principal focus of these meetings was to discuss the importance of extending (or making permanent) numerous bankruptcy court judgeships that are set to expire. The background concerning this important issue is set out in ABA House of Delegates Resolution 101 (enacted February 6, 2017). The events included a breakfast and dinner with members of Congress. ABA members participating in the event included: Mike Bergmann, Rick Bien, Jack Brown, Chris Browning, Denise Cardman, Hon. Robert Collings, Dan Gourash, Demetra Koelling, Peter Koelling, Col. Linda Murnane, Mark O’Halloran, Jim Pauli, Mark Sessions, Hon. Laurie Silverstein, and Greg Werkheiser.

In addition to following-up with members of Congress, Mark Sessions is already planning our Third Annual LC Day on the Hill for 2018.

I encourage you to consider volunteering your time next year to advocate on behalf of the judiciary.

SECRETARY Mark G. Sessions San Antonio, TX IMMEDIATE PAST CHAIR Rachel DuFault Edgewater, NJ EXECUTIVE COMMITTEE MEMBERS Lauren Bennett Knoxville, TN Carolyn Dubay Raleigh, NC Monica A. Fennell Greencastle, IN Leland Moore Hamden, CT James Pauli Silver Spring, MD Karen Popp Washington, DC Robert Saunooke Miramar, FL Emily J. Tidmore Birmingham, AL ABA BOARD OF GOVERNORS LIAISON Darcee Siegel Bal Habour, FL DELEGATE TO THE ABA HOUSE OF DELEGATES Peter D. Webster Tallahassee, FL YOUNG LAWYERS DIVISION LIAISON Andrew Schpak Portland, OR LAW STUDENT DIVISION LIAISON Rose Kabir San Diego, CA

Continued on page 16

Spring 2017 • 15

Continued from page 15

Next year’s Fourth Annual Admission Ceremony to the U.S. Supreme Court is scheduled for March 26, 2018.

If you are not already admitted to the U.S. Supreme Court Bar, I strongly encourage you to save the date.

Judge Ann Breen-Greco will move for the admission of the group. This past year, Justice Sonia Sotomayor was kind enough to meet privately with our group of new bar admittees. Carolyn Dubay and Angela Hinton will be planning next year’s event.

LC members have been diligently working with the National Conference of Federal Trial Judges to plan an educational summit in New Orleans on October 16–18, 2017. This CLE is designed to give attendees a chance to interact with federal trial judges and exceptional trial lawyers as the program addresses the nuts and bolts of trying a case. Numerous volunteer opportunities exist in connection with this summit.

Served.” This program will be on Thursday, August 10, 2017, from 3:30 p.m. to 5:00 p.m. This free CLE is an excellent opportunity to better understand how we—as individuals and as a profession—can give back to the service men and women who have stood in harm’s way to protect our freedoms. We are also working on details for a reception to get LC members together at the Annual Meeting.

To date, this has been an extremely successful year, but much remains to be done. I encourage you to consider getting involved in one of our committees: http://www.americanbar.org/content/dam/aba/ administrative/lawyers_conference/lc_cmte_ descriptions.authcheckdam.pdf.

Planning is also underway for the ABA Annual Meeting in New York. The LC Committee on Veterans and the Courts is in the midst of planning a program entitled “Veterans and the Courts: Serving Those Who Have

Connect to the LC

2017 Yegge Award Call for Nominations The Lawyers Conference is now accepting nominations for the 2017 Robert B. Yegge Award, which is presented annually to a current or former member of the ABA who has made an outstanding contribution to the field of judicial administration.

Visit www.ambar.org/jdlc for rules and the application form. All submissions must be made by Monday, May 15, 2017, to amanda.banninga@americanbar.org or mailed to Attn: Amanda Banninga, 321 N. Clark, 19th Floor, Chicago, IL 60654.

16 • Spring 2017

Report of the Lawyers Conference Nominating Committee Pursuant to Article VII, Section 8.02 of the Lawyers Conference Bylaws, the report of the Nominating Committee shall either be sent to all members or published in any regular publication of the Conference or Judicial Division no less than 60 days prior to the opening assembly at the Annual Meeting. Additional nominations may be made by nominating petition signed by at least nine voting members and received by the Conference Administrator at least 30 days prior to the Annual Meeting.

The Nominating Committee nominates the following people to serve in the positions indicated below: Vice Chair: Mark Sessions (San Antonio, TX) Secretary: Carolyn Dubay (Raleigh, NC) 2020 Executive Committee Members (three-year terms expiring in 2020): Monica Fennell (Greencastle, IN) Merril Hirsh (Washington, D.C.) Andrew Schpak (Portland, OR) In the event that Carolyn Dubay is elected as secretary, the committee recommends the following for the remaining two years of her term on the Executive Committee: Jay Ray (Plano, TX) The above nominees will be presented for election by vote at the ABA Annual Meeting in New York, NY, August 2017, pursuant to Article 4.01.

At the conclusion of the Annual Meeting, Mark O’Halloran (Seattle, WA) will ascend to the position of chair and Stephen Zollman (Guerneville, CA) will ascend to the position of chair-elect, pursuant to the provisions of Article 5.03.

Lawyers Conference Nominating Committee Chair: Rachel DuFault

Some of our Lawyers Conference Day on the Hill participants (from left to right): Mr. Mark Sessions, Judicial Division Chair Col. Linda Murnane, Mr. Chris Browning, Former JD Chair Richard Bien, Mr. Dan Gourash, Mr. Mark O’ Halloran, and Former JD Chair Jack Brown.

Spring 2017 • 17

Lawyers Conference Awards Committee Co-Chairs Mark O’Halloran and Leonard Rich, 2017 Burnham “Hod” Greeley Award Recipient Julie Myres, and Lawyers Conference Chair Christopher G. Browning at the Midyear Meeting in Miami, FL.

