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June 01, 2019 A Litigation Retrospective

Pearls of Wisdom

Kevin Abel

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To honor Litigation’s long tenure, we are re-publishing a group of articles from our early years to show our current readers how timeless good writing can be. This issue is not meant to be a “greatest hits” album put together by some editors who once wore bell-bottoms. Rather, we continue our tradition of teaching lawyers with examples of thoughtful pieces written in a style that makes you want to read to the end. Dig into this issue and you will learn something that you did not know.

The inaugural issue of Litigation in 1975 included a piece by Chief Justice Warren Burger on civility among lawyers. We include here an article on judicial independence written by then Chief Justice William Rehnquist, just three years after he had presided over the impeachment trial of President Bill Clinton before the U.S. Senate. It provides a historical perspective on the pressures placed on judges by the other two branches of government. With our current president often critical of the judiciary (including the sitting chief justice), this article is worth revisiting.

Over the years, Litigation has published interviews of leading trial lawyers and of several U.S. Supreme Court justices. We include here an interview of Ruth Bader Ginsburg from 2011, long before she was called “Notorious RBG” or was portrayed in a feature film by a lead actress from a Star Wars movie. Justice Ginsburg’s comments on the struggles for women’s rights and fair treatment in the workplace, which so defined her early career, seem like both inspirational history and a call to action today.

Speaking of history, Litigation has always recounted the past in a way that informs our current perspectives. Look at Peter Baird’s humorous and personal recollections about his client Ernesto Miranda, the convicted confessor who became the namesake of a famous Supreme Court case and the “warnings” that every American knows from watching cop shows on TV. We also include a piece by Marilyn and Bob Aitken about the tragic 1911 Triangle Shirtwaist Factory fire, in which 147 young female immigrant workers died in an inferno on the upper floors of a 10-story building with locked doors and no fire escapes. The article describes the subsequent criminal trial of the factory owners, including their lawyer’s cross-examination of the Yiddish-speaking fire survivors. Then there is Jacob Stein’s analysis from more than 20 years ago of the federal criminal statutes on lying to investigators and witness tampering, crimes in the current headlines coming out of Washington, D.C. Stein writes: “As long as the search for truth continues, there will be the impediment of falsehood.”

It would not be an issue of Litigation without several articles with practical advice. Dennis Rawlinson gives instruction on direct examination, which, unlike cross-examination, you can practice in advance with your witness. If you ever do appellate work, you will want to read Bill Pannill’s summary of things to do when the record is cold and you need to convince a new set of appeals court judges. And for newbie lawyers, Judge Joe Greenaway gives a useful guide to those rules of evidence you struggled with in law school but need to know by heart if you are going to be prepared in court.

Longtime readers know that Jim McElhaney graced every issue of Litigation for decades with his sage advice on all aspects of trial practice. We could have reprinted any of the dozens of columns he wrote over the years. We picked a short one from 40 years ago to show how relevant his writings remain today.  

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Kevin Abel

The author is with Bryan Cave Leighton Paisner LLP in St. Louis. He is an associate editor of Litigation and co-edited this issue.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).