JOURNALSewell wearing a Bowie knife in a sheath when he and Agurs purchased the hotel room.18 The...

THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

Brady v. Maryland and Its Legacy page 8Should Attorneys Be Required to Report Pro Bono Hours? page 12

The New Servicemembers Civil Relief Act page 22

SUMMER

2006

8 SUMMER 2006

Along with Nancy’s brother, DonaldBoblit, Brady and Nancy conspired to rob abank. To pull off the robbery and make aclean getaway, the two decided, at Brady’ssuggestion, to steal a car from a mutual

friend named William Brooks. Late on June27, 1958, Brady and Boblit placed a logacross the road near Brooks’ home and wait-ed for him to come home. When Brooksdrove up to the log, he got out of the car to

move it. At that point, either Brady or Boblithit him over the head with a shotgun, placedhim in the backseat, and took his wallet.Brady then drove to a secluded field wherehe and Boblit walked Brooks to a clearing at

John Brady was 25 years old

when he was arrested and

charged with first-degree mur-

der. He had bounced around

from job to job and engaged

in an affair with another man’s wife, Nancy Boblit Magowan, and

was dealing with the fact that she was pregnant with his child. On

June 22, 1958, Brady gave Nancy a post-dated check for $35,000

and told her he would have that amount of money within the next

two weeks.1

Brady v. Maryland and ItsLegacy—Forging a Path forDisclosure

B Y M A I T R I “ M I K E ” K L I N K O S U M A N D B R A D B A N N O N

Bruno Budrovic/images.com

THE NORTH CAROLINA STATE BAR JOURNAL 9

the edge of the woods and one of the menstrangled Brooks to death with a shirt.2

After their arrests, Brady and Boblit bothgave several statements to law enforcementin which the facts changed from one state-ment to the next. However, Brady consis-tently denied the actual killing of Brooks andmaintained that Boblit had strangled Brookswith a shirt. Boblit also gave a series of state-ments to the police and, in all but one ofthem, he claimed that Brady was the actualkiller of Brooks.3

The key confession at the heart of Bradyv. Maryland, was Boblit’s fifth statement,which was taken on July 9, 1958. In thatstatement, Boblit admitted that he had hitBrooks on the head with a shotgun. He alsostated that after they got back into the car, he(Boblit) had planned to shoot Brooks, butthat Brady suggested strangulation instead.Boblit admitted that he strangled Brooksand that he and Brady had carried the bodyinto the woods.4

The key issue in the prosecution wouldturn on the identity of the individual whoactually strangled Brooks. While that ques-tion had little, if anything, to do withwhether Brady and Boblit were guilty offirst-degree murder, the question did have apotential impact on whether Brady orBoblit, or both, deserved the death penalty.5

Prior to Brady’s trial, Brady’s lawyer hadasked the prosecutor for any confessions thateither men had made. The prosecutor turnedover all of Boblit’s statements except the July9, 1958 statement in which Boblit confessedto being the actual killer. Both Brady andBoblit were convicted, in separate trials, offirst-degree murder and sentenced to death.6

A new lawyer for Brady read the tran-script of Boblit’s trial (during which the pros-ecution used the July 9, 1958 statement toconvict Boblit), discovered the existence ofthe July 9, 1958 statement, which Brady’strial lawyer had never received, and filed apost-conviction motion requesting a newtrial based on recently discovered evidence.7

The trial court denied the motion, but theMaryland Court of Appeals reversed thedecision and stated “the suppression or with-holding by the state of material evidenceexculpatory to an accused is a violation ofdue process.”8 The Maryland Court ofAppeals refused to order a new trial on theissue of guilt, because the new evidence didnot raise doubt as to that issue, but the courtdid order a new trial on the issue of whether

Brady should receive the death penalty.9

After the Maryland Court of Appealsissued its ruling, Brady petitioned for certio-rari to the United States Supreme Court. Hesought a new trial on both guilt and punish-ment. The Supreme Court affirmed the rul-ing of the Maryland Court of Appeals andheld that the “suppression by the prosecu-tion of evidence favorable to an accusedupon request violates due process where theevidence is material to either guilt or to pun-ishment, irrespective of the good faith or badfaith of the prosecution.”10

In so ruling, both the Maryland Court ofAppeals and the United States SupremeCourt found that the Due Process Clause ofthe 14th Amendment to the United StatesConstitution requires disclosure of exculpa-tory evidence. In so finding, the courts high-lighted one of the touchstone constitutionalprinciples which underlies our system ofcriminal justice in the United States: whenthe government seeks to deprive one of lifeor liberty, due process requires the prosecu-tion, the very adversary which seeks to pun-ish the accused, to provide the accused withthe tools to defend themselves.

The History of Brady v. MarylandTo understand the seminal importance of

Brady v. Maryland, one must understand thenature of exculpatory evidence and the DueProcess Clause of the 14th Amendment to theUnited States Constitution. The Due ProcessClause states that “No State…shall depriveany person of life, liberty, or property withoutdue process of law.”11 In Brady, the SupremeCourt invoked the Due Process Clause tohold “that the suppression of evidence favor-able to an accused upon request violates dueprocess when the evidence is material either toguilt or to punishment, irrespective of thegood faith or bad faith of the prosecution.”12

Rendering its Brady decision in 1963, theCourt relied on legal precedent dating backto 1935, tracing the prosecution’s affirmativeduty to disclose evidence favorable to a defen-dant back to early 20th century prohibitionsagainst misrepresentation to the courts.13

The Court defined exculpatory evidence asany evidence favorable to a defendant andmaterial to the question of the defendant’sguilt or the determination of a guilty defen-dant’s punishment.14 While the Court didnot define “materiality” in its Brady decision,it would later hold that exculpatory evidenceis “material” if there is a “reasonable probabil-

ity” that disclosing it would have changed theoutcome of the proceeding. In other words, a“reasonable probability” is a “probability suf-ficient to undermine confidence in the out-come” of the trial.15

Since Brady, exculpatory evidence has, infact, come to be known and referenced bycriminal law practitioners as “Brady materi-al.” Also during that time, the United StatesSupreme Court continued to expand andclarify the definition of Brady material andthe scope of the prosecution’s duty to dis-close it. For example, under the originalholding in Brady,16 the defense was stillrequired to make specific pre-trial requests toprosecutors for exculpatory evidence. Butthen, in 1976, United States v. Agurs17

reached the Supreme Court. Linda Agurs was indicted for second-

degree murder in the stabbing death of JamesSewell, which occurred at a NorthwestWashington, DC, motel on the afternoon ofSeptember 24, 1971. The prosecution’s casecentered on the allegation that Agurs was aprostitute, whom Sewell had encountered,and that the two went to the motel during thecourse of their encounter. During the trial, amotel employee testified that he had seenSewell wearing a Bowie knife in a sheath whenhe and Agurs purchased the hotel room.18

The motel employee further testifiedthat, a while later, he and two other employ-ees heard a woman’s screams from the roomoccupied by Agurs and Sewell. The employ-ees forced their way into the room and foundAgurs and Sewell struggling on the bed withSewell’s Bowie knife.19 The prosecution fur-ther alleged, under the prostitution theory,that while Sewell was down the hall in thebathroom, Agurs rummaged through hisclothes to steal more money, and Sewellcaught her upon his return to the room. Theprosecution alleged that when Sewell caughtAgurs going through his clothes, Agursgrabbed the Bowie knife (which was amongthe clothes) and stabbed Sewell to death.20

Agurs unsuccessfully argued at trial thatshe acted in self-defense. About a monthafter she was convicted and sentenced, herattorney discovered that Sewell had a priorcriminal record for assault and carrying dan-gerous weapons. The importance of thatinformation was simple: Sewell’s prior recordevidenced his prior violent conduct, whichcould have helped Agurs support her defensetheory of acting in self-defense.21

The prosecution had not disclosed

Sewell’s prior offenses to Agurs’ defenseattorney. During the course of the post-con-viction litigation concerning the non-dis-closed evidence, the government argued thatbecause the defense attorney had not specif-ically requested Sewell’s prior record, thegovernment was under no obligation to dis-close it.22

The United States Supreme Court dis-agreed and held that, for Brady purposes, adefendant’s failure to make a request of thegovernment for favorable evidence does notrelieve the government of the obligation toturn over exculpatory evidence. In otherwords, the prosecution must disclose excul-patory evidence regardless of whether thedefense has requested it.

Impeachment Material Is ExculpatoryEvidence

Another case that forged the path of cur-rent Brady jurisprudence was Giglio v. UnitedStates,23 wherein the United States SupremeCourt began to treat impeachment materialas the legal equivalent of exculpatory materi-al. “Impeachment evidence” is, of course,evidence that can be “used to undermine awitness’s credibility.”24 In Giglio, theSupreme Court recognized the value ofimpeachment material to criminal defen-dants and to their juries when performingwhat is often the central role of a jury in acriminal trial: assessing the credibility of gov-ernment witnesses.

In Giglio, the prosecution failed to dis-close a promise for leniency made to a keyprosecution witness in exchange for testimo-ny against the defendant. The prosecutionhad promised the witness he would not beprosecuted for the same charge if he testifiedagainst Giglio before the grand jury and attrial. The Supreme Court held, as it had inNapue v. Illinois,25 that when the reliability ofa given witness may be determinative of guiltor innocence, the nondisclosure of evidenceaffecting the credibility of a witness falls with-in the Brady doctrine.26 In so holding, theCourt clarified and broadened the Brady27

definition of “exculpatory evidence.”In United States v. Bagley,28 the United

States Supreme Court continued to legallyequate impeachment evidence with exculpa-tory evidence for Brady purposes. In Bagley,the prosecution had failed to discloseimpeachment evidence related to contractsbetween the prosecution and its trial wit-nesses whereby the government paid money

to those witnesses based upon the informa-tion they provided to the prosecution.

In Bagley, the Supreme Court consideredand rejected the reasoning of the lower court,which had drawn a distinction betweenimpeachment evidence and exculpatory evi-dence and held that impeachment evidencewas more important than exculpatory evi-dence. Citing Giglio,29 the Supreme Courtspecifically “rejected any such distinctionbetween impeachment evidence and exculpa-tory evidence” and reiterated that, when thereliability of a given witness may be determi-native of guilt or innocence, the nondisclo-sure of evidence affecting the credibility ofthat witness falls within the Brady rules.30

The significance of Bagley in Bradyjurisprudence is that, while Giglio founderror in failing to disclose a specific type ofimpeachment evidence, Bagley generally anddefinitively held that there is no distinctionbetween “impeachment evidence” and “excul-patory evidence” for Brady purposes.31 Bothtypes of evidence have equal footing withinthe law. One type is no more or less impor-tant than the other, and they are legally syn-onymous for purposes of defining the prose-cution’s duty to disclose Brady material andanalyzing its failure to do so.

Prosecutors Must Review TheirEvidence for Brady Material

The rejection of any distinction betweenimpeachment evidence and exculpatory evi-dence was further solidified in 1995 in Kylesv. Whitley.32 In Kyles, the prosecution failedto turn over evidence related to multiple wit-ness descriptions of the suspect which wereinconsistent with one another, tape record-ings and written statements of an informantwhich were inconsistent, a computer print-out of automobile license numbers whichindicated the defendant’s car was not at thelocation where the informant had told policeit was at the time of the crime, and evidencelinking the informant to other crimes.

While reinforcing the Bagley holding,which “disavowed any difference betweenexculpatory and impeachment evidence forBrady purposes,”33 the Court went furtherand found that the 14th Amendment34

places a duty on the prosecutors “to learn ofany favorable evidence known to others act-ing on the government’s behalf in the case,including the police.”35

Thus, Kyles expanded Giglio’s focus on theprosecutor as “spokesman for the govern-

ment”36 and specifically imposed an affirma-tive duty on that spokesman to obtain anddisclose all Brady material in the possession ofanyone acting on behalf of the prosecution. Inother words, the failure of prosecutors to pro-vide Brady material to criminal defendantscannot be excused by the failure of prosecu-tors to learn or know about it, and that is truewithout regard to whether the ignorance wasin good faith or bad faith. Thus, whether theprosecution’s failure to disclose Brady materialwas based on the failure of exculpatory infor-mation in law enforcement files to make itsway into the prosecution’s office file, or simplybased on a prosecutor’s failure to read thoseentire files, Kyles held that it was Brady errornonetheless.37

The Systemic Nature of Brady-RRelatedProsecutorial Misconduct

The overriding problem in all Brady-related cases is prosecutorial government’sfailure to disclose evidence favorable to thecriminal defendant, whether “impeach-ment” or “exculpatory,” and it is a problemthat continues in jurisdictions across theUnited States. In fact, the systemic nature ofthe problem is illustrated by the fact that theUnited States Supreme Court, which grantsreview in only the rarest of cases in which apetition for writ of certioriari is filed, hasgranted certiorari and rendered opinions incases centering upon withheld Brady materi-al in each decade following the year Bradywas decided, 1963.