Congresswoman Sheila Jackson Lee and Col. Murnane

18 • Spring 2017

Congresswoman Pramila Jayapal and Mark O'Halloran

National Conference of the

ADMINISTRATIVE LAW JUDICIARY

NATIONAL CONFERENCE OF THE ADMINISTRATIVE LAW JUDICIARY 2016–2017 EXECUTIVE COMMITTEE CHAIR Hon. Christina Kalavritinos Bethesda, MD

Judge John Dietrich presenting his January 24 ADR Program.

CHAIR-ELECT Hon. Mary E. Kelly Los Angeles, CA VICE-CHAIR Hon. Judson Scott Danville, CA SECRETARY Hon. Robert S. Cohen Tallahassee, FL IMMEDIATE PAST CHAIR Hon. Julian Mann, III Raleigh, NC EXECUTIVE COMMITTEE MEMBERS Hon. John Allen, IV Chicago, IL Hon. Emily Chafa Johnston, IA Hon. Joan Churchill Chevy Chase, MD Hon. James Haynes Washington, DC Hon. Lorraine Lee Olympia, WA Hon. H. Alexander Manuel Arlington, VA Hon. Dean Metry Galveston, TX Hon. Patricia Miles San Francisco, CA DELEGATE TO THE ABA HOUSE OF DELEGATES Hon. Thomas W. Snook Miami, FL ABA BOARD OF GOVERNORS LIAISON Benjamin Griffith Austin, TX

Continued on page 19

Spring 2017 • 19

Report of the National Conference of the Administrative Law Judiciary Nominating Committee Automatic Succession to Office

Pursuant to the Bylaws of the National Conference of the Administrative Law Judiciary, at the upcoming Annual Meeting in New York, NY, in August 2017, the following officers will assume office by automatic succession: Hon. Mary E. Kelly will succeed to the position of chair Hon. Judson Scott will succeed to the position of vice-chair Hon. Christina Kalavritinos will succeed to the position of immediate past chair

Committee Nominations

The Bylaws also provide that the NCALJ Nominating Committee shall make and report one nomination for each conference office that will not be filled by automatic succession and four members of the Executive Committee to succeed those individuals whose terms will expire at the Annual Meeting.

The committee makes the following nominations for conference office: Hon. Robert S. Cohen as vice-chair Hon. H. Alexander Manuel as secretary The committee nominates the following for terms as members on the Executive Committee: Hon. Hon. Hon. Hon.

Emily Chafa Joan Churchill Lorraine Lee John Thawley

In the event that Hon. H. Alexander Manuel is elected as secretary, the committee recommends the following for the remaining year of his term on the Executive Committee: Hon. Michael Brownfield

Additional Nominations

One or more additional nominations may be made for any elective office, but only by petition signed by not less than 20 conference members and which petition should state that the member nominated has agreed to the nomination. The petition must be sent to the conference chair, Hon. Christina S. Kalavritinos, via amanda. banninga@americanbar.org, and must be received no later than 60 days prior to the Annual Meeting.

Election to Office

The nominees will be voted on at the ABA Annual Meeting in New York, NY, on Saturday, August 12, 2017.

20 • Spring 2017

National Conference of

FEDERAL TRIAL JUDGES

NATIONAL CONFERENCE OF FEDERAL TRIAL JUDGES 2016-2017 EXECUTIVE COMMITTEE CHAIR Hon. Frank J. Bailey Boston, MA CHAIR-ELECT Hon. J. Michelle Childs Greenville, SC

CHAIR’S COLUMN

By Hon. Frank J. Bailey, Boston, MA

T

he Executive Committee met at the ABA Midyear meeting and much progress was made on our initiatives and projects.

More on that later. First, I want to note an important milestone in the life of the National Conference of Federal Trial Judges (NCFTJ).

On Sunday February 5, 2017, Senior District Judge Charles N. Clevert Jr. (E.D. Wisc.) attended his last executive committee meeting as a member of the Executive Committee. Judge Clevert will retire from the bench on March 31, 2017, after 40 years on the federal bench. At that time, he will leave the NCFTJ. Judge Clevert joined the NCFTJ and the Executive Committee in 1992. In 1992, he was serving as a bankruptcy judge and he had already achieved much. He was among the first African American lawyers in the office of the U.S. Attorney in Milwaukee.

He was a chief bankruptcy judge. He had served as president of the National Conference of Bankruptcy Judges (NCBJ). He was among the first African American bankruptcy judges in the United States. When he attended an ABA meeting on behalf of the NCBJ he was asked to join the ABA and the Judicial Division (JD). But he learned that bankruptcy and magistrate judges were eligible to join the Specialized Court Judges Conference within the JD, but not the NCFTJ. This did not sit well with Judge Clevert. He felt strongly that federal Article I judges were key contributors in the federal judicial system. He was convinced that the NCFTJ would be a much stronger voice of the federal trial bench if it included Article I judges. So, he declined to join the ABA and the JD. But, the chair of the NCFTJ was insistent that they needed Judge Clevert, so the Executive Committee changed the bylaws to include Article I judges as members, creating in the NCFTJ an opportunity for all federal trial judges to collaborate on matters that are important to them. After many years in the leadership of the NCFTJ, including as the chair, Judge Clevert left the Executive Committee. Later, in about 2010, he was drafted again to join the leadership of our conference. He has joined the faculty of the Judicial Clerkship Program, served as the education chair of the conference, served as the diversity chair of the conference and the JD, attended innumerable outreach programs to local high schools in disadvantaged neighborhoods, and participated on more educational panels than even he can recall. And that barely scratches the surface. Judge Clevert has worked tirelessly for the ABA to improve the administration of justice and to ensure the advancement of the profession. We are proud to call Judge Clevert our friend. He inspires us and makes us want to do more. In short, we are forever in his debt and, while we will still see him at ABA gatherings, we will miss his steady voice and judgement at the NCFTJ Executive Committee.

