T H E B A R A S S O C I A T I O N O F S A N F R A N CI S C O / S u m m e r 2 0 1 8
LOSE THE BOOZE Rethinking
TRAIN YOUR BRAIN
Resilience Tools for Lawyers
Networking Events
MINDFULNESS
A Superpower for Lawyers
12
steps to A healthier and happier law firm The Summer issue
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Health Wellbeing
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SAN FRANCISCO
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Health Wellbeing 18
Let’s Lose the Booze: Rethinking Networking Events Kathleen Guthrie Woods
24
Twelve Steps to a Healthier and Happier Law Firm Amy L. Greywitt
2 SUMMER 2018
28
Train Your Brain: Resilience Tools for Lawyers Fairuz Abdullah and Annabrooke Temple
34
Cut Back on Desk Aches and Pains Caroline Jordan
38
Mindfulness is a Superpower for Lawyers Judi Cohen
ATTORNEY A Publication of The Bar A ssociation of San Francisco
F E A T U R E S
SUMMER
2018
C O L U M N S
6
PRESIDENT’S REPORT Pro Bono for the Soul Malcolm A. Heinicke
44
A Conversation with Presiding Judge Teri L. Jackson Adam Kaplan
52
Say Yes to Pro Bono Gary A. Watt
10
BARRISTERS CLUB REPORT Let’s Move the Profession For ward Andrew Amoroso
54
SUPREME COURT WATCH Our Too-Powerful Supreme Court Josh Patashnik
60
BOOK REVIEW Federal Business and Commercial Litigation Stephen McG. Bundy and Daniel P. Martin
4
BOARD OF DIRECTORS
4
MISSION STATEMENT
64
INDEX OF ADVERTISERS
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 3
THE BAR ASSOCIATION OF SAN FRANCISCO 301 Battery Street, Third Floor, San Francisco, CA 94111 phone 415-982-1600 / fax 415-477-2388 A PUBLICATION OF
The Bar Association of San Francisco
www.sfbar.org
Editorial Team Andrew Amoroso, Kerstin Firmin, Kristine Pederson, Kyiakhalid Ruiz, Kathleen Guthrie Woods Design/Art Direction Sarah Davis,
Kerstin Firmin
BASF BOARD OF DIRECTORS President Malcolm A. Heinicke President-Elect Doris Cheng Treasurer Stuart Plunkett Secretary Marvin Anderson Board of Directors Alexis Amezcua, David Carrillo, Terrance Evans, Sigrid Irias, Charles Jung, Sebastian Kaplan, Colin Kemp, Miriam Kim, Karen Kimmey, Carolyn Lee, Lisa P. Mak, Mary McNamara, Peter C. Meier, David Otsuka, Vidhya Prabhakaran, Jennifer Redmond, David Tsai, Sharon Woo BARRISTERS BOARD OF DIRECTORS
President Andrew Amoroso President-Elect John Hamasaki Treasurer Natascha Fastabend Secretary Kelly Matayoshi Board of Directors John-Paul Deol,
Lauren Young Epstein, Nadim Hegazi, Anjali Kulkarni, Sean McHenry, Jessica Ryland, Matthew Valdez, Jamie Wells, Pierre Zado
EXECUTIVE STAFF, BASF/JDC Yolanda Jackson Executive Director and General Counsel, the Bar Association of San Francisco; Executive Director, Justice & Diversity Center Sandra Rodriguez Chief Financial Officer, the Bar Association of San Francisco and the Justice & Diversity Center EXECUTIVE STAFF, THE BAR ASSOCIATION OF SAN FRANCISCO Jack Hannan Deputy Executive Director Raquel Cabading Director of Continuing Legal Education Carole Conn Director of Public Service Programs Kerstin Firmin Director of Communication and Public Relations Bruce Keppler Director of Information Technology Leonard Lun Director of Membership Julie Traun Director of Court Programs EXECUTIVE STAFF, JUSTICE & DIVERSITY CENTER Gloria Chun Director/Managing Attorney, Pro Bono Legal Services Program Teresa Friend Director/Managing Attorney, Homeless Advocacy Project Steve Love Director of Donor and Community Engagement
SAN FRANCISCO ATTORNEY LETTERS TO THE EDITOR & SUBSCRIPTIONS phone: (415) 782-8910 / email: editor@sfbar.org ADVERTISING INFORMATION Michael Walker, National Advertising Manager phone: 213-896-9210 / email: mike@rwwcompany.com
SAN FRANCISCO ATTORNEY
(ISSN 0744-9348) Volume 44/Number 2. Published quarterly for $36 per year by the Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco, CA 94111. Periodical Postage Paid at San Francisco, CA, and at additional mailing offices. Subscription inquiries and changes of address should be sent to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. POSTMASTER: Send address changes to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. © Copyright 2018 by the Bar Association of San Francisco. All rights reserved. Reprint Requests: The Copyright Act of 1976 prohibits the reproduction of any portion of this issue except with the permission of the publisher. For permission to copy or to use material from San Francisco Attorney magazine, please contact the editor at editor@sfbar.org. Neither BASF nor the editors assume responsibility for statements or expressions of opinion by contributors to this publication.
4 SUMMER 2018
in this issue The Summer 2018 isssue of San Francisco Attorney magazine is guestedited by Barristers Club President Andrew Amoroso, Move Associates, and focuses on health and wellness in the legal profession. Learn more about the Barristers Club at www.sfbar.org/ barristers. photos by Etienne Giradet
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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 5
PRESIDENT’S REPORT
P RO B O N O FOR THE SOUL
C Malcolm A. Heinicke
hances are you do not want your bar association to ask only what you can do for us, but you also want to know what your bar association can do for you. We get it, and we think the answer to both questions can be the same. Barristers Club President Drew Amoroso and I know that this is a challenging profession, and we are focusing our efforts this year on promoting the physical and emotional health of our membership. Volunteering even just a little bit of your time will bring you emotional satisfaction and balance. Call it pro bono for the soul.
6 SUMMER 2018
PRESIDENT’S REPORT
Now, you are a lawyer. As such, chances also are that you are busy—really busy—with a full schedule. We understand that you may not have time to build a new program, figure out what your various options are, or even explore where to begin in the first place. The Bar Association of San Francisco (BASF) and our friends and colleagues at the Justice & Diversity Center (JDC) have already done all of this for you.
With just a few hours (yes, just a few hours), you can make a significant difference in the life of a fellow San Franciscan. And, I bet the experience will reward you as well.
Here are just three examples:
Housing Negotiation Project You can help keep someone housed and off the streets by spending just one afternoon with a tenant facing eviction. At JDC’s settlement conference clinic, volunteers negotiate with the landlords’ attorney and try to work out an agreement in the best interests of the individual. We know that tenants facing eviction fare far better in the process when represented by counsel, and yet there simply are not enough lawyers to meet the need here. You need not
be an eviction law expert or even know anything about the subject. JDC will provide close supervision and guidance. What these clients need most is a voice, someone who can understand and then advocate for them. You can do this, and it will make a difference. In San Francisco, this is the front line in the battle against homelessness. And, here’s all it will take: two hours of training and four hours of volunteering. (You may also want to schedule some extra time to receive thanks from a very grateful client whose home you save.) That’s it. Just show up and we will show you how. Upcoming Housing Negotiation Project trainings: • Tuesday, July 17 at 5‒7 p.m. • Tuesday, September 11 at 5‒7 p.m. • Tuesday, November 13 at 5‒7 p.m. To sign up or learn more, email probono@sfbar.org.
Consumer Debt Defense and Education Clinics Aggressive and unfair debt collection practices can have a devastating impact on some of the most vulnerable people in our city. Again, under expert supervision, lawyers in this program counsel clients one-on-one about the cases filed against them, often by third-party debt buyers who ignore procedural protections for consumers. You will advise these people on their rights and options and then draft basic, preliminary documents for them to file pro per. Just this basic effort makes a huge impact for people who would otherwise wade through litigation alone and intimidated. Once again, no expertise is needed, and your mere presence as a lawyer will make a huge difference. The stark reality is that many of our most vulnerable neighbors face civil proceedings with no counsel, and when they have counsel, they simply fare better.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7
PRESIDENT’S REPORT
What will it take? Three hours at JDC’s clinics after three hours of initial training. Upcoming Consumer Law trainings: • Wednesday, June 27 at 4‒5 p.m. • Wednesday, July 25 at 4‒5 p.m. • Wednesday, August 22 at 4‒5 p.m. To sign up or learn more, email probono@sfbar.org.
income, and hold it all together for her child. She was facing all sorts of challenges, including legal ones. With the father gone, she could not submit paperwork and authorizations that required both parents. JDC’s volunteers filed a motion asking the court to grant our client sole custody of her child. She said that when that one motion was granted and she knew her child would have a more stable situation, she felt she could get her life back on track. A fellow San Franciscan was in need, and a JDC volunteer gave her and her child the advocacy and the basic human support she needed to move forward.
Limited-Scope Family Law Motions
How long did this lawyer have to give to change the lives of this mother and her child? 20-30 hours over 3-4 months.
With just one child custody motion and hearing, you can stabilize lives. For example, one client came to JDC after her husband abruptly left her and their child. She was devastated, struggling to get by on one
Upcoming Family Law trainings: • Wednesday, June 13 at 4‒5 p.m. • Wednesday, July 18 at 4‒5 p.m. • Wednesday, August 22 at 4‒5 p.m. To sign up or learn more, email probono@sfbar.org.
Your mere presence as a lawyer will make a huge difference. The stark reality is that many of our most vulnerable neighbors face civil proceedings with no counsel, and when they have counsel, they simply fare better.
8 SUMMER 2018
You Can Do This And, since you are a lawyer, we will cover some of the technicalities here just so there are no questions (or excuses): JDC has malpractice insurance for its volunteers. JDC also provides training and constant support for its volunteers. And, you can rest assured that you will not be the first person to volunteer for these programs, and they have been running successfully for years. Over the course of this year, JDC Director and Managing Attorney of the Pro Bono Legal Services Program Gloria Chun and I will be visiting law departments, law firms and other groups of lawyers to repeat this message and explain all of the opportunities we can provide.
PRESIDENT’S REPORT
On Tour: Pro Bono Road Show stop at the Minority Bar Coalition’s Presidents Reception in April. From left, BASF board member Charles Jung, JDC’s Gloria Chun, David Tsai, BASF board member Lisa Mak, and Phyra McCandless
Through this “pro bono road show,” we will explain all of the ways you can help. But, you need not wait for us. The upshot is this: your community needs you, and we have ready-made opportunities for you to help your fellow San Franciscans and yourself in the process. Just show up, learn a little, and do what you do every day: advocate for a deserving client. You can see many of the opportunities available at www. sfbar.org/probono-menu. See what interests you the most, reach out to our staff and schedule a time to volunteer.
Yes, by doing this, you will be helping JDC and its clients, but you will also be helping yourself by doing something rewarding and promoting your own emotional health. Malcolm A. Heinicke is the 2018 president of the Bar Association of San Francisco. A partner at Munger, Tolles & Olson, his practice focuses on employment and complex commercial litigation, particularly in class and collective actions and employee mobility matters.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 9
BARRISTERS CLUB REPORT
Let’s Move the
Profession Forward
Andrew Amoroso
Andrew Amoroso is guest-editor of the summer 2018 issue of San Francisco Attorney magazine.