Brady violations are, by definition, viola-tions of an individual citizen’s 14thAmendment right to due process of law: thebackbone of American criminal justice.Unfortunately, those violations have been sopervasive within the American criminal jus-tice system that, as recently as February2004, the United States Supreme Courtonce again found itself considering yetanother case involving evidence withheldfrom the defense which would haveimpeached a prosecution witness.Addressing the Brady violation in that case,the Court eloquently summarized the issuein Banks v. Dretke:

A rule thus declaring “prosecutor mayhide, defendant must seek,” is not tenablein a system constitutionally bound toaccord defendants due process.“Ordinarily we presume that public offi-cials have properly discharged their offi-cial duties.” We have several times under-

10 SUMMER 2006


scored the “special role played by theAmerican prosecutor in the search fortruth in criminal trials.” Courts, litigants,and juries properly anticipate that “obli-gations to refrain from improper meth-ods to secure a conviction…plainly rest-ing upon the prosecuting attorney, will befaithfully observed.” Prosecutors’ dishon-est conduct or unwarranted concealmentshould attract no judicial approbation.The prudence of the careful prosecutorshould not be discouraged.38

Of course, most prosecutors well deservethe “ordinary presumption” that they prop-erly discharge the many legal and ethicalduties of criminal prosecution, including theduty to disclose Brady material. Thus, it isimportant to note that the goal of educatingthe legal community and general publicabout Brady-related issues and violations isnot to gratuitously attack a class of dedicatedpublic servants. Indeed, as the United StatesSupreme Court stated in Brady,39 the pointof due process is not to punish the misdeedsof offending prosecutors, but to ensure thatdefendants have fair trials.

Brady did not create a “loophole” in 1963that allows criminal defendants to walk free,and the cases that have, in the 40 years since,consistently reaffirmed its holding and fur-ther defined its scope, did not merely serve towiden a loophole. At most, Brady and itsprogeny require that convicted defendants begranted new, fair trials when exculpatory evi-dence was withheld from them before theirprevious, unfair trials.40 Notably, in the Bradycase itself, there was no chance that JohnBrady would walk free. The most he couldhope for was to avoid the death penalty andreceive a life sentence.41 While Brady was notinnocent of murder, he may well have beeninnocent of the degree of murder that calledfor the ultimate punishment of death. Bradysimply held that the prosecution could notwithhold evidence that might assist the juryin making either of those determinations.42

Regardless of the facts of a particular case,when a Brady issue arises, it encompasses the

guiding precept of our system of criminaljustice: the protection of the accused but pre-sumed innocent citizen. “Innocence…is nota technicality to the criminal process. It is themain touchstone of the criminal process.The justice system must not only strive toconvict the guilty, but also to acquit theinnocent.”43

Mike Klinkosum is an assistant capitaldefender in Durham, NC, where he worksexclusively on first-degree murder cases. Heobtained his BA in History and PoliticalScience from UNC-Chapel Hill in 1992 andhis JD from the University of Miami in 1995.Klinkosum began his career as an assistant pub-lic defender with the Cook County PublicDefender’s Office in Chicago, IL, before return-ing to NC in 1998. He is certified by the NCBoard of Legal Specialization as a specialist instate criminal law and has been the chair of theCriminal Defense Section of the NorthCarolina Academy of Trial Lawyers for the lasttwo years.

Brad Bannon is a member of the law firmCheshire Parker Schneider Bryan & Vitale inRaleigh. He practices criminal defense in stateand federal court and is on the ExecutiveCommittee of the Criminal Defense Section ofthe North Carolina Academy of Trial Lawyers.Bannon received his BA from the University ofSouth Carolina in 1993 and his JD fromCampbell University in 1997. Upon the nom-ination of the State Bar Council, he wasappointed by Governor Easley last fall to serve afour-year term on the North Carolina InmateGrievance Resolution Board.

Endnotes1. Bibas, Stephanos, The Story of Brady v. Maryland:

From Adversarial Gamesmanship Toward the Search forInnocence, Criminal Procedure Stories, Carol S.Steiker, ed., Foundation Press (2006)

2. Ibid

3. Ibid

4. Ibid

5. Ibid

6. Ibid

7. Ibid

8. Ibid, citing 174 A.2d 167, 169 (Md. 1961)

9. Ibid

10. Ibid

11. US Constitution Amendment 14

12. Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215,83 S.Ct. 1194 (1963).

13. Mooney v. Holohan, 294 U.S. 103, 112, 79 L.Ed.791, 55 S.Ct. 340 (1935); Pyle v. Kansas, 317 U.S.213, 215-216, 87 L.Ed. 214, 63 S.Ct. 177 (1942);Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3L.Ed.2d 1217 (1959).

14. Brady v. Maryland

15. US v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481, 105S.Ct. 3375 (1985) (quoting Strickland v. Washington,466 U.S. 668, 694 (1984)


17. United States v. Agurs, 427 U.S. 97, 49 L.Ed. 2d342, 96 S.Ct. 2392 (1976)

18. Ibid

19. Ibid

20. Ibid

21. Ibid

22. Ibid

23. Giglio v. US, 405 U.S. 150, 92 S.Ct. 763, 31L.Ed.2d 104 (1972)

24. Black’s Law Dictionary (8th ed. 2004).

25. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3L.Ed.2d 1217 (1959)

26. Giglio v. US


28. US v. Bagley

29. Giglio v. US


31. US v. Bagley

32. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131L.Ed.2d 490 (1995)

33. US v. Bagley

34. United States Constitution, 14th Amendment

35. Kyles v. Whitley

36. Giglio v. US

37. Ibid

38. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157L.Ed.2d 1166 (2004) (citations omitted).


40. Bibas, Stephanos, The Story of Brady v. Maryland:From Adversarial Gamesmanship Toward the Search forInnocence, Criminal Procedure Stories, Carol S.Steiker, ed., Foundation Press (2006)

41. Ibid

42. Ibid

43. Ibid

“Regardless of the facts of a particular case, when a Brady issue arrises, it encompasses the guiding precept of our system of criminal justice: the protection of the accused

but presumed innocent citizen.”

12 SUMMER 2006

Against Mandatory ReportingBy Alan Duncan

Although Atticus Finch’s most famouswork is his appointed representation of TomRobinson in the movie To Kill a Mockingbird,his little-discussed representation of WalterCunningham is deserving of greater consider-ation. In the earliest scenes of the movie, webear witness to Walter uncomfortably “pay-ing” Atticus for his legal services in hickorynuts. After Walter leaves, Atticus asks hisdaughter, Scout, not to call him the next timeWalter brings something for Atticus because it

embarrasses Walter to be thanked. Scout tellsus later that the Cunninghams “won’t takenothin’ from nobody.” Nonetheless, weexpect that Atticus’ legal services will never befully paid in hickory nuts. But, it probablywas not money or hickory nuts that motivat-ed Atticus to work for Walter, or for TomRobinson. And, it most definitely was not thepossibility of billing some pro bono hours thathe could report to the State Bar that motivat-ed Atticus. No, it was a much higher calling towhich Atticus responded—to do the rightthing.

The first definition of “pro bono” offeredby Black Law Dictionary (6th ed.) is “for the

good”. Pro bono work—work for the good—exemplifies in many ways that noble characterthat distinguishes the law as a professionalcalling rather than a mere job or even a career.Noble character is not something discrete andfinite to be checked-off a list of things to do.Rather, it is an ongoing, daily obligation ofprofessional conduct. The value of pro bonowork is not readily measurable in hours norappropriately tracked through a mandatoryreporting requirement. Instead of appropri-ately recognizing the nobility of pro bonowork, such a reporting requirement cheapensit.

The reporting requirement will do little to

Should Attorneys Be Required toReport Pro Bono Hours?

B Y A L A N W . D U N C A N , R E I D C . “ C A L ” A D A M S J R . , A N D M U R R A Y C . “ T R I P P ” G R E A S O N I I I

An issue that

the council

of the

N o r t h

Carolina State Bar may ultimatly be asked

to consider is whether North Carolina’s

lawyers should be required to report annu-

ally the amount of pro bono service they have provided. Below are two points of view concerning this issue.


advance our desire to encourage and developa greater sense of professionalism in NorthCarolina lawyers. Certainly, it is possible thatlawyers may be motivated by such a require-ment to work a greater number of hours freeof charge. Lawyers are on the whole a goal-ori-ented, over-achieving lot. If faced with amandatory requirement to report the numberof hours worked free of charge, it can beexpected that some lawyers will try to ensurethat they have something to report come year-end. However, simply working “free ofcharge” does not necessarily evidence profes-sionalism. Providing free services is not entire-ly synonymous with working pro bono or forthe good.

While we should applaud the provision ofservices to those who cannot afford them, it isreally the sense of professional calling andobligation that we seek to foster and ingrain inall lawyers. In terms of professionalism, thereason that a lawyer provides such services is asimportant as the provision of the services. Isthere a genuine desire to do the right thing oris it simply to meet a reporting requirement?The answer to that question matters to thefuture of our profession.

Just as the reporting requirement mayencourage more free hours of legal serviceswithout developing a greater sense of profes-sionalism, it follows that the reportingrequirement may not generate meaningfulinformation concerning the professionalismof the members of the North Carolina StateBar. While the report may indicate theamount of free services (measured only inhours) provided by North Carolina lawyers, itcannot be a reliable indicator of the profes-sional character of the Bar.

If anything, a reporting requirement willprovide an incomplete and likely under-whelming picture of the professional charac-ter of North Carolina lawyers. Specifically,this requirement is narrowly focused on theprovision of free legal services. However, thisis but one of the many ways that lawyersanswer their professional calling to service.For example, many North Carolina lawyers

serve our state through participation on theboards of charitable organizations, volunteer-ing to help with the development of ouryouth, and by serving in elective office inlocal and state government. By focusing ourspotlight on the provision of free legal servic-es, we unnecessarily risk casting a shadow onor, worse yet, deterring participation in theseand other equally important areas of publicservice, some of which are greatly in need ofadditional participation by members of ourprofession.

Professional character development ofNorth Carolina lawyers should be a para-mount concern for all lawyers. However, theimposition of a reporting requirement to arti-ficially increase the number of hours of freelegal services is far from the best way to fosterprofessional character development. Instead,let us commit ourselves to mentoring andleading one another by example. Significantefforts at mentoring new members of our pro-fession are needed, and that is a responsibilityshared by each of us.

Indeed, professional character and recog-nition that his own conduct would serve asan example to others is what motivatedAtticus Finch in To Kill a Mockingbird.When Atticus explains to Scout why heaccepted representation of Tom Robinson,he tells her that he did so mainly because ifhe refused, he would not be able to hold hishead up in town or tell Scout or her brothernot to do something ever again. Atticus wasnot motivated by money or hickory nuts ora reporting requirement. He was moved byhis professional training and moral compassto do the right thing. Like Atticus, let us bemotivated by the desire to daily practice lawand live in our communities in a way thatexemplifies that noble character of our pro-fessional calling. Nothing less is called forand no amount of regulated reporting willinspire these necessary qualities in us.

Alan Duncan is with the Greensboro firm ofSmith Moore, LLP. Mr. Duncan is a member ofthe Supreme Court of the United States, Court ofAppeals for the Fourth, Ninth, and DC Circuits,

and various federal district courts, including theUS District Courts for the Eastern, Middle, andWestern Districts of North Carolina.

For Mandatory ReportingBy Cal Adams and Tripp Greason

Each attorney in North Carolina has anobligation to provide pro bono legal services tothe disadvantaged citizens of North Carolina.Rule 0.1 of the Revised Rules of ProfessionalConduct of the North Carolina State Bar. TheNorth Carolina Bar Association encourages itsmembers to provide pro bono legal services tothe poor. The question under consideration iswhether attorneys should be required toreport the number of pro bono hours theyperform each year. This is not a discussionabout whether pro bono should be required.In fact, the authors are not in favor of arequirement that attorneys perform pro bono.Rather, this article sets forth the rationale forNorth Carolina to take a leadership positionand require its attorneys to report their probono work.

Situational AnalysisOn November 3, 2005, Chief Justice I.

Beverly Lake Jr. signed a Supreme CourtOrder which created the state’s Equal Accessto Justice Commission for the purpose of“expand[ing] access to civil legal representa-tion for people of low income and modestmeans in North Carolina.” (Order, at 1.) Thequestion that flows from this touchstone ofcommission responsibility to every member ofthe State Bar and Bar Association is: “Howcan we help the commission meet its respon-sibilities and reach its goals?”

It is clear that the commission will not beable to close the gap between legal need andrepresentation without an accurate, reliable,and predictable measurement of pro bonopractice across our state, and that the simple,first step is to take the Bar’s pro bono pulse bytailoring and implementing a mandatoryannual pro bono reporting system.

“The value of pro bono work is not readily measurable in hours nor appropriately tracked through a mandatory reporting requirement. Instead of appropriately recognizing the

nobility of pro bono work, such a reporting requirement cheapens it.”

14 SUMMER 2006

Properly Tailored Pro Bono Reporting:Accurate, Efficient, Economical, andPrivate

We can already hear Henny Penny tellingTurkey-lurkey that “the sky is falling, and Imust go and tell the king!” Requiring attor-neys to report their pro bono hours would vio-late the constitutional rights to privacy andfreedom from involuntary servitude! Pro bonoreporting will be counterproductive becauseits true purpose is to shame lawyers intoaction! An onerous responsibility! The presswill use this information to criticize the Bar!

A pro bono reporting system tailored to therequirements set forth in the Equal JusticeCommission Order will present no suchproblems. Rather, such a reporting system willprovide the commission with a simple mech-anism for collecting the data it must have tocarry out its responsibilities and meet its goals.It will enable Legal Aid of North Carolina todetermine where it needs to devote itsresources and where it should intensify itsefforts to recruit pro bono attorneys. It willalso make the legal communities throughoutthe state aware of how well they are doing infulfilling their obligations to provide pro bonowork.

Although increasing pro bono participa-tion is not the rationale behind the proposedimplementation of this reporting system, it isreasonable to project that the increases envi-sioned by the commission will occur soonerbecause of a synergy between the commis-sion’s efforts and the reporting system. Inaddition, the privacy concerns of certainlawyers regarding access to and use of report-ed information can be addressed by guaran-teeing that only non-identifying informationbe shared with the commission for the pur-pose of tracking pro bono practice at the judi-cial district level.

