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June 01, 2019 Feature

These Are a Few of My Favorite Things

Palmer Gene Vance II

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Like many of you, I have been reading Litigation for years. In fact, I joined the Section of Litigation while still in law school and have now been a member for three decades. Each time we survey Section membership, this journal is always listed as the favorite benefit of belonging to the Section. I am also among those who have retained most issues of Litigation I have received over the years. The reprised articles in this issue remind us of why we so enjoy the publication. In keeping with the theme of “Pearls of Wisdom,” I decided to review some of the columns that many of my predecessors as chair have penned as the Opening Statement. What follows are a few of my favorite passages. Through these timeless words, we are reminded of the mission and the breadth of the Section of Litigation.

Foremost, we are the premier organization providing guidance to litigators on honing their craft and being better trial lawyers. An example is found in the Fall 2013 issue from 2013–2014 Chair Don Bivens, “Five Traits of the Best Lawyers I Know”:

[T]he best litigators I know share certain traits in common. If you follow some or all of these traits in your practice, then you are on my list of best lawyers, or you are well on your way.

1) Put Yourself in Every Chair at the Table. . . .

2) Leading Litigators Are Community Leaders. . . .

3) Stay Curious and Informed. . . .

4) When You Don’t Know, Say So. . . .

5) The Best Litigators Share What They Know. . . .

Don’s last point is also emblematic of the goal of the Section to share our collective knowledge with all of our members, and of the responsibility we all have to mentor younger lawyers. As 1992–1993 Chair Louise LaMothe observed in the Winter 1993 issue,

[t]he more senior lawyer gives feedback, guidance and advice, perhaps unaware that his actions serve as a lesson for the younger lawyer. The younger lawyer sees from the more senior how to behave in a host of situations—with judges, clients, opponents, peers, and staff. The younger lawyer has a role model—a guide in the myriad situations that will confront him in his professional life. Such relationships, while particularly important for young lawyers, can last long into middle age, the junior, though now experienced, lawyer still seeking advice and support from his more senior colleague. Indeed, it could be persuasively argued that no one ever succeeded without a mentor.

The Section also works to enhance our reputation as litigators. Chief Judge Barbara Lynn, the 1998–1999 chair, reflected the long history of this work and the commentary of other former chairs in the Summer 1998 issue:

The depth of concern about how our profession and legal system are perceived by the public has been reflected in a variety of “Opening Statement” columns since the founding of the Section. . . . In 1983, Joan Hall noted the wide publicity given to those relatively few cases of inappropriate and unethical behavior of trial lawyers and the meager publicity given to the self-effacing contributions of an impressive number of trial lawyers. Two years later, Jack Curtin noted our own profession’s criticism of trial lawyers, 86% of whom responded in a survey that they had encountered unethical lawyers. . . . In 1993, Bob Sayler noted that public disdain for lawyers had reached the level where the “whole lot of us” were seen by broad segments of the public as “blot(s) on society; expensive, elitist, overpaid, unethical, mean-spirited Rambos.” In 1996, Barry McNeil noted the critical importance of restoring trust in our justice system.

And so the Section has always responded to these concerns and worked tirelessly to improve both perception and reality. Bob Clifford, the 2001–2002 chair, commissioned a detailed study on public perceptions and, in response, penned a tribute to the honorable lawyer in the Winter 2002 issue:

It is the honorable lawyer who must help society make the connection between law and morality. The honorable lawyer is the one who possesses wisdom, courage, and compassion to work for what is right and good. It is the honorable lawyer who must stand up and be willing to trudge that road less taken even if it means standing up for what may be the less popular position but the right thing to do. The honorable lawyer does not settle or compromise a case just to end litigation, to earn a fee, or to cease underwriting it as a financial burden. It is the honorable lawyer who tries to connect the legal system to the social network and see to it that members of society contribute to the common good. . . .

We must . . . use our profession to empower the weak, to instill truth in the skeptics, to help the downtrodden feel autonomous. It can be accomplished through the legal system and through the honorable lawyer.

2006–2007 Chair Kim Askew returned to this theme in the Fall 2006 issue, recognizing the unheralded, but heroic work of litigators:

Each day in courtrooms, jails, boardrooms, special detention facilities and places unimaginable to the everyday citizen, lawyers and judges are engaged in the work that inspires us all. They are the Atticuses among us. Their triumphs make us proud to be lawyers. They take one case at a time and simply do their best—which often results in significant rules and landmark decisions, in an accused’s having a home or being on the streets, in the difference between life and death. From representing undocumented children to overturning the conviction of innocent defendants denied their rights to a fair trial, our profession never shines brighter than when we represent the poor, those who lack access to justice, and controversial and unpopular causes.

The Section has long served as an advocate for the jury trial and its preservation at the heart of our justice system. In the Fall 1991 issue, 1991–1992 Chair Ted Tetzlaff raised a series of questions fundamental to ensuring the continued vitality of juries:

How can we provide satisfactory hearings to the many litigants who seek them—especially individuals in mass tort actions (such as asbestos claims), multiple-defendant criminal causes, civil rights causes, and economically modest civil claims of all sorts? In each of these areas, traditional rules and procedures have failed to ensure adequate access. How can we ensure each litigant a day in court?

Some years later, 2003–2004 Chair Trish Refo offered an answer to these perpetual questions on behalf of the Section in the Spring 2004 issue:

We are the largest organization of trial lawyers in the country that includes lawyers from both sides of the caption. And individually, we are lawyers who, every day, ably represent our clients in the litigation process. Or we are judges who preside in our nation’s courtrooms. Or we are the law professors who prepare and inspire the next generation of advocates. Together, we need to start working on how to rescue the trial. We have to make civil trials cheaper, faster, and better, and we have to get the word out that our civil trial system works—and works well.

At the same time, we have also consistently recognized that, as litigators, we must ultimately seek the most efficient and just option for our client given the circumstances of the dispute. As 2010–2011 Chair Hilarie Bass observed in the Summer 2010 issue,

[o]ffering rule changes that will improve the process will certainly assist our clients and create greater efficiency. In the end, however, the uncertainty of hoping that six or 12 jurors can be appropriately informed about the factual complexities of a sophisticated commercial dispute—and objective enough to divorce themselves from their implicit biases and inherent prejudices—is more likely to compel litigants to choose the certainty of a self-directed settlement than all the rules changes we can write. Perhaps our focus going forward should be on helping our clients resolve their disputes in the most expeditious and economic way—regardless of whether or not the result is a trial.

Elevation of these and other issues affecting our system of justice and dispute resolution, including fostering healthy debate, has been a hallmark of the Section of Litigation and this journal for more than 45 years. The Section remains at the forefront of the trial bar and its impact on justice, while at the same time providing best-in-class education on the art of litigation. There is no better place to be for litigators.

In the Summer 2004 issue, 2004–2005 Chair Dennis Drasco concluded:

I am not only proud to be a trial lawyer; I am proud to be a member of the Section of Litigation. Get more involved yourself. It’s good for the profession, good for the public, and good for you and your law firm, company or public entity. I will have no greater honor in my career than chairing our Section of Litigation.

I could not have said it better myself.

Palmer Gene Vance II

The author is chair of the Section of Litigation and a member of Stoll Keenon Ogden PLLC, Lexington, Kentucky.

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).