S
ome of the most important discussions we can have as members of the legal community involve how to make progress as a profession. Topics like how to better serve our clients, provide access to legal services, and embrace innovation and technology are key to those discussions.
But if we are serious about identifying ways to move our profession forward, then we must include a critical but often under-discussed topic: the health and wellness of our attorneys.
10 SUMMER 2018
BARRISTERS CLUB REPORT
Stow Lake Stampede, April 28, 2018. Photo by K. Ruiz
The important role that mental, emotional, and physical wellness plays in our profession cannot be understated. Yet, according to recent studies, there is lots of room to improve.
If we are serious about identifying ways to move our profession forward, then we must include a critical but often under-discussed topic: the health and wellness of our attorneys.
risks to the struggling individuals themselves and to our communities, government, economy and society.”
A 2016 study conducted by the American Bar Association and the Hazelden Betty Ford Foundation confirmed that there are widespread behavioral health problems in the U.S. legal profession. The study found that over 60 percent of attorneys surveyed experienced anxiety, 45 percent experienced depression, 11.5 percent reported suicidal thoughts at some point during their career, and more than one in five licensed, employed attorneys qualify as problem drinkers.
The empirical data from this study confirmed what many of us have experienced first-hand: that the nature of the profession presents many challenges to promoting and prioritizing health and wellness. The long hours, pressure to perform, and stressful work environments test our ability to focus on taking care of ourselves. Alcohol has played a central role in how we socialize with one another and relieve stress. And the sedentary nature of our work does not encourage physical activity either—most of us are deskbound and sitting inside all day.
Attorney and clinician Patrick R. Krill, the study’s lead author, called the data “alarming,” saying it “paints the picture of an unsustainable professional culture that’s harming too many people. Attorney impairment poses
But where there are problems, there is also opportunity for growth and change. Becoming a more wellness-focused profession begins with a recognition that it is a critical part of our ability to serve our clients, our employers, our THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11
Becoming a more wellness-focused profession begins with a recognition that it is a critical part of our ability to serve our clients, our employers, our families, and our community.
families, and our community. How can we be the best version of ourselves and perform at a high level if we do not take our own health and wellness seriously? The articles in this issue contribute to the growing call to change the way our industry views these issues, and provide practical solutions that will help our attorneys take action. Although each article provides a different take on this important issue, one through-line you will see is that incorporating wellness into the practice comes in many forms and can be accomplished in small ways throughout your workday. We start by highlighting a few attorneys who have prioritized wellness, and they share with us a few tips on how they have done it. This issue also includes excellent information on day-to-day wellness strategies, practicing resilience and mindfulness, and creating a wellness program at your place of work. We face many important challenges as a profession, but working to address this one has the potential to significantly change our professional culture and the way we serve our clients and communities. I hope you will walk away with a few ideas that are simple to implement and help you prioritize taking care of yourself, your colleagues, and your employees. Let’s work together to raise the visibility of this issue in our legal community and find ways to encourage health and wellness among our peers.
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Adam Kaplan Munger, Tolles & Olson Running has been critical to my sanity for at least the past twenty years. While I’m running, I often preview in my head what’s in store for the day or week ahead, but many times I just let my mind wander. It can be tough to get motivated after a night of too little sleep, or when there’s a busy day ahead, or when (as now) I’m still getting over a cold. But I’ve never once regretted a run or workout. No matter what, I’m always happier afterward. And my brain is always less cluttered— which is quite helpful for lawyering. Since I started pushing my children in the running stroller about 3½ years ago, running has also been a great way to hang out with the kiddos in the morning and give my wife a chance to sleep in or sneak in her own workout. More recently, my kids have resisted being pushed in the stroller, insisting that they, too, want to run. I accommodate them on weekends, and let them hop out and run with me for part of the time. I’m more time-pressed during the week though, so more and more of my runs have instead been with our dog. One way that I’ve taken advantage of this new captive audience is by using our runs to practice aloud any presentations that I have coming up. She vetted all of my Barristers Club speeches last year and has silently mooted me for many oral arguments. And when the kids and the dog decide to skip our runs? I’ll be right back in my head for those miles, keeping happy and healthy.
Anjali Kulkarni Duane Morris For me, wellness is about balance. I try to make sure to take time for my personal life, and the things and people who make me feel happy, both with myself and with the world I exist in. I got into CrossFit and Olympic weightlifting several years ago, and find that those activities help me to manage stress levels and give me something to strive for outside of my career. Setting and achieving goals both inside and outside of the office helps to keep me feeling like my life is multidimensional, and I’m not only a lawyer but also an athlete, which is important to me. Another thing I’ve found to be super important is the people I surround myself with. Keeping the people in my life who not only encourage me to be the best version of myself but also consistently support me when I have setbacks and remind me to be kind to myself has been immeasurably beneficial. As attorneys, I think we tend to be harder on ourselves than most people. Having high standards for yourself is obviously hugely beneficial professionally, but so is forgiving yourself for making mistakes, which inevitably happen. I strive to keep balance in my attitudes, interactions and time each day, and that keeps me grounded and happy (mostly).
Tyler Layton Vinson & Elkins Incorporating a wellness routine (in my case, regular physical exercise) into my workweek has markedly improved my job performance, reduced my stress level and increased my overall sense of job satisfaction. Attorneys – especially those in early career – should not think of wellness and self-care as frivolous or a luxury, but rather as important tools to maintain a high level of performance and avoid unnecessary burnout.
I’m an associate at a large law firm in my sixth year of practice. Making the transition from student to legal professional is a stressful process, and working in “big law” brings its own unique challenges. For the first few years of practice, I chose to manage and mitigate my early career anxiety by putting in long hours and focusing on building my skillset, largely neglecting health and wellness. This was effective to an extent in dealing with early career anxiety, but junior associate stress (“can I do this job!?”) is inevitably replaced by mid-level and senior associate stress (“can I do this job for another 30 years!?”). I realized that hard work and skill-building, without more, would not prevent burnout. Fortunately for me, my wife is a clinical psychologist, specializing in treating stress and anxiety issues. She’s an advocate for wellness and self-care, and in my fourth year of practice, I took her advice and got into the gym. Regular physical exercise has been a game changer for me (I enjoy CrossFit, but I’ll spare you the sermon). Making time in my workday for exercise has lifted my mood (physical activity stimulates the release of dopamine, norepinephrine and serotonin) and has improved my diet and the quality of my sleep. The cumulative effect has been a reduction in my stress level, particularly around work issues. I feel better equipped to deal with the rigors of the profession in the short and long term. Early career attorneys can borrow a lesson from the world of competitive cycling. Any good training plan will emphasize rest, recovery and nutrition alongside high-intensity training. A racer will not be competitive unless she takes rest days, monitors her health and nutrition, gets proper sleep (even the occasional midday nap!) and generally takes steps to avoid physical and mental burnout. A legal career is a long and sometimes grueling race; take a lesson from the peloton and take care of yourself along the way. Drew Amoroso is the President of the Barristers Club and founder of Move Associates, a company that helps law firms train their associates to achieve their performance and productivity goals, accelerate their professional development, and add value to the firm and its clients. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 13
Celebrating 60 years of appellate advocacy.
As the largest boutique law firm in the U.S. dedicated to civil appeals and trial consulting strategy. . .
Section membership A VITAL PART OF YOUR PRACTICE
As a BASF member, sections give you an excellent way to meet other members, share expertise, and improve the practice of law. Section membership offers these invaluable benefits: Take a leadership position—build your professional brand Opportunities to deliver programs as a subject matter expert Continuous learning and skills advancement opportunities Access to over 200 in-person and 700 online MCLE programs Recorded seminars in digital formats for self-study credit Want to add a section to your membership?
14 SUMMER 2018
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SAVE T H E DATE
Annual Gala of the Justice & Diversity Center of the Bar Association of San Francisco Thursday, September 27, 2018 6:00 – 9:00 p.m. Bently Reserve, Banking Hall 301 Battery Street, San Francisco
2018 SPONSORS
(as of May 17)
Arnold & Porter Kaye Scholer AT&T Baker Botts Bank of America Coblentz Patch Duffy & Bass Durie Tangri Farella Braun + Martel Galek Law Hanson Bridgett Keker Van Nest & Peters Law Office of James Leigh Morgan Lewis & Bockius Morrison & Foerster O’Melveny & Myers Pillsbury Winthrop Shaw Pittman Polsinelli Rosen Bien Galvan & Grunfeld Seyfarth Shaw Shartsis Friese Shearman & Sterling Wilson Sonsini Goodrich and Rosati Foundation Arthur & Charlotte Zitrin Foundation
Join us for the Annual Gala of the Justice & Diversity Center, raising funds for pro bono legal services and diversity educational programs. Catch up with friends and make new connections in the San Francisco legal community. Enjoy gourmet hors d’oeuvres, open bar, and live music.
More details and sponsorship opportunities at
www.sfbar.org/gala
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 15
Supporting Pro Bono Legal Services Programs that provide access to justice for thousands of San Franciscans every year
The Justice & Diversity Center’s 11th Annual
BIKE-A-THON/ WALK-A-THON Saturday, July 14, 2018 Crissy Field, San Francisco Registration: 10:00 a.m. Ride/Walk:10:30 a.m. Picnic:12:00 p.m. Questions? Email bike@sfbar.org
2018 Sponsors
Don’t miss out! Join us for a fun, family-friendly fundraiser that supports the legal services programs of the Justice & Diversity Center. Law firm and corporate teams, as well as individual participants, choose from novice or advanced cycling, running and walking routes.
as of May 17, 2018
Sign up at www.sfbar.org/bike 16 SUMMER 2018
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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 17
LET’S LOSE THE BOOZE
Rethinking Networking Events Kathleen Guthrie Woods
B
urned out after a long, stressful day? Unwind at happy hour. Presenting a difficult case in court? Here’s some liquid courage. Need to introduce new associates to your clients? Host a networking event with an open bar.
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Alcohol consumption and events built around alcohol are ubiquitous components of the legal profession, but the consequences are far from happy for the lawyers, judges, and law students who suffer from alcoholism. “Every year, we beat out every other profession with the highest rate of drug abuse and alcoholism,” says David Mann, a former criminal defense practitioner who serves as Northern California consultant to The Other Bar, a free and confidential service that offers a hotline and peer support meetings throughout the state. Bar associations and firms have recognized the need for change, with the American Bar Association’s (ABA) National Task Force on Lawyer Well-Being (August 2017) acknowledging the need for social networking events as well as recommending “deemphasizing alcohol at such events.” “This is a conversation we need to have,” says Drew Amoroso, CEO of Move Associates and current President of the Bar Association of San Francisco’s (BASF) Barristers Club. “We’re required to take substance abuse courses, but I’m not sure we’re doing enough to get in front of this.” Under immediate past president Adam Kaplan and Amoroso’s leadership, the Barristers Club board identified things they wanted to focus on, and health and wellness topped the list. Their brainstorming sessions led to their rethinking client-facing and networking events to incorporate outdoor and family-oriented activities. For example, in April of this year, the Justice and Diversity Center (JDC) and the Barristers Club cosponsored the Impala Racing Team’s Stow Lake Stampede 5K in Golden Gate Park, with BASF/JDC staff and members participating as runners and spectators. “We can come up with ways to connect with other people without having alcohol there,” says Amoroso, whose company helps law firms train their associates and emphasizes the need for creating work-life balance. “Studies
“When I was a summer intern at big firms in the 1980s, at lunch we had three drinks. It was as if they wanted to see how we’d handle our booze and still get work done.” David Mann
come out all the time about the benefits of rest, meditation, and exercise,” he says, so it makes sense that, in our efforts to take better care of our physical and emotional well-being, we’re also considering if it’s time to lose the booze from our social events.