In Favor of Mandatory Pro BonoReporting

As the state of Florida has shown,1 manda-tory reporting systems have high responserates and provide an efficient, effective mech-

anism for the collection of reliable data neces-sary both to assess delivery of legal services tothe poor and to design and implement suc-cessful pro bono programs. Moreover, manda-tory reporting is strongly associated with anincrease in delivery of pro bono services.2

For those of limited means, mandatoryreporting promotes increased access to justiceand the (civil) courts. For the individuallawyer, mandatory reporting can raise aware-ness of professional responsibility, the need forpro bono services, and opportunities to pro-vide such service. This reporting system canalso create positive peer pressure for lawyers tobecome involved or increase involvement inpro bono.

For the Bar, the data collected in a manda-tory reporting system can be used to recognizepro bono priorities and structure pro bonoprograms accordingly. In addition to enhanc-ing its own image and increasing the level ofpublic goodwill, the Bar can use this data tosupport the message to the business and leg-islative communities regarding their responsi-bility to fund legal services for the poor. Theincreased internal costs of implementation ofa reporting system can be minimal.

Why Not Voluntary Reporting of ProBono?

As noted by the ABA, the main downsideof voluntary pro bono reporting is that thevoluntary nature of the system leads to lowreporting rates. “The data collected is general-ly not comprehensive and therefore somewhatlimited in value. If a state adopts voluntaryreporting as a means of expanding pro bonoand then gathers only a meager amount ofdata, increased participation as a result of thesystem would be virtually undetectable.”3

Moreover, voluntary reporting systems imple-mented around the country have not hadhigh response rates.4

RecommendationsThe North Carolina State Bar should

require mandatory pro bono reporting, withthe data being released to the public at the

judicial district level. Mandatory reportingwill increase pro bono participation and willenable the legal services community to meas-ure pro bono performance so it will knowwhere to devote its resources or intensify itsefforts.

Cal Adams is with the Winston-Salem firmof Womble Carlyle and serves as chair of thefirm’s Pro Bono Committee. He is also servinghis third two-year term as president of the LegalAid Society of Northwest North Carolina Boardof Directors. Adams earned his JD in 1981 fromthe Wake Forest University School of Law, cumlaude. Tripp Greason is also with WombleCaryle. He earned his JD in 1997 from theUniversity of Montana School of Law. Greson isadmitted to practice before the US District Courtof the Middle District of North Carolina.

Endnotes1. “Florida’s reporting system was implemented in 1993,

over much opposition from the Florida State Bar. In1997, the Florida Supreme Court affirmed its priordecision stating, “the mandatory reporting require-ment is essential to guaranteeing that lawyers do theirpart to provide equal justice.” The system elicited 90%response rates in 1997 and 1998, 87% in 1999 and88% in 2000. To date, it, along with Florida’s circuitcourt pro bono committee system has brought aboutsignificant increases in participation, the number ofvolunteer hours and monetary contributions. Thecommittee system creates local responsibility for usingthe data acquired through reporting to develop specif-ic plans and new projects as needed in each circuit.”(State Pro Bono Reporting: A Guide for Bar Leaders andOthers Considering Strategies for Expanding Pro Bono,http://www.abanet.org/legalservices/probono/report-ingguide.html (updated August 2002).)

2. Id. (Actual increase in delivery of legal services to thepoor in Florida.)

3. Id.

4. “The response rates in the states with voluntary report-ing systems are far lower than the high response ratesseen in Florida under its mandatory system. Althoughactual pro bono participation could be high and simplyunreported in the states with voluntary systems, thatinformation is unknown and unknowable. Further,voluntary reporting systems could increase awarenessof pro bono responsibility and the increased awarenesscould lead to increased participation. However, thelarge number of attorneys who choose not to reportlimits and conclusions that can be drawn.” (Id.)

“Mandatory reporting will increase pro bono participation and will enable the legal services community to measure pro bono performance so it will know

where to devote its resources or intensify its efforts.”

16 SUMMER 2006

Effective Advocacy in MediationB Y G . N I C H O L A S H E R M A N

Preparing a Pre-mmediation Submission A pre-mediation submission is designed

to educate the mediator about the generalnature of the dispute, to identify the issuesto be resolved, and to set out the basic con-tentions of the parties. If your mediator doesnot prohibit you from making a pre-media-tion submission, sending one to him or herwill often be useful. Because the basic pur-pose of the submission is to give the media-tor an overview of what the dispute is about,be brief and to the point.

For example, in a two or three page letter,set out in a non-argumentative tone:

(1) The basic facts of the case giving rise

to the dispute,including theamount of anyspecial dam-ages;(2) If a lawsuithas been filed,the basic legal claims, and defensesinvolved;(3) If no lawsuit has been filed, the basiccontentions of your client;(4) The issues to be addressed;(5) The status of prior negotiations andthe latest settlement offers if mentioningthem would be instructive to the media-

tor in understanding the dispute; and(6) A concluding sentence that confirmsthe time and place of the upcomingmediation, along with an expression ofyour hope that the mediation might besuccessful in resolving the case.Mediators don’t want to read voluminous

pre-mediation materials. If, before the medi-

Effective advocacy in mediation requires an under-

standing of (1) how to prepare a pre-mediation

submission to the

mediator; (2) how to

present your opening statement; and (3) what to do during the pri-

vate caucuses. This article provides some suggestions about these

matters so that you can be a more effective negotiator in the medi-

ation process.

Bruno Budrovic/images.com


ation, it is absolutely necessary for the medi-ator to understand certain matters containedin voluminous documents, summarize thatinformation in an attachment to your lettersubmission. At the mediation, the mediatorwill have ample time to review any docu-ments that may become the focal point ofdiscussion.

Unless otherwise agreed between the par-ties, you should send a copy of your pre-mediation submission to opposing counsel.Because this means that opposing counsel’sclient will likely read the submission, beobjective in your summary of the facts andcontentions, and draft the submission in away that does not unnecessarily escalate thedispute or otherwise impair the prospects forconstructive negotiations. Even if it is agreedthat your submission will be sent to themediator ex parte, it should not be written inan excessively argumentative tone that willundermine your credibility with the media-tor.

Making the Opening StatementMany lawyers who are inexperienced in

mediation unwittingly equate the processwith a trial. For instance, many lawyers willdeliver an opening statement at mediationthat sounds much like a trial opening state-ment and closing argument wrapped intoone: the facts are meticulously set out; thekey points of law are explained; the facts areapplied to the law; the other side’s proof isattacked; and the presentation is concludedwith a pronouncement that the lawyer’sclient must be the winner. The advocatethen turns to the mediator, as if looking at ajury to say, “Please render a verdict in ourfavor.”

This approach is inappropriate because itasks the mediator to do what he or she can-not do—decide the case and declare a win-ner and loser. Such an opening statement isentirely at odds with the mediator’s role asan impartial facilitator of an agreement.Unlike a trial, where the outcome is a deci-sion on the merits, in mediation the onlyoutcome is an agreement or no agreement.In either case, neither side leaves the media-tion with a verdict of victory or defeat.

Thus, the appropriate function of anopening statement in mediation is not toconvince the mediator about which sideshould win or lose, but to motivate and con-vince the opposing party to enter into a sat-isfactory agreement. This means that the

opening statement should present the facts,law, and themes of the controversy in a waythat points to a possible resolution of thedispute and encourages the other party toseek the same. The content and tone of theopening statement should treat the otherparty with respect, avoid personal attacks,convey a willingness to fairly consider theother side’s points of view so that it will fair-ly consider yours, avoid threats or ultima-tums, and allow the other party to consider

the case from the perspective of your client’sreal needs and interests—i.e., why he or shehas taken a particular position and why aparticular resolution is important to him orher. These elements of an effective openingstatement should be incorporated in a pres-entation that otherwise addresses thestrongest aspects of the case from your side,potential ways for settling the case, potentialoutcomes if the case went to trial, and therisks and costs of not reaching an agree-

ment. For example, in a routine personal injury

case, the opening statement for plaintiff ’scounsel might consist of the following:

(1) A summary of how the accidentoccurred;(2) An explanation of the plaintiff ’s the-ory of liability (if liability is in issue);(3) A summary of the plaintiff ’s course ofmedical treatment;(4) A summary of the diagnosis andprognosis for the plaintiff ’s injuries;(5) A summary of how the plaintiff ’sinjuries have affected his or her life;(6) An itemization of the plaintiff ’s spe-cial damages; and(7) An expression of willingness to fairlyconsider all aspects of the case to the endthat it might be resolved.Defense counsel’s opening statement

might then consist of the following:(1) An explanation of any additional factsabout how the accident occurred;(2) An explanation of the defendant’stheory of liability (if liability is in issue);(3) A summary of any time gaps in theplaintiff ’s medical treatment, and anymedical treatment that appears to havebeen unnecessary;(4) Any references in the medical reportsto a pre-existing medical condition; orany ambiguities in the reports aboutdiagnoses, the plaintiff ’s prognosis, orextent of injury;(5) An itemization of any special dam-ages that are unwarranted in the case;(6) An expression of apology to the plain-tiff or similar expression of regret abouthow the accident has affected the plain-tiff; and(7) An expression, like that of plaintiff ’scounsel, of a willingness to fairly consid-er all circumstances of the case with thehope that it might be settled.The particular type of case involved, its

gravity or complexity, and the dynamics ofthe parties must all—of course—be takeninto account in deciding what would bemost appropriate to say in the opening state-ment and how to present it. For example, inan appropriate case, consider the following:

Having your client take part in theopening statement by explaining his orher injuries or how the accident hap-pened; Using audiovisual aids such as models,

charts, diagrams, photos, a video, a

PowerPoint slide presentation, or a com-puterized simulation; Displaying potential trial exhibits; Providing all participants with a note-

book of documents to refer to during theopening statement or for other use dur-ing the mediation; Suggesting an appropriate agenda for

the mediation, or outlining the parame-ters of a potential settlement; Acknowledging certain strengths in

the case of the opposing party, but point-ing out that there are two sides to thestory and that the risks and costs of liti-gation for both sides warrant a reasonedeffort to try to resolve the case by agree-ment; Making an initial offer and explaining

the reasons behind the offer; Suggesting that at the conclusion of

the opening statements, both sidesengage in a free-flowing, uninhibited dis-cussion about the dispute and possibleways to resolve it before engaging in theprivate caucuses; Establishing a reasonable deadline for

completing the mediation session.

Using the Private Caucuses In most cases, the private caucuses are the

most important part of the mediationprocess. Here, the mediator obtains infor-mation; generates and discusses potentialsolutions; assesses, selects, and communi-cates specific proposals; works to createmovement in the negotiations; and helps theparties reach and finalize an agreement. Toadvocate effectively during the private cau-cuses, you must actively participate in allthese functions and assist the mediator’sefforts. In this regard, consider the follow-ing:

1. Don’t try to manipulate the mediator.Trying to manipulate the mediator throughmisrepresentation or disingenuous tactics(such as bluffing, making escalating or falsedemands, or reversing position, and the like)is a bad idea for three reasons.

First, most mediators are trained to rec-ognize manipulation attempts and can usu-ally spot them immediately. Asking themediator to threaten or play hardball withthe other side is likely to be futile becausemediators are heavily schooled in coopera-tive and principled problem-solving negoti-ation.

Second, although the mediator cannot

resolve the case in your favor or compel theother party to settle on your terms, you wanthim or her to respect you as a credible advo-cate who has assessed the case realisticallyand is making reasonable proposals for set-tlement. Even mediators who have a strin-gent “facilitative” philosophy about media-tion—those who refuse to give any sort ofcase evaluation—are constantly assessing theextent to which a party’s interests, objectives,analyses, and settlement proposals are rea-sonable and realistic. Thus, your credibilityon these matters will affect how fervently themediator encourages the other side to seri-ously consider your offers.

Third, trying to manipulate the mediatorwill impair his or her ability to move thenegotiations along in helping the other partyunderstand and accommodate your client’sinterests and objectives. The techniquesmediators use to facilitate productive negoti-ations can be effective with the other sideonly if you are candid with the mediator.

2. Help the mediator obtain informa-tion. If your client is articulate, credible, lik-able, and persuasive, let him or her partici-pate actively in the caucuses and respondfreely to the mediator’s questions. If yourclient is angry or distraught about the eventsgiving rise to the dispute, he or she mighteven express these feelings directly. Themediator will often respond favorably toyour client’s “humanity” and likeability andmay even mention his or her credibilitywhen meeting with the other side.

On the other hand, if your client is reti-cent or uncomfortable about participatingactively in the private caucuses, intercedeand respond yourself to the mediator’s ques-tions and comments. Don’t hesitate to vol-unteer all pertinent information to help themediator understand the dispute and poten-tial pathways to a resolution.

The mediator will often ask why yourclient has taken a particular position orthinks a specific objective is important. Inasking these questions, he or she is usuallytrying to assess the possibility of nonmone-tary solutions to the dispute; for even if thecase appears to be solely about money, a set-tlement might still include some nonmone-tary commitments. For example, someclients might be willing to settle for a small-er sum if the wrongdoer agrees to take spe-cific steps to prevent similar harm in thefuture.

You can use the private caucuses not only

18 SUMMER 2006

to give information, but also to obtain it aswell. Tell the mediator what you need toknow from the other side and explain whythis information is essential. Often, themediator will ask for this information fromthe other side without mentioning that therequest came from you.

3. Discuss the case’s strengths and weak-nesses. Private caucusing is a safe opportuni-ty to recognize reality. Each case hasstrengths and weaknesses, and understand-ing both is critical to making a sound deci-sion about settling or going to trial.