VICE-CHAIR Hon. Barbara A. McAuliffe Fresno, CA SECRETARY Hon. Leo Brisbois Duluth, MN IMMEDIATE PAST CHAIR Hon. Nannette A. Baker Saint Louis, MO DELEGATE TO THE ABA HOUSE OF DELEGATES Hon. Elizabeth Snow Stong Brooklyn, NY EXECUTIVE COMMITTEE MEMBERS Hon. Charles N. Clevert, Jr. Milwaukee, WI Hon. Robert B. Collings Boston, MA Hon. Jeffrey Hopkins Cincinnati, OH Hon. Nancy Joseph Milwaukee, WI Hon. Robert Pratt Des Moines, IA Hon. Pamela Reeves Knoxville, TN Hon. Anita Shodeen Des Moines, IA Hon. Miguel Torres El Paso, TX Hon. Juan Vasquez Washington, D.C. ABA BOARD OF GOVERNORS LIAISON Alan Van Etten Honolulu, HI

Continued on page 22

Spring 2017 • 21

Continued from page 21

The centerpiece of our Midyear Meeting events in Miami was the honors program at the Wilkie D. Feguson, Jr. U.S. Courthouse of the Southern District of Florida, where the NCFTJ honors a judge or judges at our Midyear meetings. This award is special because it comes not from a bar association or publisher, but from federal trial judges who do what you do every day.

We look for a judge or judges that exemplify the highest standards of the bench, that have worked to ensure that the federal bench looks like the populations we serve by encouraging young lawyers to aspire to serve on the bench and that have demonstrated excellence and collegiality on the bench. In the Southern District of Florida, three names were repeatedly offered by the bench and bar. On Friday February 3, 2017, the friends, families, and court families of Senior Judge Donald L. Graham, Magistrate Judge Patrick A. White, and Chief Bankruptcy Judge Laurel Isicoff gathered at the beautiful courthouse in the ceremonial courtroom where the honorees had their achievements recognized.

The court held a beautiful reception to make the event even more memorable. We offer our congratulations and thanks to Judges Graham, White, and Isicoff and their families.

A progress note on our upcoming Educational Summit: Anatomy of a Federal Trial—From Soup to Nuts. Judge Barbara McAuliffe and her planning committee met with the Lawyers Conference to plan the conference, scheduled for October 16-18, 2017 in New Orleans.

We will hold a summit over parts of three days where lawyers will have a chance to watch experienced lawyers and judges demonstrate best practices and then to sit at tables where they will have close instruction and interaction with judges and lawyers to hone those skills. This will be an intensive skillsbased program that will follow a single fact pattern from pretrial events through post-trial motions and an appeal. Attendees are expected to include lawyers between 5 and 15 years out of law school, as well as more senior lawyers who wish to hone their trial skills.

Judge Michelle Childs will continue to issue her very useful updates. Please read them to keep abreast of our many programs, webinars, and events. Enjoy the rest of the winter; spring is right around the corner!

On March 9, 2017, Judge Frank Bailey, chair of the National Conference of Federal Trial Judges (NCFTJ) and Judge Nannette Baker, immediate past chair of NCFTJ, attended the portrait unveiling ceremony of Executive Committee member Charles N. Clevert Jr. who will retire on March 31 after a long and distinguished career in the Eastern District of Wisconsin.

During the ceremony, Judges Bailey and Baker presented our conference's plaque and message of thanks. Judge Bailey reports that “it was a happy and moving ceremony attended by a large group of Judge Clevert’s family members, judges from the ED Wisconsin and 7th Circuit, chambers and court staff, lawyers and friends.” Congratulations to Judge Clevert.

22 • Spring 2017

Save the Date: October 16 - 18, 2017 Royal Sonesta Hotel New Orleans, LA Join the National Conference of Federal Trial Judges and the Lawyers Conference for "Anatomy of a Federal Trial: Soup to Nuts" Educational Summit.

The program will encompass demonstrations of various phases of a federal trial based on a fact pattern, followed by interactive roundtable discussions led by federal judges and experienced lawyers. The topics will include pre-trial motions, admissibility of evidence, examination of experts, closing arguments, damages, attorney’s fees, appeals, and ethics.

There will also be a luncheon and keynote speaker. The summit will be open to ABA and non-ABA lawyers.

If you would like to be notified when registration opens, please contact Amanda Banninga at: amanda.banninga@americanbar.org

Spring 2017 • 23

National Conference of

NATIONAL CONFERENCE OF SPECIALIZED COURT JUDGES 2016-2017 EXECUTIVE COMMITTEE

SPECIALIZED COURT JUDGES

CHAIR Hon. Mary A. Celeste Denver, CO CHAIR-ELECT Col. Tara Osborn Ft. Belvoir, VA VICE-CHAIR Hon. Richard E.A. Nunes Hackensack, NJ SECRETARY Hon. Lisa Atkinson Edmonds, WA

CHAIR’S COLUMN

By Hon. Mary A. Celeste, Denver, CO

T

he Midyear Meeting saw a wonderful reception sponsored by our National Conference of Specialized Court Judges (NCSCJ), the Lawyers Conference, and the Tribal Council. Thank you to our staff support Cheronne Mayes and Jill Charles who attended the reception.

Thank you to Col. Linda Murnane, Judicial Division (JD) chair, who partially funded the reception. Thank you also to our own Peter Webster and the law firm of Carlton Fields.

The event resulted in our conference securing new members joining the ABA and our conference. The food was great and we even had the opportunity to sing happy birthday to

IMMEDIATE PAST CHAIR Hon. Beth A. Gibson Newberry, MI FIRST DISTRICT Hon. Michael Pietruszka Buffalo, NY SECOND DISTRICT Hon. Pamila J. Brown Ellicott City, MD THIRD DISTRICT Hon. Earl Penrod Princeton, IN FOURTH DISTRICT Hon. Roy Wijewickrama Waynesville, NC FIFTH DISTRICT Hon. Shelbonnie Hall Mobile, AL SIXTH DISTRICT Hon. Katherine Hansen Des Moines, IA SEVENTH DISTRICT Hon. Steven L. Smith Bryan, TX EIGHTH DISTRICT Hon. Margarita Solano Bernal Tucson, AZ NINTH DISTRICT Hon. James M. Riehl Port Orchard, WA MEMBER-AT-LARGE Hon. Ernestine Gray New Orleans, LA Hon. Mary Jane Knisely Billings, MT Hon. George Perez Mendota Heights, MN DELEGATE, ABA HOUSE OF DELEGATES Hon. Elizabeth Finn Glendale, AZ LIAISON, ABA BOARD OF GOVERNORS Hon. Herbert B. Dixon, Jr. Washington, DC

Col. Murnane.