Attorneys and Alcoholism Alcohol is used as a social stimulus—making it easier to bond with people or for celebrating an occasion—and as a sedative to numb the anxiety inherent in the legal profession. “There are weird things about practicing law,” says Mann, who has been clean and sober since 1998 and teaches an MCLE class on substance abuse. Attorneys he’s talked to mention things like the pressure to succeed and the adversarial nature of the work that drives students and practicing attorneys to abuse performance-enhancing substances. “I hear ‘I started cocaine to write a brief and had a deadline’, or ‘I took Valium because I was nervous about appearing in court and I needed to calm down,’” he says. “If you spend all day doing work you find meaningless, or that doesn’t comport with your values, you feel crappy about yourself and want to turn your brain off, so you go home and have a triple scotch.”
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19
Impressions from the 2018 Stow Lake Stampede. Center photo, from left, BASF/JDC’s Carole Conn, Director of Public Service Programs; Carlos Pinzon-Hamilton, Senior Immigration Coordinator; and Valerie Anne Zukin, Lead Attorney Coordinator. Photos by K. Ruiz
It’s easy to argue that the cultures in other professions are also high-stress, and they too host social events fueled by alcohol. Go to any industry conference, flip over your name tag, and you’re likely to find drink tickets tucked into the plastic sleeve. What’s different, says Mann, is that “we have more alcoholism.” The statistics are staggering. Results from a national study published in 2016* indicated that 21 to 36 percent of then-currently employed attorneys “drink at levels consistent with alcohol use disorder.” That percentage was three to five times higher than the occurrence in the general population. [To learn more about this, read “Substance Abuse: It Can (and Does) Happen to the Best of Us” by Leslie A. Gordon in San Francisco Attorney (Fall 2016)]. The pressure starts in law school. The ABA’s 2016 National Task Force on Lawyer Well-Being discovered 25 percent of surveyed law students were at risk for alcoholism. “When I was a summer intern at big firms in the 1980s,” says Mann, “at lunch we had three drinks. It was as if they wanted to see how we’d handle our booze and still get work done.” What makes lawyers more prone to alcoholism? “For a lot of lawyers, problems developed long before they became attorneys,” Mann says. “We are predisposed by personality to be susceptible.” He references the 2004 book Lawyer, Know Thyself: A Psychological Analysis of Personality 20 SUMMER 2018
Strengths and Weaknesses by Susan Swaim Daicoff. “The personality traits of attorneys—ego-driven, controlling, highly intelligent, competitive, pessimistic—are identical to alcoholics,” says Mann. So the same characteristics of people who are attracted to the legal profession, the theory goes, also puts them at risk for what Daicoff calls the “tripartite crisis” of professionalism, public opinion, and lawyer dissatisfaction and dysfunction. Yet denial reigns. “I’ll never forget my very first networking/ CLE event as an attorney,” says Omar Parra, an attorney at Haight Brown & Bonesteel. “It was on substance abuse— and there was an open bar.” Parra currently serves on the Executive Committee of the Barristers Club’s Litigation Section. He helps plan CLEs, and the topics they are developing include encouraging mindfulness and mental wellness. They are also exploring alternatives to typical networking and social events.
Planning Alcohol-Free Events While the move toward alcohol-free events isn’t yet a trend, Paige Buck, a partner at San Francisco–based Kennedy Events, says, “I think the industry has some catching up to do with this challenge.” Maggie Spicer, founder and
director of Whisk, a San Francisco–based events and experience agency, notes that many of their tech clients have booze available at happy hours held in the office, therefore “alcohol is not as much of a draw when they come to us for events,” she says. Furthermore, “alcohol doesn’t necessarily build lasting bonds.” Both women shared success stories from alcohol-free events their firms created recently. “One of our most popular events is a match-making luncheon,” says Buck. “We have a junior associate sit down with a partner or general counsel.” Spicer’s agency has developed classes and workshops where guests can mingle while learning chocolate truffle-making, screen printing, pickling, or magic tricks. “This was intentional,” she says, “to get team members bonding over shared values and interests, rather than through the loosening effects of alcohol.” Breakfast and lunch-time events, typically sans alcohol, are also popular, and planners are getting more creative about how they break the ice and encourage bonding. For one breakfast, Spicer’s team asked guests to respond in advance to the following: Night owl or early bird? Bar soap or shower gel? Dinner leftovers for breakfast, yes or no? Attendees’ nametags included their preferences, says Spicer, which “helped folks to loosen up first thing in the morning
“There’s a ride for every cause, and it’s a great way to support a good cause and to network.” David Reidy
without having to ask people about what they do for work or where they work.” Fitness enthusiasts tout the benefits of combining active lifestyles with their networking. “A unique aspect of running with people is it’s not a solo endeavor,” says Jennifer Redmond, a member of BASF’s Board of Directors and member of the Impala Racing Team. “You spend a tremendous amount of time with them, maybe running ten THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21
miles or driving to and from a race. It tends to promote intimacy and also exposes you to people outside of your circle.” A partner at Sheppard Mullin, she mentions having recently been introduced to a new client and discovering they were both runners. “It creates a bond you wouldn’t otherwise have.” David Reidy, a partner at McGuireWoods and member of JDC’s Board of Directors, found a similar dynamic in cycling. “There’s a ride for every cause,” he says, “and it’s a great way to support a good cause and to network.” McGuireWoods has supported a ride benefiting a foundation for the past several years, an event Reidy says also engages family members. “Some rode bikes, some volunteered,” says Reidy. “It’s a great way to socialize and meet new people.” Back at the office, there’s more employers can do as well. “Emphasize and teach wellness on a day-to-day basis,” says Amoroso. He suggests encouraging interactions around step challenges (utilizing Fitbit trackers), walking meetings, lunches outside, or starting a breakfast meeting with a led meditation. Individuals can also move toward wellness and away from alcohol temptations with small changes. “If someone asks, ‘Let’s get a drink,’” Buck suggests, “reply with, ‘How about we meet for coffee?’”
BASF is Leading by Example “It’s important that we lead by example,” says Parra, and there are a number of events on BASF and JDC’s calendar that focus on bringing attorneys together for networking, family fun, and sports. On July 14, the 11th annual Ride for Justice Bike-A-Thon will raise funds to support the legal services program of JDC. Individual cyclists, some riding with teams, head over the Golden Gate Bridge and out to Marin via a 12.5-mile route or join Team Tam for a rigorous 30-mile loop that climbs Mt. Tam. Family members, friends, and other noncyclists may choose to participate in a 1.5-mile walk-a-thon 22 SUMMER 2018
around Crissy Field and the Marina Green. “Bring the kids and hang out!” says Reidy, a recreational rider who brought his riding group to the 2017 event and looks forward to this year’s event. “The emphasis,” he says, “is raising money and getting out there. It’s not competitive.” If basketball is your sport, plan to participate in the second annual Hooplaw Tournament, scheduled for August 25. A side benefit of moving events out of the bar is favorable visibility. Shepherd Mullin participated one year in San Francisco’s Pride Parade. “T-shirts were made, and clients were into it,” Redmond says. For the 2018 Stow Lake Stampede, Steve Love, JDC’s Director of Donor and Community Engagement, and the Barristers worked with immigration staff to set up an information table. “A lot of our members are interested in immigration issues, so this was a way to bring the message to a broader community,” says Redmond. “It was a win-win for everybody.” Win-win. That’s what we are hoping for in our efforts to rethink networking. By being aware of and planning events for our audience, by being mindful and offering alternatives to alcohol-focused events, and most important, by encouraging others to seek help for problem use, the legal profession will be the better for it. Kathleen Guthrie Woods and her husband are training to participate in this year’s Ride for Justice. Come ride with us! * See “The Prevalence of Substance Abuse and Other Mental Health Concerns Among American Attorneys” by Peter R. Krill, Ryan Johnson, and Linda Albert, Journal of Addiction Medicine January/February If you need help with alcoholism, drug abuse, and related personal problems, The Other Bar is open to all California lawyers, judges, and law students. Services are free and are provided in strict confidentiality. Call 800-222-0767 (24 hours a day) or visit otherbar.org.
The Bar Association of San Francisco invites you to attend
Friday October
26
Friday October 26, 2018 11:00 a.m. - 8:00 p.m. Presidio Golf Course 300 Finley Road San Francisco
G N I T T P UFOR THE E N I L E PIP Putting for the Pipeline is a charity golf tournament that benefits educational programs and diversity
10th
Annual
initiatives of the Bar Association of San Francisco and the Justice & Diversity Center. More details and sponsorship opportunities at www.sfbar.org/golf
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 23
12 STEPS TO A HEALTHIER AND HAPPIER LAW FIRM Amy L. Greywitt
I
t is no secret that lawyers—and especially lawyers at law firms— have a reputation for unhealthy lifestyles. This includes being sedentary, staring at a screen all day, exhibiting high stress levels, over-caffeinating, eating unhealthy foods, and, in some cases, even abusing alcohol or drugs to unwind.
Forward-thinking law firms are working to change the culture of the legal practice into one that is healthier and happier. There are myriad benefits to focusing on promoting health and wellness in a law firm environment. Studies show that a workplace wellness program leads to fewer absences, increased productivity, improved employee satisfaction and retention, as well as reduced health insurance costs. There almost certainly is room for improvement in the health, wellness, and mindfulness at your law firm or workplace.
24 SUMMER 2018
Here is a list of 12 ideas that you — yes, you — can initiate in your workplace.
1
If your law firm does not have a health and wellness committee, start one. Employees need to have an outlet to express concerns and ideas related to improving their health and wellness, and this is where everything starts. Ask your firm’s management committee for a budget. Take a survey of the changes that you and your employees would like to see in your firm’s culture and benefits. You may have to start small, but over time, change is possible.
2
Take a look at the nutrition available to employees during the workday. Food is what fuels the body and mind to do its best work. Make sure quality fuel is available to yourself and your colleagues. If your law firm provides food, snacks, or beverages, take a look at the options and see what can be made healthier. For example, swap out the cookies, chips, or candy in the kitchen cabinet for nuts, protein bars, and, if possible, fresh fruit or yogurt in the fridge. If your firm offers donuts or pastries in the morning, see if the options can be varied to include fruit, oatmeal, fresh squeezed juices, or smoothies.
3
Bring in beneficial beverages. If your law firm provides beverages or has vending machines, swap out some or all of the soda options for sparkling water and unsweetened iced tea. Ensure that non-dairy options such
as almond or soy milk are available for employees with lactose sensitivity, or for those who simply prefer to eat a plant-based diet.