Candor in discussing the weaknesses ofyour case is often useful for three reasons.First, it enhances your credibility with themediator. Second, a weakness’ relevancedepends not only on the extent to which itin fact hurts your case, but more important-ly on the extent to which the other side per-ceives that it hurts your case. A candid dis-cussion with the mediator may reveal thatyou either underestimated or overestimatedweaknesses, which may cause you to adjustyour negotiating strategy.

Third, when you acknowledge certainweaknesses, you can also explain how theypale in contrast to your case’s strengths andwhy your opponent’s perception of anyweaknesses in your case is overblown. Theseare points a mediator may emphasize to theother side.

When your case’s weaknesses are notreadily apparent to the other party, you maynot want to volunteer them initially. Waituntil the mediator’s questions or commentsconfront the subject. This way, you canhedge against unnecessarily revealing weak-nesses, while keeping them in the back ofyour mind when you consider whether tomake a concession at a crucial time duringthe negotiations.

4. Specify what information is confiden-tial. The mediator has free reign to sharewith the other party anything you have saidduring your private caucuses that you havenot specified is confidential. This does notmean he or she will reveal everything.Mediators tend to be selective about sharinginformation. Whether and how much theyshare depends on how much they believe itwill advance the negotiations. However,because of the mediator’s general license toshare, before the mediator leaves your privatesession, remind him or her of what informa-tion you expect will be kept confidential.

5. Listen to the mediator’s cues and

clues. Good mediators are good word-smiths. They may use questions to indicatetheir views about the case and to hint atwhat the other side might consider anacceptable resolution. For example, considera mediator who asks: “Are you aware of anysix-figure jury verdicts for this type of case?;”“Do you think the other side would perceiveyour offer as fair?;” or “What would you sayif the other side offered to do X?” Althoughthe mediator may ask these questions solelyto obtain information, depending on thequestion’s context, they may actually mean:“The value you have placed on the case isway out of line;” “Your offer is unreasonableand unrealistic;” and “The other side hastold me they are willing to do X, but youmust give them something in return.”

Thus, carefully consider the context ofthe mediator’s questions and comments dur-ing your private caucuses. Mediators oftenuse rhetorical questions to indicate theirgeneral assessment of the case, the viabilityof your settlement proposals, and what theother side is thinking. Being attuned to thesecues and clues may help you significantly inyour negotiation.

6. Invite the mediator’s perspectivesabout the case. Unless the parties haveexpressly agreed on “evaluative” mediation(in which the mediator is free to commenton the merits of the case and how it mightbe resolved), the mediator will almost neverdirectly express a view about the case’s valueor how it should be settled. This is consistentwith his or her role as an impartial facilitatorof an agreement that only the parties shouldfashion and own.

This does not mean, however, that amediator will be flatly unresponsive whenyou ask for help resolving the case. It isentirely legitimate for you to invite themediator to offer his or her general impres-sions of your and your opponent’s analysis ofthe case, its value, and possible solutions.The mediator’s perspective—preciselybecause it is neutral—is often integral tohelping the parties reach an agreement.

Whether the mediator is willing torespond substantively about these matterswill largely depend on whether he or shethinks you are genuinely asking for assis-tance in understanding the views of theother side to assess the prospects for a reso-lution, or whether you are asking the medi-ator’s “personal opinion” about the merits ofthe case or how to resolve it. For example, if

you ask, “What do you think a jury woulddo in this case?” or “How do you think wecan settle this case?,” many mediators willrespond, “What do you think?” On theother hand, you may get more directresponses if you ask, “How can we best thinkthrough this aspect of the dispute?,” “Whatmight we do to accommodate the other sideabout X?,” or “I wonder, is there anythingmore we should be thinking about to resolvethis case?” Even if the response is still, “Well,what do you think?,” discussing these mat-ters will encourage the mediator to be moreforthcoming with his or her thoughts aboutthe case.

If the mediator appears willing to helppush the parties toward an agreement, youmay be more direct in soliciting his or herviews. For example, you might ask, “What isyour sense of how a jury might react to Xfact, Y theory, or Z theme?” or “How can weencourage the other side to consider X?” Youmight otherwise try to elicit a response bymusing, “I’m having difficulty seeing how ajury would react to the fact that . . . “ or “I’mhaving trouble coming up with somethingelse to offer… I wonder what more we cando.”

In sum, when inviting the mediator’s per-spectives about the case, word your requestscarefully so the mediator does not feel thathis or her responses could be perceived astaking sides. Explain to the mediator thatyour questions are motivated by a genuinedesire to assess the relative strengths andweaknesses of the case and possible ways toresolve it.

7. Don’t disclose your bottom line upfront. It is usually unwise in the initial cau-cuses to tell the mediator your bottom lineposition for an acceptable settlement. Thereare four reasons for this.

First, the opposing party may have evalu-ated the case differently than you think andmight be willing to settle on terms muchmore favorable to your client than you antic-ipated. Second, during the caucusingprocess, you might learn critical informationthat will cause you to change your bottomline. Third, by giving the mediator yourminimum acceptable settlement, you losesignificant control over the negotiatingprocess because the mediator may be reluc-tant to press for concessions from the otherside that are better than your bottom line.

Finally, you may put the mediator in theawkward position—if not the troubling ethi-


cal dilemma—of how to respond candidly ifyour opponent asks whether you have anyfurther flexibility if the party asking thequestion is about to make a final offer that isless (for plaintiffs) or more (for defendants)than what would be acceptable to the otherside. Here, the mediator’s dilemma iswhether to disclose to the plaintiff that moremoney is available from the defendant, orwhether to disclose to the defendant that theplaintiff is willing to accept less than thedefendant’s bottom line.

It is also unwise to reveal to the mediatorthat your client will not, in any event, takethe case to trial. For example, in a low-speed-collision case, a plaintiff might decide at theoutset not to go through the delay, expense,and inconvenience of litigation, but merelyseek to use mediation to obtain a more favor-able settlement from that initially offered bythe defendant’s insurance carrier. A mediatorwho knows that this is the plaintiff ’s onlygoal may be less likely to push the defendanttoward a higher settlement offer.

8. Make reasonable settlement offerswith sound support. As in any negotiation,making offers that are arbitrary or unreason-able may insult the other side, impair yourcredibility, and unnecessarily result in adeadlock of the mediation.

Whenever you make an offer or coun-teroffer, try to give the mediator specific rea-sons for your proposal so he or she may con-vey them to your opponent. If possible,incorporate something the other side wants,or explain why your proposal would benefitthe other side. This will help the mediatorexplain that your proposal is rational and notsimply an auction-like bid.

9. Confer alone with the mediator andopposing counsel, if necessary. Sometimesboth clients may be so emotionally dis-traught that their irrationality will obstructthe mediation process. In these circum-stances, you and opposing counsel mightchoose to meet with the mediator, withoutthe clients, to discuss the problem.

It is best to suggest this to the mediatoroutside the presence of your client, such asduring a break. If you decide to meet pri-vately, explain to your client (or have themediator explain) that the mediator wants aprivate meeting with counsel to discuss howto get the negotiations back on track. Assureyour client that nothing will be decidedabout settling the case without his or her fullknowledge and consent. After the meeting,

either you or the mediator should summa-rize for your client what you discussed andwhat suggestions arose.

10. Suggest mediator problem-solvingtechniques that may help forge an agree-ment. Mediators invariably employ a varietyof problem-solving techniques to help theparties reach an agreement. Quite often, themediator will use these techniques sua sponte,without any express prompting from theparties. However, if you believe that one ormore of these techniques may be particular-ly helpful in forging a satisfactory agreement,suggest them to the mediator. For example,in an appropriate case, you might suggest:

A payment in kind instead of inmoney; A structured settlement or payment in

installments; Payment of a portion of the settlement

to a mutually acceptable charity or otherpublic-interest organization; A future business arrangement or rela-

tionship; A change in an employee’s title or

work status in lieu of, or in exchange for,a smaller pay increase; An undertaking to take certain correc-

tive action to prevent the recurrence ofthe type of accident or injury thatoccurred in the case; A substitution of goods; An apology for what happened; A confidentiality clause in the agree-

ment; A provision to abide by the recom-

mendation of a suitable third party whohas special expertise in the matter in dis-pute; That the mediator present a proposal

to the other side as if it were his or herown idea; That the mediator make a proposal

conditional without communicating acommitment on your part (e.g., “If I canget the other side to do X, will you doY?”); That the mediator present a particular

proposal at a certain time during themediation process when the proposal willhave the greatest impact; That counsel for the parties phone

another lawyer or a law professor theyrespect to render an opinion about therelative merits of a novel or controversiallegal theory; That the mediation be temporarily

adjourned so that the parties mightreconsider their positions or try to comeup with new proposals; That the mediator provide the other

side with a particular rationale for chang-ing position that allows that party to saveface; That the parties recess the private cau-

cuses and reconvene in joint session todiscuss the case.11. Be patient with the mediation

process and take time to privately conferwith your client. A principal advantage ofmediation over traditional inter-lawyernegotiations is that it provides a “process”through which the clients have an opportu-nity to be directly involved in resolving theirdispute; and for many clients, the very processof how they go about resolving their differ-ences is important to them. Workingthrough this process takes time, and there-fore you must be patient with it even thoughhours may pass before the mediation beginsto “get to the point” of substantive negotia-tions over specific terms of a potential agree-ment. If you hurry the process, you maydefeat its fundamental purpose.

In addition, after each private caucuswith the mediator, take the time to conferprivately with your client. As appropriate,discuss the matters raised during the caucusand consider your “next move.” If during acaucusing session you or your client want totalk privately (e.g., to decide what counterof-fer you want the mediator to present to theother side), don’t hesitate to temporarilyrecess the session to confer. Above all,remember that even though you and yourclient have established a game plan for themediation, you should use all that you learnduring the process to modify that plan as cir-cumstances warrant. Indeed, this modifica-tion may be as significant as entirely chang-ing what your client earlier thought was anappropriate bottom line.

G. Nicholas Herman is an adjunct professorat North Carolina Central University School ofLaw and is a litigator with the Brough LawFirm in Chapel Hill, North Carolina. He isthe author of Practical Evidence: The Law,Foundations, and Trial Techniques (2d. ed.West Group 1999), Plea Bargaining (2d ed.LexisNexis 2004), and Legal Counseling &Negotiating: A Practical Approach (with JeanM. Carey and Joseph E. Kennedy) (LexisNexis2001).

20 SUMMER 2006

22 SUMMER 2006

Even for lawyers with no military basenearby, this federal statute is important.There are about 150,000 National Guardand Reserve personnel at present who havebeen called up to active duty, and about40% of the armed forces serving in Iraq areReserve/Guard servicemembers. TheseReserve Component (RC) military mem-bers come from the big cities and smalltowns of America, and lawyers need toknow their way around the basic federalstatute that protects those on active duty.Although previously there was limited cov-erage by the SSCRA for Guard members,the new Act extends protections to mem-bers of the National Guard called to activeduty for 30 days or more pursuant to a con-

tingency mission specified by the presidentor the secretary of defense. 50 U.S.C. App.§ 511(2)(A)(ii).

Replacing the SSCRAUp until the passage of the SCRA, the

basic protections of the SSCRA for the ser-vicemember (SM) included:

1. Postponement of civil court hearingswhen military duties materially affected theability of an SM to prepare for or be pres-ent for civil litigation;

2. Reducing the interest rate to 6% onpre service loans and obligations;

3. Barring eviction of an SM’s family fornonpayment of rent without a court order

The New Servicemembers CivilRelief Act

B Y M A R K E . S U L L I V A N

On December 19, 2003, President Bush signed into law

the Servicemembers Civil Relief Act (SCRA), a com-

plete revision of the statute known as The Soldiers’ and

Sailors’ Civil Relief Act, or SSCRA. With North

Carolina having the third largest military

population in the country, this Act is “must

reading” for attorneys throughout the

state.


for monthly rent of $1,200 or less; 4. Termination of a pre service residen-

tial lease; and 5. Allowing SMs to maintain their state

of residence for tax purposes despite mili-tary reassignment to other states.

The SSCRA, enacted in 1940 andupdated after the Gulf War in 1991, wasstill largely unchanged as of 2003. Congresswrote the SCRA to clarify the language ofthe SSCRA, to incorporate many years ofjudicial interpretation of the SSCRA, andto update the SSCRA to reflect new devel-opments in American life since 1940. Sincemany of the Act’s provisions are particular-ly useful (and potentially dangerous) indomestic litigation, the family law attorneyshould have a good working knowledge ofthem. Here’s an overview of what theSCRA does.

Stays and DelaysThe SCRA expands the application of

an SM’s right to stay court hearings toinclude administrative hearings. Previouslyonly civil courts were included, and thiscaused problems in cases involving admin-istrative child support determinations aswell as other agency determinations whichimpacted servicemembers. Criminal mat-ters are still excluded. 50 U.S.C. App. §511-512. There are several provisionsregarding the ability of a court or adminis-trative agency to enter an order staying, ordelaying, proceedings. This is one of thecentral points in the SSCRA and now inthe SCRA—the granting of a continuancewhich halts legal proceedings.

In a case where the SM lacks notice ofthe proceedings, the SCRA requires a courtor administrative agency to grant a stay (orcontinuance) of at least 90 days when thedefendant is in military service and -

the court or agency decides that theremay be a defense to the action, and suchdefense cannot be presented in the defen-dant’s absence, or

with the exercise of due diligence,counsel has been unable to contact thedefendant (or otherwise determine if a mer-

itorious defense exists). 50 U.S.C. App. §521(d).