By the time this goes to print, NCSCJ would have conducted its annual Traffic Court Seminar in Savannah, Georgia. To date, we have about 80 participants and over a dozen topics and speakers from around the country. Thank you to Judge Mary Jane Knisely for coordinating this seminar and to staff Cheronne Mayes for all of her assistance. There will be a luncheon sponsored by the National Safety Council and a reception sponsored by Smart Start, Inc. I trust that the food will be splendid and hope to find the big Georgia shrimp on some menu while there.

In July 2017, our conference will again host a membership drive reception, but this time at the annual National Association of Drug Court Professionals (NADCP). This conference has approximately 5,000 attendees from all over the country and the world and over 200 judges who serve specialized courts. The speakers and audience address topics related to specialized courts. This year, I have been invited to speak on the topics of The Use of Medical Marijuana for PTSD in Veteran’s Courts and The Legal History, Neuro-science and Toxicology of Marijuana. Again, our JD Chair Col. Linda Murnane is partially funding our NADCP reception. Thank you also to ThermoFisher Scientific for helping fund this reception.

On the note of “funding,” as I write this column, I am struck and worried about the current financial condition of the ABA. With over 6,000 members and growing, the JD is a small but intricate part of the ABA. All ABA members play a role in the civil and criminal justice system with judges in vital positions. This is especially true in Continued on page 25

24 • Spring 2017

Continued from page 24

specialized courts such as drug and alcohol, domestic violence, tribal, and mental health courts, where the judges also serve as team leaders.

In the face of many stand-alone national judicial associations and organizations, the judges in the JD of the ABA, which number about 3,500, have made a conscientious decision to focus their time and energy to support the ABA. Any across-the-line budget cuts

could severely curtail the participation of judges in the JD and ultimately the ABA. Judges are public servants and as such receive somewhat lower salaries relative to the legal profession. When the ABA partially and occasionally reimburses the attendance of judges at ABA meetings, it allows for strong participation. If this funding is eliminated, the quantity and maybe even the quality of JD membership and attendees could be negatively impacted.

Arizona well represented at Clerkship Program: Judge Chris Whitten, (Maricopa County Superior Court), Marsha R. Durr (ASU), Judge Margarita Bernal (Ret.) (Tucson Municipal Court), Lisa Wrazidlo (U of A), Joab A. Maestas (U of A), Clark Wu (ASU), and Judge Elizabeth Finn (Glendale City Court). This was the first year the University of Arizona law students have participated in the program.

Spring 2017 • 25

Executive Orders on Immigration and State Court Judges

By Hon. William G. Kelly, Kentwood, MI At the ABA Midyear Meeting, the ABA presented a program “The First 100 Days: Immigration at a Crossroads, Lives in the Balance.” The program discussed the three executive orders concerning immigration that President Donald Trump has issued.

The first dealt with border security. The second was to enhance public safety in the interior of the United States. The third dealt with protecting the nation from foreign terrorist entry.

On January 25, 2017, President Trump signed the Border Security Executive Order. It stated that the policy of the executive branch is to:

1.

2.

3.

4.

5.

Secure the southern border with a wall and hire more border patrol agents.

Detain individuals apprehended on suspicion of violating Federal or State law.

Expedite deportations.

Promptly remove those whose legal claims to remain in the U.S. have been lawfully rejected.

Cooperate fully with state and local law enforcement to enforce immigration laws.

The executive order calls for the construction of detention facilities near the southern border and the hiring of 5,000 additional border patrol agents.

On January 25, 2017, the president also signed the Public Safety in the Interior of the United States Executive Order. This executive order directs the Homeland Security Agency to prioritize the removal of undocumented aliens and removable aliens who:

I. II. III. IV.

Have been convicted of any criminal offense; Have been charged with any criminal offense, where such charge has not been resolved; Have committed acts that constitute a chargeable criminal offense; Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

V. VI. VII.

Have abused any program related to receipt of public benefits; Are subject to a final order of removal but who have not complied with their legal obligation to depart the United States; or In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

This order calls for hiring of an additional 10,000 immigration officers and calls for agreements with state and local agencies to enforce the immigration laws.

This executive order also provides that “sanctuary jurisdictions” are not eligible to receive federal grants.

On January 27, 2017, the president signed the executive order To Protect the Nation from Foreign Terrorist Entry. This order suspends the entry of immigrants and nonimmigrants from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia for 90 days and from Syria indefinitely. This executive order will not affect the ability of a person who is currently in the country with a visa to stay in the country. Such a person could have trouble re-entering the country if that person is from one of the countries named in the executive order and were to leave the United States. The U.S. District Court in Washington issued a Temporary Restraining Order (TRO) against this executive order. The TRO for the Entry of Foreign Terrorists executive order was upheld by the Ninth Circuit.

While the Border Security order and Entry of Foreign Terrorists orders have received extensive publicity, the order concerning the Public Safety in the Interior Executive Order may have a significant effect on the court system.

The people who are not in this country legally will have significant problems if and when they come into contact with law enforcement. The Obama administration established the Deferred Action for Childhood Arrivals (DACA) policy. The people covered

by DACA are now subject to being removed. In the past, such a person might have a hold placed on him Continued on page 27

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Continued from page 26

or her if he or she was detained but would not be subject to deportation for an offence such as driving without a valid license or disorderly conduct. If this executive order is enforced, such a person could be arrested in your courthouse and detained if the person is convicted of or just charged with violating state or local law. The executive order expects that state and local officials will cooperate with the immigration authorities in enforcing the immigration laws.