4
Evaluate the ergonomic options to employees. Find out if your firm can subsidize standing desks, or, at the very least, provide information to employees to streamline the process to obtain a standing desk. The ability to switch between sitting and standing throughout
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the day improves circulation and posture and thwarts back pain often associated with being sedentary and slumping over a keyboard. Line up a specialist on an annual or more frequent basis to conduct ergonomic assessments with employees to ensure proper positioning of the keyboard and mouse, desk height, and chair settings to avoid carpal tunnel syndrome, back pain, and a host of other problems stemming from poor ergonomics.
Studies show that a workplace wellness program leads to fewer absences, increased productivity, improved employee satisfaction and retention, as well as reduced health insurance costs.
5
Share a treadmill desk. Although law firms may not be on board to pay for treadmill desks for employees, it is a much easier sell to convince a firm to implement one or two shared treadmill desks in a visitor office or cubicle where attorneys or staff can go to dock their computers and work while walking. For logistical purposes, it helps to include the treadmill desk in the firm’s room reservation system so that employees can reserve it in advance-for instance, to walk during long conference calls or tedious document reviews.
6
Implement a firm-wide walking challenge. One of the best ways to get people moving and active is to create a friendly competition. There are several vendors that provide platforms for employees within an organization to track steps, form teams, and compete with
26 SUMMER 2018
one another to log the most steps. Most of these platforms now automatically sync with all kinds of step-tracking devices and watches, including apps that employees can download for free on a smartphone, so the cost to the firm need not necessarily include purchasing pedometers. Run the program for six to eight weeks and give out incentives for those logging the highest number of steps, or demonstrating the most improvement.
7
Start a weekly or monthly yoga program. Many firms are now offering yoga classes during the workday. Several companies, such as Office Yoga, specialize in workplace yoga classes. Book a trial class, reserve a conference room, clear the tables, and gauge interest. If people like it (which they most likely will), lobby for the firm to fund the program. Yoga increases strength and flexibility, reduces stress, and is an awesome way to unwind after a stressful day.
8 9
Enjoy exercise with colleagues. Rather than hitting happy hour to consume alcohol and unhealthy food, gather your colleagues for a run on the Embarcadero, or join a class at a group fitness studio. Register a firm team for a walking or running event for a good cause. Pick something accessible with various options for distance and intensity so that your colleagues newer to fitness feel welcome to participate. The added benefit of choosing an event for a cause that you or one of your colleagues is passionate about will help incentivize participation.
10
Focus on mindfulness with a meditation program. Starting a monthly meditation program is a great first step to improving mindfulness in the workplace. Bring folks in your firm together once a month for a short meditation session. Taking time to quiet the mind and focus on one’s breathing over time helps attorneys and staff to respond to stressful workplace situations with equanimity. You can simply gather and follow guided
meditation videos available for free online, or you can check out Unplug Meditation or YogaGlo for a very affordable monthly subscription to guided meditation videos.
11
Ask for an employee budget for fitness activities or negotiate subsidized membership options with local gyms for members of your organization. Even if it is a small amount of savings, humans are hardwired to take and use money given to them for a particular purpose, rather than lose it. The idea of getting a small monthly or annual subsidy for fitness expenses—use it or lose it—may be just enough to persuade folks to get active. This approach may be preferable to a subsidized gym membership simply because everyone resonates with different types of fitness activities, which can be very diverse (e.g., yoga, rock climbing).
12
Bring in speakers on health and wellness topics of interest. If your firm has lunches with speakers on occasion, see if you can book a registered dietician for a cooking demonstration or a mindfulness speaker to discuss the benefits of breath and meditation. This will change things up and increase employee awareness and stimulate further conversation about health and wellness. It can be a challenge to change institutional norms and you may face adversity. But you may also be surprised that your law firm is just as eager as you are to improve the health and wellness of lawyers and staff and is ready to support efforts to make your law firm healthier and happier.
Amy L. Greywitt co-founded the health and wellness committee at her former law firm, Munger Tolles & Olson, and is now a yogini, fitness enthusiast, and owner of Metta Yoga Studio in Marin County.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 27
TRAIN BRAIN YOUR
RESILIENCE TOOLS FOR LAWYERS Fairuz Abdullah and Annabrooke Temple
D
o you remember the movie Groundhog Day? Bill Murray’s character wakes up each morning to his alarm clock playing “I Got You Babe” and he realizes, with dread, that he is about to re-live February 2, again. Have you ever had that feeling—when you know what’s about to happen: you know you shouldn’t respond with anger, or sarcasm, or by withdrawing from the situation (insert your go-to response to stress here), but you feel powerless to stop yourself?
28 SUMMER 2018
You’re only human. It happens to all of us. Your typical response is your brain’s well-worn path of least resistance. Unless you have the insight and tools with which to change your default response, you will likely keep doing the same thing, whether it is losing patience with your child for being slow in the morning, or getting anxious when your boss is short with you. There is hope! You can make new pathways in your brain, resulting in different, more positive and productive responses. To do so, you have to be aware of your emotions and triggers first. Is self-awareness not your strong suit? Try noting your emotions in your calendar (emojis are fine) Irritated during a meeting? Elated after a presentation? Write it all down.
This will help you identify tricky situations. Then you will be ready to employ some tools to break the Groundhog Day cycle and start creating some new, and healthier, patterns. Drs. Karen Reivich and Martin Seligman, leaders in positive psychology at the University of Pennsylvania, have designed day-saving interventions called Real-Time Resilience (RTR). These interventions are actions you can take every time you notice yourself about to be triggered by a situation. They allow you to respond thoughtfully, with control. Real-Time Resilience trainings have been adopted and employed by the US Army as part of its Comprehensive Soldier Fitness program since 2009. What works for soldiers and their families, works for lawyers and law students too. The three RTR interventions
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 29
we use most with the law students, attorneys, and clients we counsel are the ABCs, Thinking Traps, and Detecting Icebergs. A fourth technique, not part of RTR but also effective, is the Mantra.
Know Your ABCs A stands for Action. B stands for your Belief about the action. C stands for the Consequence—and here’s the key: C results from your beliefs about the action, not the action itself. Let’s say your colleague fails to say “Good morning” to you (A). You believe your colleague is ignoring you on purpose (B). The consequence is that you think your colleague is upset with you, and you assume it has to do with the draft you turned in last night (C). You could go down a rabbit hole of assumptions, irritation, and stress, right? But if you are equipped with RTR, you would identify your Beliefs and thoughts about the Action, and spare yourself the Consequence. You don’t know why your colleague didn’t say “Good morning.” Your beliefs would cause the resulting emotions (irritation and stress, in this example), not the action itself. Next time you are in a stress-causing situation, take a moment to identify the action, and your belief about the action. Analyze that belief. It probably will not survive close inspection, and you may spare yourself the consequential stress. 30 SUMMER 2018
Thinking Traps Thinking traps are counter-productive thinking patterns. Learning to avoid them is another useful RTR technique. Each of us is prone to some thinking traps more than others. Again, self-awareness is key. When you know which thinking patterns are most likely to trap you, you can use mental cues and critical questions to snap out of the trap. Here are some commons traps and their related RTR interventions: • Thinking trap: jumping to conclusions (in the above example, assuming your colleague is mad at you for something you did.) RTR: Slow down! Ask yourself: what’s the evidence for my conclusion? • Thinking trap: mind reading (in the above example, assuming you know why your colleague didn’t say good morning.) RTR: Speak up and ask for information. • Thinking trap: Me, Me, Me (“It’s all my fault.”) RTR: Stop navel-gazing and look outwards. How did others and/or circumstances contribute to this situation? • Thinking trap: Them, Them, Them (“It’s all their fault.”) RTR: Look inward. How did you contribute to the situation?
• Thinking trap: Always, Always, Always (“This always happens to me.”) RTR: What’s changeable? What can you control? You will likely be tempted by a thinking trap today. Catch yourself, and employ one of these RTR interventions.
Detect Icebergs Have you ever blown up at someone over something that struck others as minor? Given that you are otherwise mentally fit, you were likely triggered by what Dr. Reivich calls an “iceberg.” An iceberg is made up of core beliefs about how the world operates, and how you operate in it, that fuel out-of-proportion emotions and reactions. Common icebergs include “only weak people ask for help” and “I should succeed at everything I try.” Exploring the iceberg is the best way to lessen its power over you. Next time you feel yourself getting overly worked up about something, try to identify the iceberg. Ask yourself: What does that mean to me? What is the worst part of that for me? Assuming that is true, what about that is upsetting to me?
Once you have identified your iceberg, think about whether you still believe in it. Maybe you no longer hold those beliefs, and your reactions are just habitual. If you do still believe in it, is the iceberg causing you to be overly rigid in some situations? Is your iceberg harming you sometimes? What can you do to change your reactions to make these trigger situations go better for yourself and others?
The Mantra Have you ever been told that you couldn’t do something because you were lacking in some way? Did you the push those negative messages out of your mind? Did you replace those messages with thoughts that helped you reach your goal? If so, you have employed controlled use of attention. Negative thoughts and emotions tend to settle in our mind, coloring how we look at the world, and holding us back. Shifting our attention to a positive thought pattern moves us forward. One way to employ controlled use of attention is through the use of a mantra. You may already have one. Do you have a phrase that motivates you, that you find yourself repeating? If you have one that works, great.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31
If not, here are some mantras to help you get started: • Don’t play small (your opinions and views count, don’t be afraid to share them). • There is no such thing as perfection (take the first step, waiting for perfect won’t move you forward). • Carve your own path (find a way that is yours, not what others have defined). • Go for it! (if you don’t someone else will. Might as well take the risk).
• It’s never too late (the past is the past, you create your own future). Incorporating RTR and a mantra can combat the conflict, stress and uncertainty of daily life. By disrupting counterproductive thought patterns, you will re-frame how you view everyday encounters and interactions. Give it a try. You may be surprised and relieved to realize you can break out of old, painful patterns. Goodbye, Groundhog Day! Fairuz Abdullah is the Director of Public Service Programs and Annabrooke Temple is the Director of Professional Development at UC Hastings College of the Law. They are co-founders of Outlaw Coaching, www.outlawcoaching.com.
The Integrated Lawyer A Symposium on Wellbeing and the Practice of Law January 10–11, 2019 UC Hastings College of the Law Hosted by the UC Hastings Center for Negotiation & Dispute Resolution and the Career Development Office
This symposium provides a forum for sharing insights, research, practical tools and innovative approaches for promoting the development of wellbeing from a ‘whole lawyer’ perspective. There is significant evidence that personal wellbeing affects the quality of professional legal practice and work life satisfaction. Lawyers are reported to have high rates of anxiety, depression, substance abuse, and dissatisfaction with professional life. There is also evidence that habits and ways-of-being developed during law school are contributing factors. Participants will be invited to explore the domains of emotional, social, physical, spiritual, and cognitive wellness with the overall goal of introducing lifelong approaches for thriving within the legal profession. Content experts from the various domains will present on ways they are using their expertise to develop wellbeing with law students, practicing attorneys, mediators, and others.