In a situation where the military mem-ber has notice of the proceeding, a similarmandatory 90-day stay (minimum) of pro-ceedings applies upon the request of theSM, so long as the application for a stayincludes two things. The first is a letter orother communication that 1) states themanner in which current military dutyrequirements materially affect the SM’sability to appear, and 2) gives a date whenthe SM will be available to appear. The sec-ond is a letter or other communicationfrom the SM’s commanding officer statingthat 1) the SM’s current military duty pre-vents appearance, and 2) that military leaveis not now authorized for the SM. 50U.S.C. App. § 522. Of course, these twocommunications may be consolidated intoone if it is from the SM’s commander.

Family Law SidebarPause for a moment to think through

the potential impact of this stay provisionon the family lawyer and his or her client.How would this affect an action for cus-tody by the non-custodial dad when mom,who has custody, gets mobilization ordersand takes off for Afghanistan, leaving theparties’ child with her mother in Florida?How are you going to get the child backwhen mom’s lawyer interposes a stayrequest to stop the litigation dead in itstracks? If mom has executed a Family CarePlan (FCP), which is required by militaryregulations, leaving custody with thematernal grandmother, will that docu-ment—executed by mom, approved by hercommanding officer, and accompanied by acustodial power of attorney—displace orovercome a court order transferring custodyto dad? Can the court even enter such acustody order given the stay and defaultprovisions of the SCRA? To see how thebattle is being joined in this area, take alook at Lenser v. McGowan, 2004 Ark.LEXIS 490 (upholding the judge’s grant ofcustody to the mother when the mobilizedfather requested a stay of proceedings to

keep physical custody with his own moth-er) and In re Marriage of Grantham, 698N.W.2d 140 (Iowa 2005) (reversing ajudge’s order that stayed the mother’s cus-tody petition when father was mobilizedand had given custody via his FCP to hismother).

On another front, think about support.How does this stay provision affect the cus-todial dad who suddenly stops receivingchild support when his ex-wife is called upto active duty from the Guard or Reserve?When she leaves behind her “day job,” herpay stops and so does the monthly wagegarnishment for support of their children.How can dad get the garnishment restartedwhile she’s in uniform on active duty? Willthe reduction in pay result in less child sup-port? Or will her reduced cost of living inthe military (how much does it cost to livein a tent outside Bagram Air Base inAfghanistan?) have the opposite result?How can dad move the case forward toestablish a new garnishment when he can-not locate her, he might not be able to serveher (if he can locate her), and she probablywill have a bullet-proof motion for stay ofproceedings if dad ever gets the case tocourt?

Additional StaysAn application for an additional stay

may be made at the time of the originalrequest or later. 50 U.S.C. App. § 522(d)(2). If the court refuses to grant an addi-tional stay, then the court must appointcounsel to represent the SM in the action orproceeding. 50 U.S.C. App. § 522(d)(2).

Once again, give this some thought.What is the attorney supposed to do—tackle the entire representation of the SM,whom he has never met, who is currentlyabsent from the courtroom, and who islikely unavailable for even a phone call or aconsultation if he is on some distant shorein harm’s way?

And, by the way, who pays for this?There is no provision for compensation inthe SCRA. How would you respond if herhonor beckons you to the bench next

“With North Carolina having the third largest military population in the country, this Act is ‘must reading’ for attorneys throughout the state.”

Monday and says, “Counselor, I amappointing you as the attorney for SergeantSandra Blake, the absent defendant in thiscase. I understand that she’s in the Army, ormaybe the Army Reserve or NationalGuard. Whatever. Please report back to thecourt in two weeks and be ready to try thiscase.”?

Dangers and DefaultsDoes a stay request expose an SM to any

risks? The SCRA states that an applicationfor a stay does not constitute an appearancefor jurisdictional purposes and does notconstitute a waiver of any substantive orprocedural defense (including a defense asto lack of personal jurisdiction). 50 U.S.C.App. § 522(c) eliminates the previous con-cern that a stay motion would constitute ageneral appearance, exposing the SM to thejurisdiction of the court. This new provi-sion makes it clear that a stay request “doesnot constitute an appearance for jurisdic-tional purposes and does not constitute awaiver of any substantive or proceduraldefense.”

Can you obtain a default judgmentagainst an SM? Broadly construing “defaultjudgment” as any adverse order or rulingagainst the SM’s interest, the SCRA clarifieshow to proceed in a case where the otherside seeks a default judgment (that is, onein which the SM has been served but hasnot entered an appearance by filing ananswer or otherwise) if the tribunal cannotdetermine if the defendant is in militaryservice.

A default judgment may not be lawfullyentered against an SM in his or her absenceunless the court follows the procedures setout in the SCRA. When the SM has notmade an appearance, 50 U.S.C. App. § 521governs. The court must first determinewhether an absent or defaulting party is inmilitary service. Before entry of a judgmentor order for the moving party (usually theplaintiff ), the movant must file an affidavitstating “whether or not the defendant is inmilitary service and showing necessary factsin support of the affidavit.” Criminalpenalties are provided for filing a knowing-ly false affidavit. 50 U.S.C. App. § 521(c).

When the court is considering the entryof a default judgment or order, one toolthat is specifically recognized by the SCRAis the posting of a bond. If the court cannotdetermine whether the defendant is in mil-

itary service, then the court may require themoving party to post a bond as a conditionof entry of a default judgment. Should thenonmovant later be found to be an SM, thebond may be used to indemnify the defen-dant against any loss or damage which he orshe may incur due to the default judgment(if it should be later set aside). 50 U.S.C.App. § 521(b)(3).

When the filed affidavit states that theparty against whom the default order orjudgment is to be taken is a member of thearmed forces, no default may be taken untilthe court has appointed an attorney for theabsent SM.

If in an action covered by this section itappears that the defendant is in militaryservice, the court may not enter a judg-ment until after the court appoints anattorney to represent the defendant. Ifan attorney appointed under this sectionto represent a servicemember cannotlocate the servicemember, actions by theattorney in the case shall not waive anydefense of the servicemember or other-wise bind the servicemember.

50 U.S.C. App. § 521(b)(2).If the court fails to appoint an attorney

then the judgment or decree is voidable.

Attorney for “The Absent”The role of the appointed attorney is to

“represent the defendant.” The statute doesnot say what happens if the SM is, in fact,the plaintiff in a particular domestic case,but undoubtedly this wording is carelessdrafting. Particularly in domestic cases, it isas likely that the SM would be the plaintiffas the defendant, the petitioner as therespondent, and default decrees are soughtagainst both sides, not just defendants.

The statute does not say what tasks areto be undertaken by the appointed attor-ney, but the probable duties are to protectthe interests of the absent member, much asa guardian ad litem protects the interests ofa minor or incompetent party. This wouldinclude contacting the member to advisethat a default is about to be entered and toask whether that party wants to request astay of proceedings. Counsel for the SMshould always renew the request for a stayof proceedings, given the difficulty ofpreparing and presenting a case without theclient’s participation.

The statute also leaves one in the darkabout the limitations of the appointed

attorney. Her actions may not waive anydefense of the SM or bind the SM. What isshe supposed to do? How can she operateeffectively before the court with theserestrictions? Can she, for example, stipulateto the income of her client or of the otherparty? Can she agree to guideline child sup-port and thus waive a request for a vari-ance? Without elaboration in this area, theAct could mean that she must contesteverything, object whenever possible, andrefuse to make even reasonable stipulationsor concessions for fear of violating theSCRA. Such conduct is, of course, at oddswith the ethical requirements that counselact in a professional and civil manner,avoiding undue delay and expense.

Default ProtectionsIf a default decree is entered against an

SM, whether the judge complies with theterms of the SCRA or not, the Act providesprotections. The purpose of this is to pro-tect those in the military from havingdefault judgments entered against themwithout their knowledge and without achance to defend themselves. The SCRAallows a member who has not receivednotice of the proceeding to move to reopena default judgment. To do so he must applyto the trial court that rendered the originaljudgment of order. In addition, the defaultjudgment must have been entered when themember was on active duty in military serv-ice or within 60 days thereafter, and the SMmust apply for reopening the judgmentwhile on active duty or within 90 daysthereafter. 50 U.S.C. App. § 521(g).Reopening or vacating the judgment doesnot impair right or title acquired by a bonafide purchaser for value under the defaultjudgment. 50 U.S.C. App. 521(h).

To prevail in a motion to reopen thedefault decree, the SM must prove that, atthe time the judgment was rendered, hewas prejudiced in his ability to defend him-self due to military service. In addition, hemust show that there is a meritorious orlegal defense to the initial claim. Defaultjudgments will not be set aside when a liti-gant’s position lacks merit. Such a require-ment avoids a waste of judicial effort andresources in opening default judgments incases where servicemembers have nodefense to assert. As part of a well-draftedmotion or petition to reopen a defaultjudgment or order, the SM should clearly

24 SUMMER 2006

delineate his claim or defense so that thecourt will have sufficient facts upon whichto base a ruling.

Interest RatesThe Act clarifies the rules on the 6%

interest rate cap on pre service loans andobligations by specifying that interest inexcess of 6% per year must be forgiven. 50U.S.C. App. § 527(a)(2). The absence ofsuch language in the SSCRA had allowedsome lenders to argue that interest in excessof 6% is merely deferred.

It also specifies that an SM must requestthis reduction in writing and include a copyof his/her military orders. 50 U.S.C. App. §527(b)(1). Once the creditor receivesnotice, the creditor must grant the reliefeffective as of the date the servicemember iscalled to active duty. The creditor must for-give any interest in excess of the 6% with aresulting decrease in the amount of period-ic payment that the servicemember isrequired to make. 50 U.S.C. App. §527(b)(2). The creditor may challenge therate reduction if it can show that the SM’smilitary service has not materially affectedhis or her ability to pay. 50 U.S.C. App. §527(c).

Leases, Liens, and MoreThe SSCRA provided that, absent a

court order, a landlord may not evict a ser-vicemember or the dependents of a service-member from a residential lease when themonthly rent is $1200 or less. 50 U.S.C.App. § 531(a) modifies the eviction protec-tion section by barring evictions frompremises occupied by SMs for which themonthly rent does not exceed $2,400 forthe year 2003. The new Act also provides aformula to calculate the rent ceiling forfuture years. Using this formula, the 2006monthly rent ceiling is $2,615.16.

A substantial change is found in 50U.S.C. App. § 534. Previously the statuteallowed a servicemember to terminate apre-service “dwelling, professional, busi-ness, agricultural, or similar” lease executedby or for the servicemember and occupiedfor those purposes by the servicemember orhis dependents. It did not provide help forthe SM on active duty who is required tomove due to military orders. The SCRAremedies these problems. Under the oldstatute, a lease covering property used fordwelling, professional, business, agricultur-

al or similar purposes could be terminatedby an SM if two conditions were met:

a. The lease/rental agreement was signedbefore the member entered active duty; and

b. The leased premises have been occu-pied for the above purposes by the memberor his or her dependents.

The new Act still applies to leasesentered into prior to entry on active duty. Itadds a new provision, however, extendingcoverage to leases entered into by activeduty servicemembers who subsequentlyreceive orders for a “permanent change ofstation” (PCS) or a deployment for a peri-od of 90 days or more.

It also adds a new provision allowing thetermination of automobile leases (for busi-ness or personal use) by SMs and theirdependents. Pre service automobile leasesmay be canceled if the SM receives ordersto active duty for a period of 180 days ormore. Automobile leases entered into whilethe SM is on active duty may be terminat-ed if he or she receives PCS orders to a loca-tion outside the continental United Statesor deployment orders for a period of 180days or more. 50 U.S.C. App. § 535.

ConclusionThe family law attorney, perhaps even

more than the general practitioner, needs toknow and understand the SCRA for thoseoccasions when a military member is one ofthe parties to the litigation. Mobilizationsand deployments affect mothers andfathers, wives and husbands, and separatedpartners who are in the Reserves, on activeduty, and in the National Guard. They willhave an impact on income, visitation, fam-ily expenses, custodial care for children,mortgage foreclosures, garnishments, and

many other domestic issues.The best source of quick information on

the SCRA is “A Judge’s Guide to theServicemembers Civil Relief Act,” found atthe website of the Military Committee ofthe ABA Family Law Section, www.abanet.org/family/military. An extended treatmentof the SCRA and family law issues may befound in Sullivan, “Family Law and theServicemembers Civil Relief Act,” “LegalConsiderations in SCRA Stay RequestLitigation: The Tactical and the Practical,”Divorce Litigation, Vol.16/ Number 3,March 2004. Also see Sullivan, “TheServicemembers Civil Relief Act: A Guidefor Family Law Attorneys,” in Brown andMorgan, 2005 Family Law Update, pp. 23-54 (Aspen Publishers 2005). The ArmyJAG School’s SCRA guide will be pub-lished and posted on-line shortly, taking theplace of the SSCRA guide which is present-ly available (and still quite useful in under-standing and interpreting the statute). Thiscan be found at the school’s website,www.jagcnet.army.mil/tjaglcs. Click onTJAGLCS Publications, then scroll downto Legal Assistance, and then look for thepublication, which is JA 260.

Mr. Sullivan is a retired Army ReserveJAG colonel who practices with Sullivan &Grace, PA, in Raleigh, NC. He is a board-cer-tified specialist in family law and past-presi-dent of the North Carolina Chapter of theAmerican Academy of Matrimonial Lawyers.He is currently chair of the MilitaryCommittee of the ABA Section of FamilyLaw. This article is an update to “TheSoldiers’ and Sailors’ Civil Relief Act,” pub-lished in the Spring 2002 issue of the NorthCarolina State Bar Journal.