The penalties for driving without a valid license are usually just fines and costs. The penalties associated with deportation however are much more significant.

The person will be separated from family, employment, community, and home. It is important for state court judges to be aware of the immigration consequences for people who come before the court. It is possible that a number of people who are not in the United States legally will probably, for fear of deportation, decide not to appear in your court, despite what the court orders.

They may also decide not to speak with police about criminal activity in their neighborhood.

Standing Committee on Diversity Visits Alonzo and Tracey Mourning High School and St. Thomas Law School in Miami

By Hon. Elizabeth R. Finn, Glendale, AZ Assisted by Col. Linda Strite Murnane (Ret.), USAF, Liedschedam, NL

M

embers of the Judicial Division’s (JD) Standing Committee on Diversity in the Judiciary (SCDJ) visited students at the Alonzo and Tracy Mourning High School in Miami, Florida on February 1, 2017. During the visit, the judges and lawyers on the Outreach team visited with more than 30 students and discussed the Bill of Rights and the U.S. Constitution. The outreach team was joined by the immediate past president of the ABA, Paulette Brown.

Members attending the outreach were delighted to see the students’ classroom walls decorated with famous cases like: Plessey vs. Ferguson, Brown vs. Board of Education, Gideon, and Citizens United. It was obvious the teachers were preparing these students for a unique background in the law. This was even more evident in our discussions with the students. Though some of us were surprised to have to explain what the right of free assembly meant (this was two weeks after the Women’s International Marches), it was obvious these students were very bright and focused.

The outreach discussion of the Constitution focused on a civics curriculum program that asked the students which rights within the Bill of Rights they would surrender if required to do so under a hypothetical case scenario. Following the discussion with the students, the outreach lawyers and judges spoke about the importance of the core documents of U.S. democracy.

After the outreach program, the members of the SCDJ participated in a program at St. Thomas University School of Law. The ABA’s Standing Committee was welcomed by Dean Alfredo Garcia. Attendees were then treated to a thorough analysis of Resolution 110B, otherwise known as standard 316. The resolution was waiting for a vote in the House of Delegates (HOD) on February 6, 2017. This discussion was quite beneficial in that it occurred the week before the HOD voted down the resolution. For HOD members such as me, it helped clarify that the resolution was not yet ripe to be deployed. Keya Koul, associate director of alumni relations at the University of San Francisco School of Law, was very specific in terms of how the passage of Continued on page 28

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the resolution would impact diversity efforts she had personally led. Beverly McQueary Smith, professor emeritus of advocacy, Jacob D. Fuchsberg Law Center, Touro College, is the law school professor we all wanted: dynamic, funny, entertaining, while weaving in specific facts. The moderator was Hon. Guy Reece of Columbus, Ohio. The panel members discussed the ABA Section of Legal Education’s Standard Review Committee proposed Standard 316. The proposal would reduce the time within which passage of the bar by those attempting to take a bar exam must succeed as a condition of ABA accreditation from the current five years to two years. Panelists presented views as to how the proposed change might impact two important aspects of law school attendance. The impacts included the potential for reliance upon the misplaced perception that students with lower LSAT scores or grade point averages might be rejected for fear that they would not pass the bar exam within that shorter window. Another key concern was that the reduction in the period of time within which to report passage of the bar did not really address the problem it was intended to resolve, which is: law students in significant debt upon graduation without realistic possibilities for a job consistent with the income to repay the student loan to get a J.D. degree.

Three reasons why the proposal is good: 40 percent decline in applications for law schools, decreased LSAT scores, and a decline in bar passages in bar passage rates with law schools competing for

students by offering more money. Three reasons why the proposal is bad: More than 90 deans (many who supported the proposal) signed a letter opposing saying the topic needs more study. It assumed that everyone who attended law school was going to want to take a bar exam and were actually going to practice in a court, and the metrics from when the bar exam must be taken did not take into account our current mobilization of transferring not only to other states but other countries. There was also a major concern that law schools would be inclined to “teach to the test” because of the reduced time in which to take the bar exam. And one of the main concerns: It would result in a negative impact on all of the forwardthinking programs that have occurred during the past decades; efforts to create a diverse bar would be reversed. Discussion occurred that, at this time, with the Rule of Law being discussed so frequently, we need lawyers more than ever before.

Many students and faculty of St. Thomas attended the program and spoke about their concerns with the proposed resolution.

The SCDJ was also well represented in the JD and Standing Committee on Racial and Ethnic Diversity Pipeline Council’s Minority Judicial Clerkship Program, which was held for three days during the Midyear Meeting.

Connect to the NCSCJ

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National Conference of

STATE TRIAL JUDGES

NATIONAL CONFERENCE OF STATE TRIAL JUDGES 2016-2017 EXECUTIVE COMMITTEE CHAIR Hon. Cheryl D. Cesario Evanston, IL CHAIR-ELECT Hon. Calvin L. Scott, Jr. Wilmington, DE

CHAIR’S COLUMN

VICE-CHAIR Hon. Guy L. Reece II Columbus, OH

By Hon. Cheryl D. Cesario (Ret.), Chicago, IL

A

s spring approaches, we reflect on a relatively calm winter, unless you live in California where the drought is perhaps at an end due to the unusually large amount of rain, or live in the Northeast that experienced a couple of huge snowfalls. Nothing, however, has remained calm in the ABA as it goes through downsizing pains.

Our National Conference of State Trial Judges (NCSTJ) Conference meeting at the ABA Midyear Meeting in Miami kicked off with a bang on Wednesday afternoon with the Youth Outreach Program of the ABA Standing Committee on Diversity in the Judiciary. The students who attended this year’s wonderful program organized by Judge Richard Nunes, at the Alonzo and Tracy Mourning Senior High School, were so smart and simply amazing. All agreed that they were one of our best groups yet! State Trial Judge participants included Judges Toni Clark, David Connors, Stephanie Domitrovich, Marcella Holland, Kelvin Jones, and Guy Reece, as well as myself. We were delighted and honored to have ABA Immediate Past President Paulette Brown join us.