Learn more and Register at uchastings.webconnex.com/TIL 32 SUMMER 2018
A program of the Bar Association of San Francisco and Orrick, Herrington & Sutcliffe
14th Annual
Bay Area Diversity Career Fair
SCHEDULE:
Friday, July 27 Panel Discussion and Employer and Student Welcome Reception
July 27−28
4:30 p.m. Panel Discussion for Registered Students (only) 5:45 p.m. Employer and Student Welcome Reception
The Bay Area Diversity Career Fair brings together prominent law firms and government legal departments in the San Francisco Bay Area with highly-qualified diverse second-year law students. Participating students come from distinguished local law schools, as well as other top schools from around the nation to interview for coveted positions in summer associate programs. Last year, the Bay Area Career Fair drew over 300 diverse law school students, who met with more than 60 legal employers for a total of over 1,100 scheduled interviews.
Location: Orrick, The Orrick Building, 405 Howard Street, San Francisco, CA
Saturday, July 28 Bay Area Diversity Career Fair
Don’t miss out - participate:
9:00 a.m. − 6:00 p.m.
EMPLOYERS: To participate as an interviewer, contact registration@orrick.com
(prescheduled interviews) Location:
Please also consider sponsoring the event. Sponsors receive recognition in our publications
Hilton, San Francisco Financial District,
and at the event:
750 Kearney Street, San Francisco, CA
2018 SPONSORSHIP OPPORTUNITIES
Event Code: G187002
• Student Breakfast – $2,500 • Student Internet Cafe – $2,500 • Student Luncheon – $2,500
Students and Employers
SPONSORSHIP BENEFITS
who want to sign up, email
• Prominent on-site signage
registration@orrick.com.
• Recognition in BASF publications
For general career fair
• Recognition on BASF social media platforms
information, please visit To take advantage of one of the sponsorship opportunities, please contact BASF/JDC Executive Director Yolanda Jackson at events@sfbar.org
www.sfbar.org/careerfair
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 33
CUT BACK ON DESK
ACHES & PAINS Caroline Jordan
34 SUMMER 2018
Spending too much time sitting in your office chair is dangerous, yet so many of us are pulling crazy hours at work, and our health is paying for it. Too much sitting has been linked to a higher risk of heart attack, stroke, metabolic syndrome and premature death1. Unfortunately, even the most dedicated exercise regimens won’t undo all of the damage2. At the same time, desk job related injuries are on the rise, including carpal tunnel syndrome, tennis elbow, frozen shoulders, wrist strain, neck and shoulder pain, sciatica, hip and lower back pain. We are built to move. Stress and not moving are hard on our bodies and health long-term. 99 percent of my corporate clients struggle with pain from spending too much time at a desk and dealing with workrelated stress. Luckily the solution is simple and does not require a ton of time. Simply taking the time to move will dramatically improve how your body feels.
Use these Easy-to-Implement Tips to Feel Better Fast: • Take five minutes in the morning to stretch, breathe, and move your body. If you start your day in a stressful way, you will likely feel stressed for the rest of the day. Do just five minutes of movement in the morning to start your day with energy. Side bends, squats, downwardfacing dog—whatever feels good to you. Starting your day this way will make you feel more relaxed and focused. • Move every hour. Aim to get up and out of your seat at least once every hour. Even if you just swing your arms or take a deep breath, you will feel more alert. • Fit in stretching and strength exercises intermittently throughout your day. Stretch the front of your body
(hip flexors, shoulders, lower back, hips, and chest) and engage the back of your body (upper back, core, and glutes.) • Walk as much as possible. Hand-deliver reports or discuss an issue in person instead of via email. Researchers found that adding two minutes of light exercise to each hour of your day lowers your risk of dying prematurely by 33 percent. • Wear comfortable shoes to work (or even walk to and from work) if you can. Keep a pair of dress shoes with you or in the office and wear them only when necessary. • Fill your water bottle. Replenish it often. (This might result in a few extra trips to the bathroom, but that gives you even more opportunity to move!) Stand up and take the long way to the water cooler.
We are built to move. Stress and not moving are hard on our bodies and health long-term.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35
• Alternate your time in your desk chair by sitting on an exercise ball or using a standing desk. This will allow you to give different body parts relief from extended time in one position.
• Make working out accessible. Work out outside, in the hotel, or at home. Sometimes getting to the gym simply is not an option, but that does not have to stop you from getting some exercise.
• Use the restroom on another floor and take the stairs.
• Have walking meetings. Invite colleagues to join you on a walking meeting or take your calls on a headset so you can move around while you talk. Researchers at Stanford University found that the creative output of people increases by an average of 60 percent when they are walking. Indoor walks were found to be just as effective for boosting creativity as outdoor walks. Get “sweatworking” and find a way to incorporate movement into your meetings.
• Use an activity tracker to keep count of how many steps you take. Working with a step counter or a more sophisticated activity tracker can tell you exactly how active you are during your work hours. Aim for 6,000 to 10,000 steps each day. You can even make it an office team effort by inviting your colleagues to a workweek walking challenge. • Eat your lunch away from your desk. Walk to a restaurant or go to a nearby park. Enjoy a longer route back to the office when you are done. • When you are too busy for a workout, find five minutes to move. Do it at the office, right when you get home, or even while waiting for the bus. Any time is better than no time when it comes to moving for energy and pain relief.
• Set alarm reminders to move your body. A good goal is to incorporate small exercises, like stretches, every 30 to 40 minutes, and larger exercises, like walking around the office or taking the stairs, every 90 minutes. Never go two hours without moving. Want more? Visit YouTube and stay fit at work with the Corporate Wellness Videos in this playlist: http://bit.ly/ corporate-wellness-videos .
Want more? Check out Caroline Jordan's best office exercise routine: http://carolinejordanfitness.com/best-office-exercise-routine/
36 SUMMER 2018
Next time your back is stiff or your mood needs a boost, pause and take a moment for a little dose of movement. A little bit goes a long way and can dramatically affect your energy, mood, and performance. Caroline Jordan is a San Francisco–based Fitness Expert, Corporate Wellness Consultant, and Health Coach on a mission to help you develop a positive relationship to self and exercise that adds to the quality of your life. Through her services, products, events, videos, and writing, you will learn how to challenge yourself in a healthy way and explore your full potential. She can help teach you how to drop the extremes, create lasting lifestyle change, and feel good in your skin. www.carolinejordanfitness.com
1. Sitting At Work: Why It’s Dangerous And What You Can Do, Huffington Post, 2014, retrieved from https://www. huffingtonpost.com/2012/07/24/sitting-at-work-why-its-dangerousalternatives_n_1695618.html 2. Why not even exercise will undo the harm of sitting all day—and what you can do about it, Hanna Newman, Quartz, 2014, retrieved from https://qz.com/223160/why-not-even-exercise-will-undo-the-harm-ofsitting-all-day-and-what-you-can-do-about-it/ 3. Stanford study finds walking improves creativity, May Wong, Stanford News, 2014, retrieved from https://news.stanford.edu/2014/04/24/ walking-vs-sitting-042414/
Second Annual
2018 HOOPLAW Basketball Tournament
Sunday, August 25, 2018 Ruth Asawa School of the Arts (SOTA) Gym 555 Portola Drive, San Francisco
www.sfbar.org/hooplaw
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37
MINDFULNESS IS A SUPERPOWER FOR LAWYERS Eight Steps to Happiness and Effectiveness Judi Cohen
Few tools are as important as mindfulness to your effectiveness and wellbeing.
38 SUMMER 2018
P
racticing law is powerful, and practicing mindfulness is a powerful addition to your legal toolbox. It’s like having a superpower: you’re the one who can bring calm, focus, and wisdom to even the most explosive situations, with a minimum of stress.
That’s because when you practice mindfulness, you are aware of how the mind works. You are no longer trapped by reactivity. You develop positive, productive habits. Few tools are as important as mindfulness to your effectiveness and wellbeing. So what is mindfulness? It’s not about telling your assistant to be mindful to file the motion. It’s the ongoing practice of present moment awareness, even when things are difficult. It contains an ethical component, and it requires some work.
Legend has it that mindfulness began 2,600 years ago in India, with Siddhartha Gautama, later known as the Buddha. Exploring the intricacies of the human mind, Siddhartha figured out some things about life: The first thing is that life is full of problems, which is also certainly true of the practice of law. But the second thing is that the problem isn’t the problems; the problem is the untrained mind. Persistent worry, rumination, avoidance, resentment, and anxiety arise and stick because the mind is not trained in present moment awareness. In the absence of such training, the mind defaults to a common human state: wanting things to be different than they actually are.
This ‘wanting’ falls into four categories: 1. Wanting something you don’t have in the moment (a bigger book of clients, more time with your kids) 2. Not wanting something you do have in the moment (a difficult colleague, a bum knee) 3. Wanting to become something you’re not, yet (a partner, a better friend) 4. Wanting to be less of something, right then (anxious, depressed) The good news, and the third thing Siddhartha figured out, is that you can train your mind in present moment awareness: to want and not-want much less, and instead to be calm, focused, and positive, no matter what is happening.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39
Mindfulness meditation provides insight into how your mind is working in the moment, so you don't walk into a meeting unaware that anger is driving you.
thought. You probably spend more time than that shopping on Amazon. Contemplative neuroscience confirms that if you meditate instead, you can literally change your mind. Isn’t that better than a new pair of shoes? Three: Relax while you are meditating. Breathe, settle in, shift away from thinking and worry, and you will experience what you already knew: that a relaxed mind is better able to concentrate than a stressed mind. Once you manage that shift a few times, you will be able to relax your mind on demand, when you need it the most, in the present (stressful) moment. Four, Five, and Six: Be mindful of the things you say, do, and work on.
There Are Eight Steps to This Training One: Learn mindfulness meditation. It’s simple and rewarding. Because of its tendency to stabilize and focus the mind, it actually gives back much more time than it takes. It provides insight into how your mind is working in the moment, so you don’t walk into a meeting unaware that anger is driving you. And it provides you with a laboratory in which to try out various new states of mind like patience, attunement, and self-compassion. Two: Put some effort into your meditation practice. Meditate six or twelve minutes a day to start – that’s just 0.1 or 0.2 hours, respectively. Over time, you will develop a calmer, steadier, more focused mind, and the ability to employ intentional states like patience, not in a theoretical sense, but on the ground, in the moment, when you need them the most. And you will realize that, although your job is to think things through, you don't have to believe every thought you have. For example, right now you may be thinking you don’t have six or twelve minutes to spend meditating. Challenge that
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Meditation is solitary mindfulness practice. You may meditate with others, which is a great support, but meditation is fundamentally a solitary investigation. Being mindful in everyday life is the portable aspect, and occurs when you are interacting with others. Sometimes, portable mindfulness arises as a result of solitary mindfulness. For example, if you notice while meditating that the thought of an aggressive colleague makes you tense and anxious, you can practice relaxing when that thought arises. Repeating that practice actually carves new neural connections in your mind, making it very likely that, over time, you will relax automatically when you see your colleague. In addition, portable practice is also about following a set of ethical guidelines for communicating, going about your day, and working. For example, mindful communication is not saying, writing, or posting anything false, malicious, harsh, or gossipy. Try that today and you will probably feel pretty great tonight, knowing you have been truthful, kind, and thoughtful all day. Mindful communication also offers a solution for delivering bad news. Delivering bad news mindfully means delivering it at a thoughtful time, truthfully, gently, and as a benefit
GET STARTED WITH THIS EASY MEDITATION 1 Find a quiet place. Set a timer for 0.1 hours (6 minutes). 2 Take a comfortable, upright seat. Close your eyes. 3 Gently bring your attention to the sensation of sitting. Take a moment here. 4 Now shift your attention to the sensation of breathing. Keep your attention there. When it wanders, which everyone’s will, simply come back. 5 Over and over, return your attention to your breath. 6 Do this with an abundance of kindness. Slowly but surely, you’re training your mind in calm, focused, joyful, moment-to-moment awareness. Enjoy.