26 SUMMER 2006

Judicial IndependenceThe United States Supreme Court nomi-

nees’ confirmation hearings have broughtjudicial independence to the forefront of hottopics in the media and on Capitol Hill. Thespotlight focuses on where the nomineesstand on the most controversial and partisanissues of the day including abortion, gayrights, and physician-assisted suicide.Disclosure of a nominee’s position on sub-stantive law is a serious threat to judicial inde-pendence. Justice Sandra Day O’Connorobserved that when a candidate expresses aviewpoint on a contentious issue, the candi-date may have prejudged future cases, at leastin appearance, and possibly in reality.1

Judicial independence is the principle thatjudges must decide cases fairly and impartial-ly, relying only on the facts and the law.“Although all judges do not reason alike ornecessarily reach the same decision, decisionsshould be based on determinations of the evi-dence and the law, not on public opinionpolls, personal whim, prejudice or fear, orinterference from the legislative or the execu-tive branches or private citizens or groups.”2

Judges must resist outside influence to main-tain the uncompromised impartiality theiroffices require, including the pressure to dis-close their views on substantive issues duringa judicial selection process.

Although the threats to judicial independ-ence in the federal judiciary are widely publi-cized, tougher judicial independence issuesarise in state courts, especially in states withjudicial elections.

Judicial Elections in State CourtsThirty-nine states hold elections for some

or all judicial offices. Nationally, 87% of allstate judges face an election.3 In these states,

when there isan outcry overa judge’s rul-ing, judiciale l e c t i o n sbecome themost costlyand con-tentious. Inthe 2004 judi-cial elections,$24.4 millionwas spent ont e l e v i s i o na d v e r t i s e -ments, overtwice as muchthan the$10.6 million spent in the 2000 electioncycle.4 Businesses, lawyers, political parties,and special interest groups spent millions ofdollars donating to judicial election cam-paigns and financing their own advertising tosupport and attack candidates.5

The underlying, ulterior motive behindthe clamor is often driven by the aim toreplace the incumbent judge with a morepolitically preferable candidate in the newelection.6 In short, judicial elections are pro-gressively looking more like elections in theexecutive and legislative branches.

But judges are different than other electedofficials and if a state has judicial elections,then the elections should reflect that differ-ence.

Legislative and executive officials serve inrepresentative capacities. They are agentsof the people: their primary function is toadvance the interests of their constituen-cies. Candidates for political offices, inkeeping with their representative role,

must be left free to inform the electorate oftheir positions on specific issues. Armedwith such information, the individualvoter will be equipped to cast her ballotintelligently, to vote for the candidatecommitted to positions the voterapproves….Judges, however, are not political actors.They do not sit as representatives of par-ticular persons, communities, or parties;they serve no faction or constituency. “[I]tis the business of judges to be indifferent topopularity.”7 They must strive to do whatis legally right, all the more so when theresult is not the one “the home crowd”wants.8 Even when they develop commonlaw or give concrete meaning to constitu-tional text, judges act only in the contextof individual cases, the outcome of whichcannot depend on the will of the public.9

Judicial elections present a dilemma forcandidates because their desire to say thingsthat might win votes clashes with their duty to

Electing Judges and the Impacton Judicial Independence

B Y T H E H O N O R A B L E R A N D A L L T . S H E P A R D


ensure due process.10 Judicial candidates areguided in all states by canons of judicial con-duct, including limits placed on a judge’s abil-ity to sit on a case if the judge “decides” thecase during a campaign as well as limitationsplaced on the political activities of judges.

However, in recent years litigants havechallenged these canons. For example, inRepublican Party of Minnesota v. White, decid-ed in 2002, the United States Supreme Courtheld that the portion of Canon 5(A) (3) (d) (i)(2000) of the Minnesota Code of JudicialConduct, providing that a “candidate for ajudicial office, including an incumbent judge”shall not “announce his or her views on dis-puted legal or political issues,” violated theFirst Amendment. In response to the UnitedStates Supreme Court decision in White, theAmerican Bar Association amended its ModelCode of Judicial Conduct.11

Most recently, in August 2005, the 8thCircuit Court of Appeals ruled in the remandof Republican Party of Minnesota v. White thatjudicial candidates may attend political partyconventions, seek political party endorse-ment, and personally solicit campaign fundsas long as the candidate does not know theidentity of the donor. The court held that lim-iting political activity is a violation of freespeech.12

Since the first White decision, judicial can-didates have been receiving more question-naires than ever before from special interestgroups asking them to reveal views on hot-button issues such as, “Have you ever cast apublic vote relating to reproductive rights?”and “Do you support the death penalty?”13

Although many candidates decide against fill-ing out these questionnaires to preserve theirability to sit on cases with disputed issues ifthey should win, the special interest groups letvoters know who refused to respond to theirquestions. For example, the ChristianCoalition of Georgia issued questionnaires totwo Georgia Supreme Court candidates.“Challenger Grant Brantley filled out thegroup’s survey, but incumbent Justice LeahSears refused to respond.” In its direct mail,the Coalition indicated “No Response” fromJustice Sears and then attacked her for con-curring in a decision striking down Georgia’ssodomy law.”14

To Speak or Not to SpeakAs the judicial election waters muddy with

lawsuits, injunctions, pressure from outsidegroups, and changes in judicial codes of con-

duct, how can candidates work to preservejudicial independence?

The positive news is that there are effortsto reform judicial elections and guidance forcandidates to help shield them from politicalpressures:

Judicial Campaign Conduct Committees:The National Ad Hoc Advisory Committeeon Judicial Campaign Conduct, coordinatedby the National Center for State Courts, hasproduced Effective Judicial CampaignConduct Committees: A How-To Handbookwith support from the Law and SocietyProgram of the Open Society Institute. TheHandbook is a step-by-step guide for thosewith an interest in establishing a committeethat will:

1. Educate judges and judicial candidatesabout ethical campaign conduct;

2. Encourage and support appropriatecampaign conduct, and work to deter inap-propriate conduct;

3. Publicly criticize inappropriate cam-paign conduct that cannot be otherwiseresolved; and

4. Protect the public interest in having afair and impartial judiciary.

Additionally, the Ad Hoc AdvisoryCommittee’s website is a clearinghouse forthe by-laws, mission statements, public state-ments, and other materials prepared by vari-ous judicial campaign conduct committees.The Ad Hoc Committee is also available tooffer specific advice on the organization, pro-cedures, and operations of judicial campaignconduct committees.15

Voter Guides: Nonpartisan voter guidesdistributed to the voting public generallycontain biographical and professional infor-mation about candidates. A Justice at StateCampaign poll showed that “more than 67%of Americans surveyed said that receiving anonpartisan voter guide containing back-ground information on judicial candidateswould make them more likely to vote in judi-cial elections.”16

Merit Selection: Merit selection andretention elections are practiced by severalstates. In merit selection, the executivebranch nominates a candidate who is con-firmed by the legislative branch. In theMissouri Plan, adopted by 16 states with fourother states using a hybrid of contested elec-tions and the Missouri Plan, a commissionscreens candidates and recommends a shortlist to the executive branch. When selected,the nominee must stand for reelection after

the first term of service.17

Judicial leadership is perhaps the mostimportant and effective reform. This strategyturns on judges speaking out and educatingthe public on the importance of judicial inde-pendence. “Public outreach efforts promotejudicial independence, because they enablecitizens to evaluate critical attacks on judgesand to value judicial independence.” Judgesand lawyers must be community educatorsreaching out to the public, the media, and theexecutive and legislative branches of govern-ment to preserve the independence of thejudiciary.

Randall T. Shepard, chief justice of Indiana,is chair of the National Center for State CourtsBoard of Directors and president of theConference of Chief Justices. Chief JusticeShepard is recognized as a national leader instate courts issues, such as protecting judicialindependence, improving judicial selection, andrevising the judicial model code.

The National Center for State Courts, head-quartered in Williamsburg, VA, is a non-profitcourt reform organization dedicated to improv-ing the administration of justice by providingleadership and service to the state courts. Formore information on judicial independence andjudicial elections, visit the National Center forState Courts’ website at www.ncsconline.org.

Endnotes1. Randall T. Shepard, Telephone Justice, Pandering, and

Judges Who Speak Out of School, 29 Fordham Urb. L.J.811, 816 (2002).

2. Shirley S. Abrahamson, Judicial Independence as aCampaign Platform, Bench & Bar of Minnesota, Vol.61, No. 10 (November 2004).

3. Eleven states have appointment systems without anytype of judicial election. Call to Action: Statement ofthe National Summit on Improving Judicial Selection,Expanded with Commentary, The National Center forState Courts 2002, www.ncsconline.org/D_research.

4. Deborah Goldberg, Sarah Samis, Edwin Bender,Rachel Weiss, and Jesse Rutlege (Ed.), The New Politicsof Judicial Elections 2004: How Special Interest Pressureon Our Courts Has Reached a “Tipping Point” - andHow to Keep our Courts Fair and Impartial, at vii.Washington, D.C.: Justice at Stake Campaign, 2004.

5. Id.

6. See Sheila Kaplan & Zoë Davidson, The Buying of theBench, NATION, Jan. 26, 1998, at 11. (“The cam-paign fundraising scandal has drawn new attention tothe way moneyed interests buy political favors inWashington. But far from the nation’s capital, many ofthese same doors operate unchecked in a venue thatmay prove more disturbing than the Lincoln bedroom:

C O N T I N U E D O N P A G E 5 9

28 SUMMER 2006

A district court judge has many roles.

In Criminal CasesDistrict court judges must:Decide who is guilty, who is not;Try to decide who is truthful, who is not;Decide who should stay in jail, whoshould not;Decide what punishment should beexacted in the name of society upon a fel-low citizen and human being. These decisions must be made in accor-

dance with our constitutions, laws, andrules

without regard to who is before us, without regard to who represents them, without regard to what victims, witness-es, families, friends, pressure groups, or“society” want us to do.These are not easy matters to decide—

but they are only a part of the job.

In Family Law CasesDistrict court judges must:Decide what is in the best interest of achild they do not know;Decide who is the better parent betweentwo people who are usually doing theirbest and love their child dearly;Divide the accumulation of propertybetween two parties who shared every-thing “until death do us part” and nowwant nothing to do with each other;Decide who should bear the financialburdens and how to spread limitedincome across two households whereonce there was one.These decisions must be made in accor-

dance with our constitutions, laws, and rules without regard to who is before us, without regard to who represents them, oftentimes when, outside of their marital

relationship, the parties are good, decent,hard-working, God-fearing people andcitizens.These are not easy matters to decide—but

they are only a part of the job.

In Juvenile Law CasesDistrict court judges must:Decide whether to pluck a child up out ofhis home and place that child somewhereelse—whether for his or her protection orpunishment;Determine whether a young girl shouldbe able to abort the birth of a baby grow-ing inside her without telling her parentsor the father;Decide to declare a minor an adult capa-ble of living independent of his or herparents;Determine whether a parent has forfeitedfor all time the right to be a parent to theirchild, no matter how much they may lovethe child they helped create.These decisions must be made in accor-

dance with our constitutions, laws and rules without regard to who is before us, without regard to who represents them, without regard to what the juvenile, theparent, our families, friends, or “society”want us to do.These are not easy matters to decide—but


Within the System of Justice District court judges are administrators:Charged with efficient use of time, space,resources, and people;Charged with moving cases, completingdockets, writing and signing orders andjudgments, being tough on crime, and keeping the jails from being over-crowded;Charged with herding cats—attorneys,

litigants, witnesses, and appropriate courtpersonnel—to the same place, at the sametime, so cases can be heard;Charged with creating, enforcing, andbending rules in order to see that hearingsare accomplished fairly, openly, expedi-tiously, and judiciously.District court judges are examples,arbiters, and evaluators of civility, deco-rum, integrity, and dependability. District court judges are but one part of a

larger machine that can only work if there isequal work and responsibility from all theother parts

The DA and defense attorney,The plaintiff ’s and defendant’s lawyer,The community corrections officer andjuvenile court counselor, the clerk, bailiff,law enforcement officers, and other asso-ciated court agencies.These actions must be done in accordancewith our constitutions, laws, and rules, without regard to who is before us, without regard to personal relationships,

C O N T I N U E D O N P A G E 6 5

The Many Hats of a DistrictCourt Judge

B Y J O S E P H E . T U R N E R

Sandra Dionisi/images.com


Promoting Democracy and theRule of Law in Iraq

B Y G I L L P . B E C K

In January 2005, I was deployed as part of the United States Army Reserve to Camp Victory, Baghdad, Iraq,

in the ancient land of Mesopotamia, often referred to as the “Cradle of Civilization,” between the Tigris and

Euphrates Rivers. I served as the staff judge advocate for Task Force 134 (Detainee Operations), Multi-

National Forces-Iraq

(MNF-I) from January to June 2005. As staff judge

advocate, I supervised and directed a 45-person staff

of judge advocates, paralegals, interpreters, and securi-

ty personnel in the prosecution of terrorists in the

Central Criminal Court of Iraq (CCCI), in reviewing

detainees for release under the procedures of the

Combined Review and Release Board (CRRB), and in providing legal advice to Major General (MG) Brandenburg, the commanding gener-

al of Task Force 134, on a wide variety of detainee legal issues. Working closely with Iraqi judges, prosecutors, and government officials, I saw

on a daily basis courageous efforts to establish democracy and the rule of law in Iraq. What I saw gave me a deeper understanding of the nature

of democracy, the importance of the rule of law, and renewed optimism for the future.

Colonel Gill P. Beck (center) at the Central Criminal Court of Iraq with LieutenantColonel Gary Nunn (right) and Major J. Ed Christiansen (left).