During our opening Judicial Division (JD) Reception, ABA leadership received a letter from Jack Rives, the executive director of the ABA, advising the membership that the ABA Board of Governors (BOG) had approved both bottom up and top down ABA budget cuts for 2017–18 earlier that day. These cuts would directly affect available funding for the activities of both our JD and the NCSTJ. The proposals immediately began to be vetted at the Midyear Meeting. Our NCSTJ meeting agenda, as well as the Section Officers Conference that we participate in, and our JD Council agenda were all modified to accommodate the necessary discussions of the kinds of cuts proposed and the impact on our work.

Following difficult discussions all day, the NCSTJ dinner on Friday evening held at DB Bistro Moderne was a lovely distraction enjoyed by all who attended. In addition to our JD Chair Col. Linda Murnane joining us, we were also honored to have as our guests Judge Tonya Parker, who sits on the same bench as our membership chair, and Judge Jim Jordan from Houston, Texas. Judge Parker was one of three awardees honored on Saturday evening at the 2017 Stonewall Awards given by the Commission on Sexual Orientation and Gender Identity (SOGI). Another of our members, Judge Guy Reece, had to leave the meeting early to receive an award from The Boy Scouts of America in his home town of Cleveland, Ohio, on Saturday.

SECRETARY Hon. Heather A. Welch Indianapolis, IN IMMEDIATE PAST CHAIR Hon. Annette J. Scieszinski Albia, IA EXECUTIVE COMMITTEE MEMBERS Hon. Linda M. Bell Las Vegas, NV Hon. David M. Connors Farmington, UT Hon. Sophia H. Hall Chicago, IL Hon. James Jordan Dallas, TX Hon. Rachel L. Kretser Albany, NY Hon. Michael Shubatt Dubuque, IA Hon. Philip C. Smith Cumming, GA Hon. Gina Higgins Memphis, TN Hon. David Thomson Santa Fe, NM Hon. Mary R. Vasaly Minneapolis, MN DELEGATE TO THE ABA HOUSE OF DELEGATES Hon. Christopher T. Whitten Phoenix, AZ ABA BOARD OF GOVERNORS LIAISON J. Timothy Eaton Chicago, IL

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The 17th Annual Judicial Clerkship Program, a joint effort of the JD and the Council for Racial and Ethnic Diversity in the Educational Pipeline, was resoundingly supported by the participation of over 30 conference members who mentored the 70 law school students from 14 different law schools. The program co-chair was our own Judge Heather Welch.

The following slate of nominees for leadership of the NCSTJ for the 2017–18 year was announced

by Immediate Past Chair and 2016–17 Nominating Committee Chair Judge Annette J. Scieszinski.

Chair: Judge Calvin L. Scott Chair-Elect: Judge Guy L. Reece, II Vice-Chair: Judge Heather A. Welch Secretary: Judge Linda Bell National Judicial College Representative: Judge Christopher T. Whitten Directors: Judge Judge Judge Judge Judge

Stephanie Domitrovich Gina Higgins Marcella A. Holland Denise Langford Morris David Thomson

At our business meeting, we discussed possible bylaw changes regarding continuing membership after you end your judicial career. Also, the discussion of the proposed budget cuts was continued with BOG member J. Timothy Eaton, who is the BOG liaison to our conference. NCSTJ membership numbers

continue to be strong, according to the report from our membership chairs, Judges Jordan and Connors.

Plans for the ABA Annual Meeting in New York, August 10–15, 2017, are coming together. Judge Reece has sharpened the focus for our Town Hall Meeting to be held Friday, August 11, 2017. All of the NCSTJ state delegates and conference members are urged to attend. We will discuss the topic of forensic science and how scientific advances affect the presentation of evidence in the trials over which we preside.

Of course, our conference socializing will be memorable.

The Friday evening dinner will be held at a comparatively affordable restaurant, the New York Yankee Steakhouse.

The dining room is filled with baseball memorabilia to enjoy. Make sure you sign up for the dinner when you register for the Annual Meeting!

Lastly, the future of our conference is enhanced by new members. In attendance in Miami were, besides Judge Parker, Judge Kelvin Jones, Nashville, Tennessee, and Judge Mary Chicchelly, Cedar Rapids, Iowa. In addition, we welcomed Judge Gina Higgins to the Executive Board.

The challenges of the coming year, at every level in our country, must be met by a strong, dedicated, and principled bench. The integrity and courage of the members of our third branch of government have never been so needed. I am looking forward to seeing you in New York and supporting each other in what now, more than ever in this century, continues to be a challenging job.

Connect to the NCSTJ

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Book Review Engines of Truth: Producing Veracity in the Victorian Courtroom

By Hon. Peter Buchsbaum (Ret.), Stockton, NJ

A

central role for a trial judge is evaluating credibility and veracity.

How do judges and the judicial system ensure that lying does not dominate the evidence received in court?

In Engines of Truth, Wendie Ellen Schneider, a Yale Law School graduate who teaches History at Iowa State University, explores this issue as it arose in Victorian England from 1840 to 1900.

She demonstrates why English law adopted crossexamination as a method to promote truth-telling.

She concentrates on civil cases in which lying might be prevalent, such as those involving road accidents, bankruptcy, divorce, and sexual misconduct. Her book does not stress preventing lying by criminal defendants, because, in England, they did not have the right to testify until enactment of the Criminal Evidence Act in 1898.

Schneider catalogs the various approaches (“engines of truth”) attempted by the English court system. The first of these was to prosecute witnesses for perjury after a trial had concluded. These prosecutions were rarely successful. They proved costly and timeconsuming and, when they were successful, tended to result in excessive punishments. Often the motive for these perjury trials was revenge. As Schneider describes one dramatic case from 1860, Henry Hatch, “a country vicar and part-time schoolmaster, was convicted of indecent assault after one of his pupils, an 11-year-old girl named Eugenia Plummer, accused him of fondling her at school.” Hatch prosecuted Plummer for perjury. She was convicted, but Queen Victoria immediately pardoned her.