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rather than an insult. It changes the dynamic entirely in difficult conversations with clients, staff, colleagues, and even your family. Mindful legal work is work that causes no unnecessary harm. Physicians take the Hippocratic oath, which includes the promise to abstain from all harm. You probably can’t do that: your job is to win, and the loser often feels harmed. But there is no need for unnecessary harm. To discern whether or not your work is causing unnecessary harm, try this: 1. Before saying, doing, or working on anything, reflect on whether you might cause unnecessary harm. If so, find another way forward. 2. While saying, doing, or working on anything, periodically reflect on whether you’re causing unnecessary harm at the time. If so, stop and find a less harmful path. 3. After speaking, acting, or working on something, reflect. If you’ve caused unnecessary harm, apologize and find ways to avoid doing that in the future. Mindfulness is not the practice of perfection. As you learn and put effort into mindful communication, action, and work, you will notice how often you fail. But failing is not only unavoidable, it is also good news. Every time you notice you have been unmindful, you have the opportunity to try again. As you do that over and over, and especially if you do it without self-recrimination, you will become more and more mindful: more focused, calmer, more effective and happier. There are two final steps to becoming a mindful lawyer. The seventh step in the training is to understand that what goes around, comes around. This is relatively simple: When you speak or act harshly, you will receive a like-kind reply.
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If you are thoughtful and ethical, you will be known as a great lawyer. Intention is the eighth and final step in the training. Intentions drive you, whether you realize it or not. Becoming aware of your intentions is therefore critical: when you know what they are, you know what is driving you. And when you set your intentions, you have a good chance of achieving them. The classical intentions of mindfulness are to give up ill will, be kind, and cause no harm. If you are not sure where to start, start there. The benefits of mindfulness are obvious and compelling. And they are sorely needed in the law. In August 2017, the National Task Force on Lawyer Wellbeing, a coalition of ABA commissions and divisions, the National Conference of Chief Justices, and others, published The Path to Lawyer Well-Being: Practical Recommendations for Positive Change1. The report named what has been known for a while: that anxiety, depression, substance use, chronic stress, and suicide are rampant in the law, and that we need solutions. And mindfulness meditation was named as one of the top solutions to these urgent, devastating problems. Motivated by the pain and suffering of his times, Siddhartha taught the eight steps of mindfulness as a powerful cure for problems like the ones lawyers experience, and to cultivate effectiveness, wellbeing, and happiness. Those eight steps are as crucial today as they were 2,600 years ago, and amount to a superpower addition to your legal toolbox. In fact, nominated or not, if you practice mindful lawyering, you probably qualify as a real Super Lawyer to your clients, staff, colleagues, friends, and even your family. Judi Cohen is a lecturer at Berkeley Law and the founder of Warrior One, which offers mindfulness training for the legal mind. She is also a founding board member and chair of the Teachers Division of the Mindfulness in Law Society. 1. The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The Report of the National Taskforce on Lawyer Well-Being. 2017. Retrieved from https://www.americanbar.org/content/dam/aba/ images/abanews/ThePathToLawyerWellBeingReportRevFINAL.pdf
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A Conversation with
Presiding Judge Teri L. Jackson Adam Kaplan
S
an Francisco Superior Court Presiding Judge Teri L. Jackson is a fantastic judge and a wonderful person. She is also a strong supporter of the Barristers Club and the Bar Association of San Francisco. This year, the Barristers Club is delighted to present Judge Jackson with its Tara L. Riedley Barristers Choice Award at the 34th Annual Judges Reception on July 26 (see page 49 for more information about the reception.)
I had the pleasure of speaking with Judge Jackson in her chambers recently—here are some of the highlights.
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From left, Adam Kaplan with Presiding Judge Teri L. Jackson. Photo by K. Ruiz
What was it like growing up in the Bay Area? I love the Bay Area. I’m a first-generation San Franciscan, and so is my sister. My parents are from Louisiana. I went back east to go to law school, but after law school, I wanted to come back here. The reality is, we were dealing with the same issues that plagued our country at [that time] and still do, today: Discrimination, integration, dealing with racial tensions. The same things that were happening nationally were happening here. It was just not as overt.
I understand there were some issues when your family bought a house in Daly City? We were the first African American family in this particular neighborhood and my sister and I integrated the school we went to. And it was not easy. Back in those days, if you were
African American and you wanted to live in a neighborhood that was all white, you had to hire someone to be ‘Mr. and Mrs. Jackson.’ The realtor hired a couple to pose as my parents, and my parents bought the house without really seeing it until we moved in. When the people realized that they had sold to an African American family, they tried every which way to get out of the deal. Then a group of neighbors tried to come up with the funds to buy us out. My father worked at night and my mom worked during the day, and they were very frightened because they had two little girls. I think I was four years old and [my sister] Portia was eight. My mom had a shotgun out of fear that people would use some form of violence against African American homes. For a long time, we all slept in the same bed. If they should firebomb, if they should start shooting, my mom wanted to be able to get to her children quickly so we could escape. That’s how we grew up.
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Over the years, it turned out these very neighbors became my parents’ best friends. They celebrated every milestone of my family-graduations, birthdays and weddings.
When you were a kid, what did you want to be when you grew up? I wanted to be a lawyer; I knew that from when I was five years old. Portia was supposed to be the lawyer, though. My father, before going to World War II, read The Merchant of Venice, and Portia was the lawyer [in the play]. His attitude—and he was in one of the few ‘Negro’ combat divisions sent to North Africa, and that’s a story in of itself—but his attitude was that ‘if I ever survive this, I’m going back to marry the homecoming queen in Jonesboro Lodge, Louisiana (my mother) and move to California’ because he’d heard stories about San Francisco. And my dad said that if he ever had a daughter, he was going to name her Portia and she was going to be lawyer. That’s how my sister got her name. I’m named after my sister’s imaginary friend, ‘Gerri.’ So they did everything possible to make Portia the “Perry Mason.” They took us to the movie To Kill a Mockingbird
“I now tell the attorneys that they are the most powerful people in the courtroom next to the court reporter and possibly the clerk. Because they know the case, they know how to advocate.” Judge Teri L. Jackson
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when it came out, and they thought, ‘Teri will fall asleep and Portia will realize her destiny and become the lawyer.’ She fell asleep, I watched the movie, and I walked out and said I wanted to be like Atticus Finch and I want to do what’s right, not what’s popular.
Have any aspects of being a judge surprised you? One thing that people don’t realize is the lack of poweryou think that judges wield a lot of power. We don’t. There are limitations, and even if you have personal feelings, it is our job to put these views aside to make sure that both sides can be heard and my rulings are based in the law. I now tell the attorneys that they are the most powerful people in the courtroom next to the court reporter and possibly the clerk. Because they know the case, they know how to advocate. We all want to be fair, but, being a judge, you’re testing your fairness not every once in a while, but every day you walk into the courtroom. However, it is our obligation to be fair and to follow the law. I even say that to my prospective jurors: we all have biases. We have to acknowledge them, check them at the door and then make our decisions based on the facts of the case and the law.
Has anything surprised you about the role of the presiding judge? As a presiding judge, you get to know everyone and how they keep our court running, and I’ve been very impressed with our staff. They really know what they’re doing. I’m not surprised; I’m just impressed with their expertise and dedication. They really have the best interest in making our court work and making it work well. And then my colleagues have been wonderful.
“It is our obligation to be fair and to follow the law. I even say that to my prospective jurors: we all have biases. We have to acknowledge them, check them at the door and then make our decisions based on the facts of the case and the law.” Judge Teri L. Jackson
This has been a very difficult year, because our court took close to a ten percent cut. But it’s been great to see the court rally to support one another. Together, judges and staff agreed to support the Court during this difficult budget year through a combination of mandatory staff furloughs and voluntary judicial contributions. As a Court, we made these sacrifices to continue to serve the public and maintain access to justice.
You teach law school as well. How do you manage that with your caseload and administrative work? After a full day in court, I have to get a second wind to teach at night for three hours. But once I’m in the classroom, I become re-energized and fully engaged with my students. Sometimes I lose track of time as we exchange ideas, discuss legal concepts, cases and strategy. We learn from each other. After a recent class, I realized when I got in my car, I kept them 45 minutes longer than I should have! But I love it. And you know, when I grow up, that’s what I hope to do.
Is there a piece of advice that you give to your students and that you wish the advocates who appear before you always followed? Prepare, prepare, prepare. I do not know your brief, I do not know your case as well as you do. And what is amazing sometimes, there is someone at the firm who’s writing the brief, and someone else comes in to argue the brief. You got to read the brief. Because I’m reading it. And you have to understand it and appreciate it.
I understand that you go on trips to interesting and different places when you can? I’m trying to, because I’ve overworked myself. Portia and I are trying to go off on a trip every year. The year before last we went off to Italy together. I picked the trip for the first time. A friend of mine encouraged me to go with his group to Italy. I didn’t bother to read what it was about. I just heard Italy, we’re going to be there for three weeks, and then we’re going to be on Capri, and I just said, ‘sign me up.’ She didn’t read the itinerary, I didn’t read it. And then we show up, and at 7 a.m., we had to meet down in the lobby with the rest of the people. And there comes a priest. And Portia and I are looking at each other, because we had been thinking, ‘we’re going to be in piazzas drinking wine,’ and in comes the priest and says, ‘welcome to the pilgrimage of Francis of Assisi.’ And I’m like, ‘Assisi?’ And my sister is like, ‘why didn’t you read the itinerary?!’ So we did this pilgrimage for two weeks going to every place Francis of Assisi had trekked. It turned out we got a chance to attend a Mass with the Pope. It was really fun.
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“Together, judges and staff agreed to support the Court during this difficult budget year through a combination of mandatory staff furloughs and voluntary judicial contributions. As a Court, we made these sacrifices to continue to serve the public and maintain access to justice.” Judge Teri L. Jackson
[I said] well let me go over this contract with you. And he said, ‘Auntie did you hear?’ And I said, ‘yes I heard. I know you’re gay. I’ve known you were gay since you were a little boy. And I’m proud that you could come out.’ I’m very honored that he trusted me enough and I was there for him.
Finally, I heard from an inside source that you have a dog that you treat like a person. Why? Is it because I put the Burberry raincoat on him? Or is it the polish on his feet? Cooper is from the SPCA. He rescued me. He gets me away from work. He makes me laugh. He is a character—it’s all about him. And so I just enjoy him a great deal.
Does Cooper ever get to come to court? Did you get to meet the Pope?
Only when I come in on weekends, he comes with me.
Not the Pope, but his representative. He came over to my sister. And this I will never forget: he came to us and said, ‘the Pope wanted me to convey how proud he is of [Portia’s son], Jason Collins, for the courage of being the first [active] NBA player to come out as gay.
How does he like it here?