30 SUMMER 2006

Promoting Democracy in IraqIn January 2005, I witnessed the Iraqi peo-

ple participate in the election of the IraqiTransitional Government. For the Iraqi peo-ple, whose history traces back thousands ofyears to the Sumarian, Babylonian, andAssyrian civilizations, this was their firstopportunity to vote in free elections, and theydid so in large numbers, far exceeding voterturnouts on a percentage basis in Westernnations despite terrorists attacks on the votingsites. Shortly after the election, MGBrandenburg and I met with the deputyprime minister and other Iraqi governmentofficials who, with great pride, spoke of thecourage of the Iraqi people in the face of ter-rorism. Reports of mortar attacks and suicidebombers attacking voting sites were frequent,but in each case the Iraqi people, following theattack, would return to the voting lines.Reports were received of suicide bomberswho, while attempting to disrupt the votinglines, were tackled by brave Iraqi citizens whorefused to be intimidated by terrorists. In onereport, a mother standing in line with herchild was injured and her child killed, yet themother, recognizing that she could do noth-ing more for her child, and with her dead

child in her arms, refused to leave until shehad voted.

These events underscored the courage anddetermination of the Iraqi people in theirefforts to establish democracy in their country.As I tried to understand what I was observing,thoughts came to mind of what Americanpatriots must have felt as they risked all inorder to establish a democracy in this country.The courage of the Iraqi people in votingseemed to draw from the same basic humanyearning for freedom that motivated PatrickHenry to declare “Give me liberty or give medeath” and that motivated other Americanpatriots to risk all to establish a democracy inthis country.

I observed that after decades of tyranny,the January 2005 election awoke in the Iraqisa renewed spirit of freedom and hope. Votingembodied and symbolized that freedom. TheIraqi people with whom I spoke recountedwith pride their sense of fulfillment in votingin a free election for the first time. Manyviewed it as an act of defiance of SaddamHussein and his repressive regime, and therewere frequent remarks that a person had aduty to vote and by doing so symbolicallypaid Saddam Hussein back for years of tyran-ny. I heard many Iraqis say voting was stab-bing a dagger in Saddam Hussein’s heart.Regardless of their motivation, Iraqis proudlydisplayed their purple ink-stained fingers as abadge of courage, to demonstrate that theyhad participated in the elections that wouldestablish their country’s future.

I also saw, in the Iraqi embrace of democ-racy, part of a worldwide democratic trendthat over the past 100 years has seen democ-racy as a form of government outdistanceother forms of government, so that nowdemocracies have emerged in 119 countries,comprising 62% of all of the countries of theworld.1 The Iraqi people have seen the liber-ating effect of democracy and have embracedit fully. They have said “yes” to democracythrough their actions in voting in the face ofgreat personal threats of terrorism. Now, asnever before, I understand that we in Americaare blessed with a great democracy, and thatthe democratic trend strikes a universal chordbecause its trust is in people—not kings, dic-tators, or tyrants—to determine the course oftheir future. I also understand that votingexpresses and symbolizes human freedom.

Promoting Rule of Law in IraqFollowing the elections, I saw that democ-

racy or “rule of the people” from its Greekroot, as wonderful as it is, must be buttressedwith the rule of law. “Rule of law” is a broad,encompassing concept that has beenexpressed in various ways in our country.Chief Justice John Marshall in Marbury v.Madison, 5 U.S. (1 Cranch) 137, 163 (1803),wrote that American government would ceaseto be “a government of laws, and not of men,”if its “laws furnished no remedy for the viola-tion of a vested legal right.” Frequently in ourhistory it has been observed that the law holdsall people accountable, or as PresidentTheodore Roosevelt said, “No man is abovethe law and no man below it . . . .”2 Rule oflaw involves many legal themes including: (1)the law must be understandable so that it mayguide people’s behavior, (2) the law should bethe supreme and apply to all persons, and (3)courts should be available to enforce the lawand provide fair procedures.3

I found that Iraqi lawyers, judges, and gov-ernment officials are equally dedicated to theprinciples of rule of law. These attorneys,whose civil law heritage differs markedly fromour common law heritage, view the law andthe legal profession as noble callings. Theytrace with pride Iraqi’s legal heritage, andwhen rule of law is mentioned, they point to1792 BC to 1750 BC, when Hammurabiruled Babylon, an area in modern day AlHillah, south of Baghdad. Hammurabi prom-ulgated a Code of Laws for his kingdom, animportant step in the development of the ruleof law, when for the first time laws were put inwriting in a systematic fashion and madeavailable for the public. In the preface to thelaws, Hammurabi wrote that promulgatingthe law will “bring about the rule of right-eousness in the land, destroy the wicked andthe evil-doers, so that the strong should notharm the weak . . . and enlighten the land, tofurther the well-being of mankind.”4

For Iraqi lawyers and judges, Hammurabiand the rule of law is a reality that was inter-rupted by the reign of Saddam Hussein, whoelevated himself above the law. In one meetingwith a large group of judges, I heard repeatedexamples of how Saddam Hussein and hissons had disregarded the law and used it fortheir own personal advantage. Towards thatend, Saddam Hussein established theBaghdad Revolutionary Court, and specialtemporary courts under his control, fromwhich no appeals were allowed,5 and he andhis sons intimidated the judiciary. Iraqi judgestold me of family members who had been

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The 2006 Lawyer’s Handbook was notmailed to any member of the State Barwhose address in the official records ofthe State Bar is outside the state ofNorth Carolina. However, all of theinformation contained in theHandbook can be found online at theState Bar’s website, www.ncstatebar.org.The website contains all current regula-tions, Rules of Professional Conduct,and adopted ethics opinions. A pdf ofthe 2006 Handbook can also be down-loaded by logging into the MemberAccess section.

If you would still like to obtain a paperedition of the Handbook, please contactthe [membership department] by call-ing 919.828.4620.

killed at the direction of Saddam Hussein indisregard of the law. One judge told me ofbeing approached by Uday Hussein and toldto enter a judgment of conviction for a groupof ten prostitutes. The judge had indicatedthat the law required a trial, and the responsefrom Uday Hussein was that no trial was nec-essary because the women had already beenexecuted. This Iraqi judge, at great risk tohimself and his family, refused to the enter thejudgment of conviction and paid for it dearly.In doing so, that judge demonstrated that theconcept of rule of law—that the law issupreme and that courts must enforce the lawthrough fair procedures—was a reality thatIraqi jurists would not disregard regardless ofthe consequences.

In January 2005, several Iraqi judges wereassassinated or the subjects of assassinationattempts by terrorists. The terrorists in target-ing the judges understood the central role thatthe rule of law plays in a society. The terroristshoped to undermine the rule of law andreplace it with chaos. Despite their attempts,the Iraqi judges were not deterred, butstrengthened in their commitment to bringthe rule of law to Iraq. On a daily basis, I sawbrave Iraqi judges demonstrate their commit-ment to the rule of law even at great personalrisk for themselves and their families.

Through the terrorists acts, and what theysought to destroy—judges, lawyers, police,and government officials—I understood bet-ter what the rule of law means. I understoodthat the rule of law unifies a society. The ter-rorists in Iraq are somewhat like theShakespearean character “Dick the Butcher”who, as part of the gang of Jack Cade, whentalking about overthrowing the monarchy,said “The first thing we do, let’s kill all thelawyers.”6 The terrorists in Iraq, like Dick theButcher, know that the rule of law providesthe fabric that holds society together and thatdestroying the lawyers and judges tears apartthe fabric of society. Despite being in the“cross-hairs” of the terrorists, the Iraqi judgesand lawyers continued to re-establish the ruleof law in Iraq. Their courage and commit-ment was inspiring and demonstrated to methe integral role of attorneys, judges, and the

law to a society’s proper functioning.Promotion of the rule of law in Iraq also

requires improvement of police and investiga-tive techniques. Historically, the Iraqi policerelied on confessions, which too often werecoerced. As a result, the Iraqi courts developedsafeguards to counter the problem of unreli-able, coerced confessions. Those proceduresincluded requiring special formalities for out-of-court confessions, including a special affir-mation of truthfulness, a thumbprint, andother formalities. An out-of-court confessionthat did satisfy those formalities was givenminimal weight, if any. Additionally, a twowitness procedural rule was applied to provecriminal conduct. In preparing evidence forpresentation to Iraqi prosecutors, militaryjudge advocates and American law enforce-ment personnel worked to facilitate the Iraqilegal system’s movement from a confession-based to a forensic-based system, with greaterreliance on explosive residue and fingerprintevidence.

This transition, however, was not easybecause it required retraining of almost theentire Iraqi police force. One American policetrainer relayed a story about a training sessionin which an Iraqi police trainee had skillfullyobtained a confession from an individualbelieved to have attacked American soldiers.The American law enforcement instructortold the trainee that the job was not completeuntil the paperwork was finished; that it wasnecessary to prepare a written report of theconfession, and to put the confession in theproper form so that the Iraqi court wouldaccept it into evidence. The trainee did notrespond. The trainer repeated the instruction,and again the trainee did nothing. TheAmerican advisor then asked why the traineewas not preparing the written records of theconfession. Another Iraqi trainee interjected,“He can’t read or write,” to which anAmerican advisor aptly commented, “But hesure knows how to get a confession.” Despitethese challenges, every day, more and moreIraqi police officers are being trained and areassuming their role in combatting terrorism.

Saddam Hussein recognized the centralimportance of rule of law in Iraq’s future when

facing imminent defeat in 2003. He directedthat the prison doors be opened, freeing tensof thousands of murderers and other criminalsinto cities throughout Iraq. What ensued wasto be expected. Courthouses were ransacked,and court and police records destroyed. In theyears that followed it was not unusual to takea detainee, captured for firing a rocket pro-pelled grenade or setting off an improvisedexplosive device designed to kill American sol-diers, to Iraqi court and have a judge recognizethe individual as a convicted criminal fromyears before. Since his release, however, thecriminal had changed his form of criminalactivity from theft or murder to attackingAmerican soldiers and Marines in terrorist-funded operations.

In 2003 the Central Criminal Court ofIraq (CCCI) was established to promote ruleof law in Iraq. Mindful of the admonition ofT.E. Lawrence (Lawrence of Arabia), who suc-cessfully led Arabic military forces against theTurkish forces in the Middle East in the earlypart of the Twentieth Century, that it is “bet-ter the Arabs do it tolerably than you do itwith your own hands,”7 the CCCI was com-posed of Iraqi prosecutors, panels of threeIraqi judges, and Iraqi defense counsel.Instead of trying to impose a common law,accusatorial prosecution system, the CCCIapplied the Iraqi civil law and inquisitorialprosecutorial model. Pre-Saddam HusseinIraqi criminal procedures and substantive lawwere used. American military prosecutorsassisted in coordinating the appearance of wit-nesses, marshaling evidence, and assisting theIraqi judges as directed, but left the adminis-tration of justice to the Iraqis.

The wisdom of allowing the Iraqis to runtheir own judicial system to deal with terror-ists was readily apparent as they demonstratedrepeatedly that they could better handleadministration of justice in Iraq thanAmericans could. For example, in dealingwith Jihadists—the foreign fighters who haveentered Iraq from Saudi Arabia, Syria, andother countries to wage the holy war—theIraqi prosecutors and judges had the ability tosift through purported explanations of defen-dants with special skill. Often detainees, when


“On a daily basis I saw brave Iraqi judges demonstrating their commitment to the rule of laweven at great personal risk for themselves and their families.”

32 SUMMER 2006

asked why they were in the city in which theywere captured, such as Fallujeh, they wouldprovide a false excuse, such as to attend schoolor to meet with a group of people. The Iraqijudges could pick up on accents and deter-mine whether the individual was truly fromFallujeh or elsewhere. As I learned later, thewritten form of Arabic is understandablethroughout the Arabic world, but the spokenArabic differs markedly from place to place.Repeatedly, the Iraqi judges, through skillfulquestioning and a keen ear for dialects, wereable to obtain admissions from defendantsthat in fact they were from Syria, SaudiArabia, or other countries and that they werein Iraq to wage Jihad.

The CCCI, while initially resistedbecause the Iraqi judicial system had histori-cally relied on provincial courts, was soonendorsed by the Iraqi government and judi-ciary. The CCCI became a “federal” courtsystem that was needed in the effort torestore rule of law in Iraq. Because of insta-bility in portions of the Sunni Triangle, itbecame extremely difficult for the courts towork in those areas. I learned of a strikingexample of that one day while meeting withthe chief judge of the CCCI. He recessed ourmeeting so that he could speak with a ladywho had arrived in court with her two chil-dren. She was dressed completely in black, ina long black dress with long sleeves called adishdasheh, with a scarf-like cover called ahejab, and was crying profusely as sheexplained what had happened to her hus-band. After the meeting, the chief judgeexplained to me that terrorists had believedthe lady’s husband was supporting the Iraqiinterim government, and decided to makean example of him. The terrorists had, inbroad daylight, killed the lady’s husband,cutting off his limbs, and distributing hisarms and legs throughout the neighborhood

as a warning to others not to work with thenew government. Despite public knowledgeof this, the local police, prosecutor, and courtwere not going forward with this casebecause they had been intimidated by theterrorists. The chief judge explained to methat this is why it is necessary to have aCCCI, a federal court, which is not intimi-dated by the terrorists, and can ensure thatthe rule of law is a reality throughout Iraq.