A prominent jurist of the time, James Fitzjames Stephen, believed that perjury leading to criminal inculpation should be treated as a serious crime, but, in civil actions, Schneider writes, Stephen cajoled and

berated juries into acquitting perjury defendants. In 1859, Parliament passed the Vexatious Indictments Act, requiring more judicial involvement before a perjury charge could be brought against a witness.

Loopholes in the statute, however, made it less than fully effective.

An effort to obtain truthfulness in the hotly contested area of divorce was the creation of an office of Queen’s Proctor within the Treasury Solicitor’s Office. The Queen’s Proctor was to intervene in a divorce matter when it appeared that one of the parties was not testifying honestly. In the 1870s, however, the Queen’s Proctor lost two cases in which the judges held that the Queen’s Proctor had no power to set aside the presumed factual findings of a jury. The functions of the office were diminished by these rulings and its interventions became less frequent.

With other methods not producing results, the English courts turned to cross-examination, but that had its own difficulties. The bar took the position in the 1840s that cross-examination must be conducted in a “gentlemanly” manner, not abusively or even assertively. Even as late as 1874, an attorney named Edward Kenealy was subject to censure for professional misconduct for asking one witness whether he had committed perjury and another whether he was of good moral character. He had dared to blacken the reputations of a distinguished British family.

Two emotional divorce cases in which witnesses of high social standing were accused of sexual improprieties also led critics to complain about cross-examination.

Opponents of the practice labeled it “a species of forensic attack.” Such goings-on might lead witnesses to refuse to testify.

But by the end of the 19th century, many of the objections to cross-examination began to disappear.

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concern for the truth, came to supersede perjury prosecutions as the primary means of guaranteeing witness veracity.” Cross-examination was to be allowed “if the case at hand justified it in the barrister’s estimation.” In 1898, Parliament passed the Criminal Evidence Act, which left the regulation of cross-examination “to the consciences of counsel,” as a newspaper put it.

Schneider ably describes the eventual triumph of cross-examination over other engines of truth, interestingly reciting the facts of relevant cases. She also quotes from Victorian novelist Anthony Trollope’s He Knew He Was Right, Phineas Redux, and Orley

Farm, which portray the Queen’s Proctor in court and attorneys engaged in cross-examination. I would have liked to have seen Dickens quoted, too. Who can forget C.J. Stryver’s wonderful cross-examination of a witness in A Tale of Two Cities, where the witness cannot distinguish Carton from Darney, or the prosecution’s examination of the hostile witnesses in Bardell v.

Pickwick, especially where Mr. Winkle is rattled into describing Mr. Pickwick’s promise to Mrs. Bardell?

Reprinted with permission from The Federal Lawyer, The Federal Bar Association, 71220 N. Fillmore St., Suite 444, Arlington, VA 22201. © 2016

“Preserving the Rule of Law:” National Judicial Outreach Week for March 5–11, 2017

By Hon. Stephanie Domitrovich, Erie, PA

R

ecently at the midannual meeting of the Pennsylvania state trial judges, we had the opportunity to hear U.S. District Court Judge John E. Jones III recount the challenges he has faced in specific cases when following the Rule of Law. Over 12 years ago, when a dispute occurred over whether the Dover Area School District of York County, Pennsylvania, could change its biology teaching curriculum to require intelligent design to be presented as an alternative to the evolution theory, the creationists from across the United States threatened to murder Judge Jones when they lost their case before his court. Their death threats were contained in numerous hateful letters, telephone calls, emails, and faxes, attacking Judge Jones as a traitor and an activist judge. Since that time, Judge Jones has been randomly assigned to other high-profile cases, such as the Pennsylvania case involving same-sex marriages wherein he followed the Rule of Law and held same-sex marriages legal. His message to us as state trial judges was to meet with the public and talk about the Rule of Law and the work courts do every day. He believes that we as judges need to educate the

public about our responsibility and faithfulness to the Rule of Law, and we must seek opportunities to teach our constituents about the Rule of Law. Little did Judge Jones know that the ABA’s Judicial Division (JD) just debuted National Judicial Outreach Week for March 5–11, 2017 (and the first full week of March every year thereafter) to have judges throughout the nation carry this message to the people we serve. When I informed him and sent him our information packet, he was delighted by our efforts thematically titled “Preserving the Rule of Law.” The Judicial Outreach Network Committee of the ABA’s JD labored for many hours to prepare this presentation, complete with explanatory notes about the how and why of Judicial Outreach Week.

The Judicial Outreach Network Committee has also developed a concise PowerPoint presentation and speaker notes for judges to use or adapt to their own styles and preferences. The PowerPoint presentation provides a down-to-earth description of the Rule of Law and fosters discussions between the presenting judges and their audiences.

The speaker notes provide judges with a step-bystep procedure with details to discuss with audience members. For instance, these notes begin with explaining and suggesting commentary about the Continued on page 33

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symbolism of Lady Justice, the book in her left arm (which represents the laws that rule our government and our society), her blindfold (which represents how our courts must apply our laws equally to everyone without regard to their appearance or identity), and her scale (which represents fairness and objectivity).

The information packet is complete with suggested PowerPoints as well as information about how to find audiences and how to make Judicial Outreach Week a success. Relevant provisions in the ABA Model Code of Judicial Ethics and comments are also provided.

Guidelines for effective presentations provide judges with “take away” ideas about essential American values that the audience members should remember after they attend this Rule of Law presentation.

We owe a large debt of gratitude to the Honorable Russ Carparelli for his leadership and all the judges and lawyers on the Judicial Outreach Network committee. We are fortunate that we as members of the Judicial Division have this outstanding vehicle to make informative presentations to our constituents.

We are in good stead when we celebrate National Judicial Outreach Week during March 5–11 this year and during the first full week of March every year thereafter as an excellent opportunity for us to herald the Rule of Law.