About Jason-I read that you were one of the first people in the family that he came out to, is that right? Well I knew, and he knew I knew. And we always did that dance. I just wanted to be there for him. And when he finally decided to come out, he came to me. And he was in the midst of contract negotiations, so ever the lawyer,
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Oh, any place he can be the boss… Adam Kaplan is a litigator in the San Francisco office of Munger, Tolles & Olson, and is the immediate past president of the Barristers Club. His practice focuses on complex commercial litigation, with an emphasis on securities, intellectual property and employment litigation.
The Barristers Club of the Bar Association of San Francisco presents the Thirty-Fourth Annual
Judges REception Thursday, July 26 5:30 – 7:30 p.m. Judicial Council of California 455 Golden Gate Ave., San Francisco The Barristers Club is pleased to announce that Presiding Judge Teri L. Jackson, San Francisco Superior Court, will be the recipient of the 2018 Tara L. Riedley Barristers Choice Award.
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SAY YES TO PRO BONO Gary A. Watt
Say “yes” next time somebody asks. We are all needed more than ever.
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I
f you had asked me ten years ago whether I would be doing pro bono work with any regularity, a candid answer would have begun with “no.” Law firm lawyers, particularly litigators, find it easy to say “no.” No, you can’t have those documents. No, you have not complied with this or that rule or regulation. No way that exhibit is coming in. No, this case will never settle. No, I don’t have enough time for paying clients, never mind pro bono.
rate that is the reason for writing this article. It’s what we didn’t know or fully realize, when we started.
We didn’t know that we could make so much of a difference — even when we lose — in the lives of the unrepresented.
A year after my hypothetical “no,” I actually answered “yes,” taking the helm of a brand-new venture at UC Hastings College of the Law: the pro bono appellate clinic we named the UC Hastings Appellate Project. Our goal was to form a clinic participating exclusively on appeals, and the Ninth Circuit’s pro bono program seemed the ideal platform. The idea was to staff an appeal with two third-year law students, supervise their review of the record and drafting of the briefs, and have one of the students argue the appeal. None of this was new in the greater law school context, but a dedicated appellate clinic was new to Hastings, and to everyone involved: the clinic’s founder and my supervisor at Hastings, Antoinette Young, my tireless assistant director for the project, Stephen Tollafield, and to me. We were pretty sure we could do it, but we were far from sure how it would go. It has gone well. Since its inception, we have handled 26 pro bono appeals in a wide array of matters, obtaining reversal in more than half of them. We have obtained published Ninth Circuit opinions too. But it’s not the numbers or success
We didn’t know just how much need there was, in the Ninth Circuit pro bono program alone. We didn’t fully appreciate just how much the justice system chews up and spits out the unrepresented, every day. We didn’t know that our Hastings students would bring so much passion to their clients’ lives and causes, often arguing their appeals and filing post-decision petitions well beyond the academic school year—even while studying for the bar exam. We didn’t know how righteous it would feel walking away from the Ninth Circuit each time, knowing we had taken our best shot for our pro bono clients. We didn’t know that we could make so much of a difference —even when we lose—in the lives of the unrepresented. Perhaps we should have known. As pro bono turns ten at the UC Hastings Appellate Project, the Three Dog Night song “Easy to Be Hard” comes to mind: “Easy to be hard; easy to be cold; easy to be proud; easy to say no.” Luckily, the leadership of the law firms I’ve been part of, particularly Hanson Bridgett, have always made it easy to say “yes” to pro bono. Luckily, for some reason, I said “yes” ten years ago to the notion of an appellate clinic at Hastings when all that jumped to mind was more responsibility, more work. So if you’re reading this, and you have been thinking about pro bono, go ahead and try something new. Say “yes” next time somebody asks. We are all needed more than ever. Gary A. Watt chairs the Appellate Practice at Hanson Bridgett, is Director of The Hastings Appellate Project, and is a State Bar approved certified appellate specialist. Contact him at gwatt@ hansonbridgett.com and www.appellateinsight.com
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 53
SUPREME COURT WATCH
OUR TOO-POWERFUL SUPREME COURT By Josh Patashnik
Front row, left to right: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Photo credit: Franz Jantzen.
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SUPREME COURT WATCH
T
his past March, Republican Senator Dean Heller of Nevada made waves when he predicted that Justice Anthony Kennedy would retire this summer. That may or may not happen—but if Justice Kennedy has decided to retire, it is unlikely he is feeding inside information about it to the senior senator from Nevada.
But stop and ponder the broader context of Senator Heller’s remarks. He was observing that Republicans face an uphill climb in the 2018 election because the Republican base is not motivated to turn out— but that the prospect of a new Supreme Court Justice might change that. Think about that. The U.S. Senate is the most powerful legislative body in the world, and control of the chamber might hinge on the outcome of Senator Heller’s re-election race. And the most critical issue on which the senator thinks the race could turn is not some pressing issue of domestic or foreign policy—not the economy, not taxes, not education or the environment, not Iran or North Korea. No, the single most important question facing the country is who should replace Justice Kennedy on the Supreme Court. And the sad thing is, Senator Heller may be right.
The Politicization of the Judiciary It is time to face reality: the centrality of the Supreme Court and the federal judiciary in politics is dangerous, it is undermining American democracy, and it is on track to get much worse. It’s no secret that the Supreme Court nomination and confirmation process, like everything else in Washington, has become more polarized in recent years. But the speed and magnitude of the change are breathtaking. A generation ago, Justices Scalia and Ginsburg were confirmed by
In light of the far-reaching disagreements Americans have over what many constitutional provisions mean, faithful adherence to “the Constitution,” on its own, is not a formula for calming the wars over the federal judiciary. It’s what has gotten us to where we are.
overwhelming bipartisan majorities. Fast-forward to today: Merrick Garland never even received a vote. Democrats sought to filibuster Neil Gorsuch’s nomination, so Republicans eliminated it—just as Democrats had done to fill the D.C. Circuit with President Obama’s nominees. It is doubtful whether any Supreme Court nominee in the foreseeable future will be confirmed when the White House and Senate are in opposite hands. (Perhaps not coincidentally, Justice Kennedy was the last one to be confirmed in that situation.) The animosity has trickled down to the circuit court level, where confirmation votes have become increasingly partyline affairs. Perversely, the most qualified nominees often attract the strongest opposition, since they are seen as potential future Supreme Court picks. Just ask Gibson Dunn partner Miguel Estrada, whose nomination to the D.C. Circuit Democrats blocked, or California Supreme Court Justice Goodwin Liu, whose Ninth Circuit nomination suffered the same fate at the hands of the GOP.
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SUPREME COURT WATCH It is easy to lament this state of affairs; it is harder to say what can be done about it. While contemporary judicial politics may be unseemly, demeaning, and nasty, they are not irrational. Politicians, voters, and advocacy groups have made judicial nominations into scorched-earth battles because they rightly perceive that much is at stake. More and more high-profile questions of public policy are resolved at the constitutional level by the Supreme Court, cementing certain outcomes into place for decades. In a democracy, the people will have their say one way or another. If they can’t do it by electing representatives, they will do it by demanding their representatives ensure the nomination and confirmation of like-minded Justices. Ask conservative legal advocacy groups why they care so much about the Court, and you are likely to hear about overturning Roe v. Wade, preserving and extending Second Amendment rights, and ending affirmative action. Ask liberal groups the same question, and you are likely to hear about protecting Roe, overturning Citizens United and Heller, ending capital punishment, and promoting LGBT rights. To be sure, these are not the only reasons people care about the Supreme Court, but they are all near the top of the list—and collectively, they account for the lion’s share of the intense energy surrounding judicial confirmation battles. What do these things have in common? They all involve areas in which the Supreme Court has interpreted, or is being asked to interpret, the Constitution in a way that prevents one side or the other from achieving important policy goals through the normal legislative process. The Court then becomes more important than legislation. If the Court is effectively settling major policy disputes through constitutional interpretation, ordinary people are going to care a lot about who sits on the Court. Viewed in this way, the consensus confirmations of Justices Scalia and Ginsburg were an unsustainable vestige of an earlier era in which—partly because the two parties themselves were ideologically diverse—the Supreme Court rarely engaged in constitutional interpretation in a way that
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This is a classic prisoner’s dilemma: we would be better off if we could agree to limit the Court’s involvement in politically charged disputes, but neither judicial liberals nor judicial conservatives are willing to disarm unilaterally.
clearly favored the policy goals of one side or the other. Political norms often lag behind on-the-ground reality, but the politics of judicial confirmation have now fully adapted to the modern era. To be clear, this is not to suggest the Justices are attempting to enact their own policy preferences into law. There is no reason to believe that any Justice in recent times has generally done anything other than follow his or her own sincere understanding of what the Constitution means. But it turns out that the constitutional views of Justices tend to overlap—not perfectly, but to a very large extent— with the policy preferences of the political coalition that shepherded them into office. That is not surprising, given the overwhelming incentives that presidents and senators have to pick Justices who will please their voters. In light of the far-reaching disagreements Americans have over what many constitutional provisions mean, faithful adherence to “the Constitution,” on its own, is not a formula for calming the wars over the federal judiciary. It’s what gotten us to where we are.
SUPREME COURT WATCH The Supreme Court Prisoner’s Dilemma So what is to be done? One possibility is simply to embrace, or at least accept, the current situation as the new normal—an inevitable consequence of the Court doing its job in today’s political climate. A second option is to search for some way to reduce the Court’s involvement in high-stakes political disputes, even if it means forgoing landmark constitutional rulings. The only alternative to the path we are currently on is a renewed, shared, principled commitment to judicial restraint. Some, understandably, will prefer the first option. People who feel strongly that the judiciary must protect certain liberties—abortion or gun rights, say—surely will view it as an abdication of the Court’s role to step back simply because some of its rulings prove controversial. They may be willing to live with a sharply polarized confirmation process, and also willing to run the risk that the other side will manage to enact some of its own policy goals into the Constitution. Libertarian types might even like it when the Court intervenes aggressively to protect rights against democratic encroachment from both the right and the left. These views are coherent and defensible ones, but they are highly problematic. Think about the practical implications if politics come to revolve around the Supreme Court, some of which are already upon us. No one could ever in good conscience support an opposing party’s presidential candidate—no matter how unqualified, corrupt, or racist their own party’s candidate—lest they risk ceding the commanding heights of the federal judiciary to the opposition. The most consequential decisions in American life would turn on the health and well-being of particular 80-plus-year-old lawyers. The temptation to resort to increasingly extreme measures, like court-packing, will only grow stronger. For these reasons and others, many people might prefer a Court that is more deferential to democratic outcomes— but only if the other side goes along too. This is a classic
prisoner’s dilemma: we would be better off if we could agree to limit the Court’s involvement in politically charged disputes, but neither judicial liberals nor judicial conservatives are willing to disarm unilaterally. In theory, this prisoner’s dilemma could be solved through the political process. The President and Senate could insist on judicial nominees who will exhibit greater deference to legislatures, or could seek to require a supermajority vote on the Court to invalidate statutes on constitutional grounds. But the prevailing partisan animosity and mistrust make this a remote prospect, to say the least. In all likelihood, if there is to be a concerted effort for the Court to take a step back, it will have to originate with the Justices themselves. That may not be likely, but it isn’t impossible. Among all American political institutions, the Supreme Court is uniquely well designed to overcome a prisoner’s dilemma. It’s an extreme repeat-play institution: there are only nine Justices, who enjoy life tenure, serve for decades, and work together closely on dozens of cases each year—giving them an unparalleled opportunity to build trust. Not only that, but the Justices give detailed explanations (in the form of opinions) for resolving cases the way they do, which can serve to bind them to resolve future cases in accordance with previously articulated principles. If there were a crossideological group of four or five Justices willing to place the institutional interests of the Court ahead of their own constitutional views, together they could lead the Court down a more deferential path. This idea is not new. In fact, it bears a striking resemblance to the way Chief Justice Roberts has described his vision for the Court. As he put it, “judicial temperament is a willingness to step back from your own committed views of the correct jurisprudential approach and evaluate those views in terms of your role as a judge.”1 A decade later, it is fair to say the Chief Justice has achieved limited success at best in that effort. Apart from his own courageous and underappreciated vote to save the Affordable Care Act from being struck down in 2012, there have been few prominent examples of Justices voting against their own ideological
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57
SUPREME COURT WATCH tendencies in an effort to find consensus in favor of judicial restraint in high-profile constitutional cases. Some of the Chief Justice’s critics have taken that as evidence that his own professed commitment to restraint is disingenuous. A more charitable explanation is that he has not been able to find partners to join him and he is unwilling to go it alone. As Roberts himself has recognized, at the end of the day, “a chief justice has the same vote that everyone else has.”2 Justice Kennedy is temperamentally moderate and has a unique mix of views, but is no devotee of judicial restraint. Justice Scalia was an intellectual giant, but had limited interest in forging compromise if it meant watering down his core beliefs. Justice Breyer is a pragmatist and is sometimes a consensus-builder, but has not usually been willing to distance himself from the Court’s liberal bloc in major constitutional cases. A principled commitment to restraint in constitutional interpretation is painful. For conservatives, it means forgoing judicial efforts to end race-based affirmative action or gun control, or rein in the administrative state. For liberals, it means giving up on decades-old dreams of the Court abolishing the death penalty or recognizing affirmative constitutional rights in areas like education. It also means beginning to come to grips with the reality that Roe v. Wade, even on its own terms, has been a failure. Unlike other landmark constitutional rulings like Brown v. Board of Education or the reapportionment cases of the 1960s that established the “one person, one vote” principle, Roe has not attained the near-universal popular acceptance necessary to cement it into American law. All it has done was to move the passionate debate about abortion rights from the realm of normal democratic politics to the realm of judicial politics—with corrosive effects on both.
The Court’s Legitimacy in the Trump Era and Beyond At first blush, Donald Trump’s presidency might seem like an odd time to call for a renewed commitment to judicial restraint. But for the Court to be an effective check
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on an overreaching executive branch, it must preserve its legitimacy as an institution, which in turn demands that the Court avoid being seen (as it increasingly is) as just another political actor in a dysfunctional Washington. There is a reason why Alexander Hamilton described the judiciary as the “least dangerous” branch of government. The Supreme Court has no guns or tanks, nor any revenue other than what Congress sees fit to give it. It has only one source of power: the legitimacy that its decisions have in the eyes of the public. And every high-profile, 5-4 decision split along ideological lines gives away a little bit more of that legitimacy. So does every titanic political clash over a nomination. As Chief Justice Roberts put it in 2007, “what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that [John] Marshall built up.”3 Since then, the situation has gotten worse, not better. President Trump has made it clear that he has no qualms about attacking the federal judiciary when it stands in his way. It is not hard to imagine he might be tempted to ignore unfavorable rulings. Whether he (or a future president) can do so depends on restoring the Court to its limited, but critical, role in our democracy. All of us— citizens, politicians, lawyers, judges, and the media—have a role to play in that effort. But its success or failure is likely to depend, ultimately, on the choices the Justices themselves make. Josh Patashnik is an associate at Munger, Tolles & Olson and clerked for Justice Anthony Kennedy during October Term 2012. Views expressed in this article are his own, and not those of Munger, Tolles & Olson or any of the firm’s clients. 1. newrepublic.com/article/104898/john-roberts-supreme-court-aca 2. www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559 3. www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559
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BOOK REVIEW
FEDERAL BUSINESS AND COMMERCIAL LITIGATION: An Updated Comprehensive Overview of Procedure, Substance, and Strategy Stephen McG. Bundy and Daniel P. Martin
T
he fourth edition of Business and Commercial Litigation in Federal Courts is remarkable in its ambitions. It seeks to provide “in depth treatment of federal civil procedure with substantive law in the areas most commonly encountered by [federal] commercial litigators,” with a unique focus on the intersection of substance, procedure, and strategic considerations. More striking, perhaps, it seeks to provide not just the analysis and citations of a conventional treatise, but to serve as “an idea book filled with nuggets of wisdom and perspective” from experienced lawyers and judges.
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BOOK REVIEW
The book’s ambitions are matched by its encyclopedic scale, consisting of 153 chapters—25 of them brand new— spanning more than 17,000 pages, approaching the scale of the 18,000 pages in Diderot’s original Encyclopedie, which aimed to cover all of human knowledge! About half of the chapters broadly concern procedure; the other half substantive law. For procedure, many chapters focus on traditional topics such as the law of civil procedure, evidence, and remedies, both in the trial court and on appeal, while others reach beyond the courtroom to diverse topics like litigation avoidance, crisis management, associate training, litigation technology, and ethics. The menu of substantive chapters is equally broad, ranging from staples like antitrust and employment discrimination, to more specialized federal statutes, to the full range of state law claims arising in diversity. And throughout the book—particularly in the procedural chapters—many sections focus on practical questions, including nearly ten chapters on effective motion and trial practice. In other words, the book covers virtually all topics that a federal commercial litigator is likely to encounter, often from several different angles. To test how well the book achieves its principal ambitions, we selected three of the new chapters, each dealing with a subject of particular interest to us and our own practice. A new chapter on Mediation, co-authored by the Honorable Daniel Weinstein and Cedric Chao, delivers fully on all counts, combining a careful summary of the mediation process and the rules governing it with wise practical advice about the strategic and tactical choices involved in the timing, design, and conduct of the mediation. Judge Weinstein’s personal thoughts on effective mediation advocacy reflect precisely the kind of unique “wisdom and perspective” that the book aims to provide.
Business and Commercial Litigation in Federal Courts, Fourth Edition, with 153 chapters written by 296 principal authors, is a step-by-step practice guide that covers every aspect of a commercial case.
For when mediation fails, Senior District Court Judge Reggie Walton provides a similarly wise and practiced perspective in a new chapter on Effective Trial Performance. The ground covered is broad: Judge Walton moves from motions in limine to closing arguments, and covers everything in between. And the well of practical knowledge is deep: based on his forty-plus years of trial experience, Judge Walton offers valuable insight into—and strategies for confronting—each stage of trial. Combined, the chapter offers a broad, useful starting point when approaching trial. A new chapter on Fiduciary Duty Litigation also hits its mark. Procedurally, the chapter covers everything from pre-filing considerations through discovery and to trial, highlighting jurisdictional, standing, forum, ethical, and privilege considerations specific to fiduciary litigation. Along the way, the reader will find useful substantive knowledge in areas likely to arise, including definitions of particular fiduciary relationships and typical claims and their elements. Simultaneously, the chapter offers strategic and tactical
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 61
BOOK REVIEW
considerations to help both plaintiffs' and defense counsel evaluate and succeed at each stage of the case. With such breadth of coverage, and cautious not to overwhelm readers, the chapter closes by packaging its “nuggets of wisdom” into easily accessible checklists. Because of its coverage and structure, this book should be useful for a wide audience. A typical chapter (averaging 112 pages) offers a compact and efficient gateway to an unfamiliar problem—one that can then be followed by research in more conventional single-subject treatises. This kind of high-quality introduction is probably most important for those who are doing something for the first time: first-year associates writing their first set of interrogatories or preparing for their first mediation; midlevel associates litigating their first case with international or cross-border aspects; partners finding that a case that began in familiar territory has veered into the unfamiliar. It should also be particularly useful for lawyers in smaller firms, who typically lack in-firm access to experts in other fields. And it could be useful to lawyers who have to monitor other lawyers, as when corporate counsel supervises a specialist litigator in an unfamiliar field or when one needs a general understanding of issues being handled by co-counsel. For more ambitious research, the book’s comprehensive index and careful cross-referencing provides a mechanism
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for coordinated research from multiple angles, both substantive and procedural. A final new and intriguing feature of the book is that every chapter includes a closing checklist that highlights, in shorthand form, the critical issues and steps to be taken in dealing with the subject covered. This feature offers another practical tool for making effective real-time use of the book’s extensive information. As documented in Atul Gawande’s The Checklist Manifesto: How To Get Things Right (2010), in complex areas like surgery, construction, and flying an airplane, well-designed checklists consistently reduce errors and omissions and improve teamwork and responsiveness to unexpected emergencies. The checklists in this book represent a welcome step. Drawing on the checklist designs from these other fields and expanding the feature further could be an important direction for the authors to pursue in future editions. Stephen McG. Bundy is of counsel and Daniel P. Martin is an attorney at San Francisco-based Taylor & Patchen, where they specialize in complex business litigation and appellate work.
WHAT YOU NEED TO KNOW ABOUT FAMILY LAW $1,400 Average monthly income for a family of three (parent with two children) among JDC clients
80% Percentage of California family law litigants who don’t have counsel—It’s not unusual for both sides to be unrepresented
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Number of custody/visitation filings in San Francisco, where at least one party sought a fee waiver. Among the approximately 1,200 filings per year, at least one party had a monthly income of $1,200 or less and sought a fee waiver in 30% of the cases.
Want to make a difference in the life of a child? Are you looking for work that really touches people’s lives, in which a family’s core relationships are at stake? The Justice & Diversity Center (JDC) provides much-needed pro bono representation to low-income people and families. By volunteering for the Family Law Project, you can stabilize children’s lives, and ensure sustenance for individuals and children, while gaining valuable motion drafting and oral argument skills. Family Law volunteer attorneys assist low-income families with guardianship petitions, marital dissolutions (divorces), child custody, and support issues. JDC always screens cases for eligibility and appropriateness for volunteer attorneys, and Provides attorney training, supervision, and mentorship, and Provides malpractice insurance
HOW TO GET INVOLVED JDC offers a free family law training every month. You can see the schedule at www.sfbar.org/probono-trainings and register online, or email our volunteer coordinator at probono@sfbar.org After taking the training, attorneys receive weekly emails with available cases and can volunteer when they have time and a case interests them.
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DI VER SI TY D T YS R EI CV EEPRT ISOI N RECEPTIONS Summer Summer in the City... in w h ethe r e t h City... e n ehtewr oe r kt hi ne g i s e a s y . w n e t w o r k i n g i s e a s y. The Bar Association of San Francisco (BASF) recognizes The Bar Association of San the benefits that minority and LGBTQ Francisco (BASF) recognizes the
law students and young benefi ts that minority andlawyers LGBTQ receive whenand afforded law students youngopportunities lawyers to network with other lawyers receive when afforded opportunities and successful partners who look to network with other lawyers like them and/or have similar and successful partners who look experiences. Established in 2007, like them and/or have similar
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