Another Successful Judicial Clerkship Program

By Hon. Heather A. Welch, Indianapolis, IN

T

he 2017 Judicial Clerkship Program (JCP) enjoyed another successful year at the ABA Midyear Meeting in Miami, Florida. The JCP is a joint effort of the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline and the ABA Judicial Division (JD) with the generous support of LexisNexis. Attorney Robert Saunooke, Saunooke Law Firm PA, Mirmar, Florida, and I had the pleasure of chairing this event, as we were appointed by JD Chair Colonel Linda Strite Murnane as co-chairs to prepare and present the JCP at the Midyear Meeting on February 2–4, 2017, in beautiful Miami, Florida.

This was the 17th year of the JCP where minority law students from across the United States had an opportunity to learn about judicial clerkship programs and opportunities.

University Robert H. McKinney School of Law, and also a former justice on the Indiana Supreme Court, once again wrote a challenging and interesting problem for the law students.

The purpose of the JCP is to assist minority law students as the students listen and participate in panel discussions of judges, in a research and writing exercise, and interact with judges at various informal social events. These activities educate the students about judicial clerkship programs, inform them how to obtain a judicial clerkship, encourage them to seek and apply for judicial clerkship positions, and provide the students with an opportunity to interact with successful federal and state judges, both trial and appellate, from across the United States. Professor Frank Sullivan Jr., professor of practice at the Indiana

The JCP conference has been one of my favorite and most beneficial activities in law school. I came back for my last semester invigorated, motivated, and passionate about my future in the legal field.

Getting to personally know so many judges from all over the country was very exciting for many reasons. First, getting feedback on our resumes and what we can do as prospective clerks to stand out was great. Knowing what is important, or what judges look for in their ideal candidate, is the type of knowledge you cannot get from your local career development office. Second,

The 2017 JCP was another successful one with approximately 72 students participating from 15 law schools from across the United States. The students had the opportunity to hear from Keynote Speaker Justice Peggy Quince of the Florida Supreme Court.

Justice Quince shared her story of success and her road to the Florida Supreme Court.

Law student Diego Wu from the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana, shared his thoughts on the JCP:

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going through an exercise as if we were their clerks gave me an idea of what the day-to-day life of a law clerk looks like and how important the clerk-judge relationship is beyond the work product. Third and last, meeting judges who have similar backgrounds, have gone through many of the daily struggles I am going through, and prevailed, was very humbling. Ultimately, it was an incredible experience interacting with a group of highly recognized and prestigious judges. This experience was definitely invaluable and certainly makes me regret not being more active with the ABA as a student. I know that going forward I will try to attend many of these events in the future.

country, who are committed to the ideal of achieving a diverse bench which is reflective of an increasingly diverse bar.” During the JCP, Judge Jones attributed his success to his mother, who started encouraging him in kindergarten that he could and would be a judge one day. Judge Jones shared that the support provided by his mother was an important part of his success, but programs such as the JCP would have been very beneficial for him in becoming a judicial law clerk and eventually a judge. Both Judge Jones and law student Wu certainly demonstrate the great importance of the JCP and truly show it is having a positive effect in encouraging minority law students to apply for judicial clerkships in our country.

Judge Kelvin Jones, Eighth Circuit Court Davidson County, Nashville, Tennessee, was a first-time judge volunteer for the JCP. Judge Jones stated: “It has been said that ‘You can’t be what you don’t see.’ For many minority law students, the prospect of becoming a judge can appear to be out of reach.

The ABA’s Judicial Clerkship Program provides opportunities for minority law students to have mentorship opportunities with judges, throughout the

Lastly, I would like to give a special “Thank You” to ABA staff Sharon Tindall, Kris Berliant, and Jill Charles for all their hard work in making the JCP a success. I would also like to thank LexisNexis for their continued and committed support of this program.

My co-chair and I are also grateful for the judges who volunteered their time and the students who attended the JCP. The JCP Committee is looking forward to another successful JCP in 2018.

Judge Kelvin Jones in Kindergarten expressing his desire to become a judge one day.

Judge Kelvin Jones, 8th Circuit Court, Davidson County, Nashville, TN

Photos of JCP law students on page 35

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Judges and law students who attended the 2017 ABA JCP.

JCP law students with past ABA President Paul.

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Report of the National Conference of State Trial Judges Nominating Committee As stated in Article 5.1 of the National Conference of State Trial Judges (NCSTJ) bylaws, the Nominating Committee is charged with selecting one nominee for each office and reporting its recommendation. Additional nominations for officers may be made by petition. The petition must be signed by at least 15 conference members from not less than three states and must be filed with the conference staff, Denise Jimenez (denise.jimenez@ americanbar.org), at least 60 days prior to the 2017 Annual Meeting.

Per Article 3.2 of the NCSTJ bylaws, the directors shall be elected at the Annual Meeting of the conference by delegates in attendance.

The members of the Nominating Committee voted and recommend the following people to serve in the indicated positions. These nominees will be elected by vote at the ABA Annual Meeting in New York, NY, on Friday, August 11, 2017.

At the conclusion of the Annual Meeting, the Hon. Calvin L. Scott (Wilmington, DE) will ascend to the position of chair.

Officers Chair Elect: Hon. Guy L. Reece, II (Columbus, OH) Vice Chair: Hon. Heather A. Welch (Indianapolis, IN) Secretary: Hon. Linda Bell (Las Vegas, NV) 2019 Board of Directors Hon. Stephanie Domitrovich (Erie, PA) Hon. Gina C. Higgins (Memphis, TN) Hon. Marcella A. Holland (Baltimore, MD) Hon. Denise Langford Morris (Pontiac, MI) Hon. David Thomson (Santa Fe, NM) Additionally, the Judicial Division representatives on the National Judicial College Board of Trustees rotate among three of the judicial conferences, one of which is the NCSTJ. The Nominating Committee convened to consider applications for the appointment of an NCSTJ member to the NJC Board of Trustees for a three-year term beginning in June 2017. The Nominating Committee voted to support the Hon. Christopher T. Whitten (Phoenix, AZ) to be the NJC Board of Trustee.

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