Too often, all we see of Iraq is what is onthe national news—attacks on civilians,police, and the new Iraqi government. Afterdays and days of such reports, one mightbecome convinced that things are goingbadly. While it is true that Iraq remains adangerous place, on a daily basis hundreds ofIraqi attorneys, judges, and government offi-cials are establishing the rule of law in Iraq.These Iraqi attorneys, who daily risk theirlives, and often work for less than $100.00per month, provide an inspiring example ofgovernment and public service attorneysworking to make the rule of law a reality intheir country. I asked one attorney, who wasfluent in English, why he worked as a gov-ernment attorney in Iraq when he could havemade an incredible amount of money work-ing for an international law firm. Hisresponse was that he wanted to be part of theestablishment of a democratic government inhis country. He knew that he could makeconsiderable money doing other work, butthis was his chance, the chance of his genera-tion, to do something of lasting value for hiscountry. This attorney represents what is hap-pening all over Iraq, as attorneys and govern-ment officials are working diligently at estab-lishing the rule of law in a democratic nation.They hope that one day their descendantswill look back at them the way Americanslook back with reverence at the framers of theConstitution.

This Iraqi attorney, like many other Iraqiattorneys I met, share with attorneys in NorthCarolina a belief that the law is a noble calling,that attorneys serve the people, and that theaim of the law is justice. They see the law asproviding a framework of rules, adaptablethrough the democratic process, that allowpeople freedom while providing them securi-ty and allowing them to achieve their bestselves. That, however, is not to say that thereare no differences. One Iraqi judge, after beingintroduced to a US Attorney from Iowa withan especially distinguished resume, asked,“Your accomplishments are quite impressive;

you are obviously a very important man. Howmany wives do you have?” When the USattorney responded with “one,” the Iraqijudge replied, “That will not do for a man ofyour stature.” Despite cultural differences,Iraqi and American attorneys share an abidingcommitment to the rule of law.

ConclusionToday, Iraqi attorneys are once again

embracing the rich Iraqi legal tradition, turn-ing away from the aberration of the decades ofrepression under Saddam Hussein, to estab-lish democracy and re-establish the rule of lawin Iraq. It was indeed an honor to work withthose talented and service-oriented Iraqi attor-neys and judges who are committed to publicservice and making their country, to quotePresident John Adams, “a government of laws,not men.”8 My assignment in Iraq taught methat attorneys in Iraq share with attorneys inthis country a dedication to the rule of lawand a professional commitment to place serv-ice to their country above personal gain andpersonal safety. My experience in Iraq reaf-firmed that attorneys, whether in the UnitedStates or in Iraq, are indeed part of a noblecalling.

Gill Beck is an assistant United StatesAttorney in the Middle District of NorthCarolina and a colonel in the United StatesArmy Reserve assigned as commander of the12th Legal Support Organization, which pro-vides legal support to Army Reserve units inNorth and South Carolina. The opinions in thisarticle are the author’s and not those of theUnited States Department of Justice or UnitedStates Army.

Endnotes1. Fareed Zakaria, The Future of Freedom p. 13 (W.W.

Norton & Co. New York 2004).

2. Theodore Roosevelt, Annual Message, 1903 in TheSpeaker’s Book of Quotations, ed. Henry O. Dormann(Ballantine Books 2000).

3. See Richard Fallon, “The Rule of Law as a Concept inConstitutional Discourse,” 97 Column. L. Rev. 1, 4(Jan. 1997).

4. Hammurabi’s Code

5. John Keegan, The Iraqi War, p. 52 (Alfred A. Knopf,New York)(2004).

6. Shakespeare, Henry VI, part 2.

7. T.E. Lawrence, The Twenty-Seven Articles of T.E.Lawrence, published in The Arab Bulletin, Aug. 20,1917.

8. The Works of John Adams, ed. Charles Francis Adams,vol 4, p. 106 (1851).

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A pdf file of the 2006 Lawyer’sHandbook is available for down-load on the State Bar’s website(ncstatebar.org) in the MembersAccess section.


The View from the VaultB Y T H O M A S P . D A V I S

I. Essays Published in 2005 Relating toNorth Carolina Law

Recent Legislation

Jim Lore, Dolph Sumner, Hank Patterson,Victor Farah & Leto Copeley, 2005Amendments to the Workers’ CompensationAct, 19 THE COURSE AND THE SCOPE 1(December 2005)

Chris Burti, Electronic Recording/Notary ActAdopted, 26 CAMPBELL LAW OBSERVER 1(October 2005): “North Carolina has adopt-ed its version of the Uniform Real Property

Electronic Recording Act.” The amendmentshave an impact on Chapter 47, but “the mostsignificant changes come in the sections thateffect a major rewrite of Chapter 10B, whichregulates Notaries.” “Sections 1, 2, 10, and 13of this act are effective when they become law(probably August 2005, Ed.). The remainderof the act becomes effective December 1,2005, and applies to notarial acts and applica-tions for notary commissions and recommis-sions made on or after that date.”

Maitri Klinkosum & Brad Bannon,Advocating for Those Left Behind: The Needfor Discovery Reform in Non-capitalPost-conviction Cases, TRIAL BRIEFS 8

(February 2005): “On October 1, 2004, thenew pre-trial discovery laws for felony crimi-nal cases went into effect. By enacting the newdiscovery rules in criminal cases, the NorthCarolina General Assembly recognized theproblems of evidence being withheld in viola-tion of Brady v. Maryland . ...”

Jerry Hartzell, North Carolina Observationson Federal Jurisdiction under the New ClassAction Act, 10 NORTH CAROLINA STATE BAR

JOURNAL 12 (Fall 2005): The author notesthat “the new Act could affect North Carolinamore than most other states: the ‘certifiedquestion’ procedures that the Act’s supportersclaim will allow states’ highest courts to retainan element of control over the meaning oftheir state’s laws is unavailable in NorthCarolina.”

Joan G. Brannon, 2005 Legislation AffectingSmall Claims Actions and OtherNon-Criminal Functions of Magistrates, inADMINISTRATION OF JUSTICE BULLETIN, no.2005/07 (November 2005)

John Rubin, 2005 Legislation AffectingCriminal Law and Procedure,ADMINISTRATION OF JUSTICE BULLETIN no.2005/08 (December 2005): Includes alengthy discussion of the “Blakely bill.”

Janet Mason, 2005 Legislation: Juvenile Law,JUVENILE LAW BULLETIN no. 2005/02(November 2005)

Judge Ripley E. Rand, Highlights andOutline of the New Criminal Discovery Rulesfor North Carolina, 24 THE TRUE BILL 1(March 2005)

Procedure /Evidence

Jessica Smith, Pleas and Plea Negotiations in

The North Carolina Supreme Court Library is open weekdays

from 8:30 a.m. to 4:30 p.m., except on state holidays. See the

Library’s website for its current access policy

(www.aoc.state.nc.us/www/public/html/sc_library.htm).

During the renovation of the Justice Building the Library is located in the old Wachovia

Building, Banking Level, at 227 Fayetteville Street. The following annotated list selects essays

published in 2005 which may be of interest to the profession. These essays appeared in law

reviews, bar association newsletters, legal newspapers, legal bulletins, and this bar journal.

The selections were compiled by North Carolina Supreme Court Librarian Thomas P. Davis.

34 SUMMER 2006

North Carolina Superior Court, in 2005/03ADMINISTRATION OF JUSTICE BULLETIN (July2005): “In 2002-03, a total of 2,887 superiorcourt criminal cases were disposed of by jurytrial. In that same period, 69,649 cases weredisposed of by guilty plea.” “This bulletinsummarizes the constitutional, statutory, andcase law regarding pleas and plea negotiationsin superior court.”

J. Phillip Griffin & Billy Sanders, TheConstitution and Fairness in CriminalSentencing, 10 THE CONSTITUTIONALIST 1(June 2005): “This article traces the history ofthe line of cases culminating in the Bookerdecision and discusses the impact of this andother decisions on North Carolina sentencinglaw and policy.”

Kenneth S. Broun, Scientific Evidence inNorth Carolina after Howerton – APresumption of Admissibility?, 10 N.C. STATE

BAR JOURNAL 8 (Spring 2005): “One of thethings that makes a prediction about thefuture application of the principles set forth inHowerton especially difficult is that a readingof Howerton side-by-side with Daubert showsvery little difference between the fundamentallegal premises upon which the two cases arebased. A fair conclusion is that the Court inHowerton was not rejecting the Daubert opin-ion, but rather the Daubert culture that hasarisen in the federal courts since that case. TheCourt took pains to make sure that the NorthCarolina courts were not bound by federalprecedent in dealing with issues involving sci-entific or technical evidence. The tests may bethe same but trial court judges were warnedagainst applying the rigorous standards foradmissions currently being applied in the fed-eral system.”

William A. Woodruff, The Admissibility ofExpert Testimony in North Carolina afterHowerton: Reconciling the Ruling with theRules of Evidence, 28 CAMPBELL LAW REVIEW

1 (2005): While the Howerton decisionremoved all doubt as to whether NorthCarolina adopted Daubert’s substantive stan-dard, it did not address how the NorthCarolina test for admitting expert testimonyfits within the broader context of the NorthCarolina Rules of Evidence. Howerton alsofailed to explain how substantially identicallanguage in the governing rules and the samecriteria of admissibility, i.e. reliability, couldproduce such a different test. As a result, trial

judges and lawyers are left to apply Howertonto future cases without fully understandingthe substantive and procedural foundation forthe rule. The resulting ad hoc development ofthe law in this vital area will likely breed con-fusion and inconsistent results. This articlewill attempt to reconcile the reasoning inHowerton with the rules of evidence andexplain the procedural and substantive differ-ences between the federal approach underDaubert and the North Carolina test appliedin Howerton. It will also suggest a change tothe procedure courts use to determine admis-sibility of expert testimony that will be moreconsistent with the rules of evidence and theconcerns of the court in Howerton.

Mark Canepa, Making Your Way Throughthe Minefield of Expert Witness Selection inMalpractice Cases in North Carolina, 10 THE

NORTH CAROLINA STATE BAR JOURNAL 6(Winter 2005): The author surveys the casesthat deal with the definition of “same or sim-ilar communities” in malpractice actions pur-suant to N.C. GEN. STAT. sec. 90-21.12. Thissurvey covers Pitts v. Nash Day Hospital, Inc.,605 S.E.2d 154 (N.C. App. 2004); Barham v.J. Hawk MD, et al, 165 N.C. App. 708(2004); Coffman v. Roberson, 153 N.C. App.618 (2002); Smith v. Whitmer, 159 N.C. App.192 (2003); Bak v. Cumberland CountyHospital System, Inc., 165 N.C. App. 904(unpublished); and other cases.

Alan D. Woodlief, An Introduction to theNorth Carolina Pattern Jury Instructions, 10NORTH CAROLINA STATE BAR JOURNAL

(Summer 2005)

Miscellaneous

Joseph J. Kalo, North Carolina OceanfrontProperty and Public Waters and Beaches: TheRights of Littoral Owners in the Twenty-FirstCentury, 83 NORTH CAROLINA LAW REVIEW

1427 (2005)

Gregory L. Shelton, The Economic Loss Rulein North Carolina: Time to Wake the SleepingGiant, 10 NORTH CAROLINA STATE BAR

JOURNAL 27 (Fall 2005): The author arguesthat Land v. Tall House Building Co, 165 N.C.App. 880 (2004) “practically invites NorthCarolina lawyers and courts to exercise the fullpotential of the economic loss rule” and thatwe “should accept the invitation.” As theauthor notes, a federal district court has read

Land much more narrowly in Ellis-DonConst., Inc. v. HKS, Inc., 353 F.Supp.2d 603(M.D.N.C. 2004). In Ellis-Don JudgeBullock writes:

As noted, North Carolina’s economic lossrule bars claims in tort for purely econom-ic losses in the sale of goods covered bycontract law, including the UCC. It doesnot limit tort actions that arise in theabsence of a contract, nor is there any indi-cation that the courts of North Carolinahave expanded the rule beyond its tradi-tional role in products liability cases. ...CRZ cites some broad statements of theeconomic loss rule that proclaim that “theeconomic loss doctrine prohibits recoveryfor economic loss in tort,” Land v. TallHouse Bldg. Co., 602 S.E.2d 1, 4 (N.C.App. 2004), and depends on such broadcharacterizations of the rule to argue thatthe cause of action recognized in Davidsonis no longer valid in North Carolina. Suchstatements are made, however, in casesdeciding issues of products liability inwhich the transaction giving rise to the dis-pute was governed by the law of contracts.Furthermore, all of the cases cited withinsuch cases also address issues of productsliability arising under contracts for the saleof goods. ... That does not mean...that thedoctrine has expanded to preclude allclaims in tort for economic damages in theabsence of a contract, or, more narrowly,outside the products liability context.

Id. at 606-07. Of Judge Bullock’s analysis, Mr.Shelton says that “North Carolina courtsshould ignore this dicta and continue toextend the reach of the economic loss rule.”

Shea Riggsbee Denning, Public SchoolFunding in the Summer of 2005: NorthCarolina School Boards Association v.Moore, in 108 LOCAL GOVERNMENT LAW

BULLETIN (November 2005)

Joseph W. Goodman, Leandro v. State andthe Constitutional Limitation on SchoolSuspensions and Expulsions in NorthCarolina, 83 NORTH CAROLINA LAW REVIEW

1507 (2005)

Seth Warren Whitaker, State RedistrictingLaw: Stephenson v. Bartlett and the JudicialPromotion of Electoral Competition, 91VIRGINIA LAW REVIEW 203 (2005): “InStephenson I, the court reached a completelyunexpected resolution to a lawsuit over the

state’s legislative redistricting plans by fashion-ing a set of judicially created redistricting cri-teria. In Stephenson II, the court provided fur-ther information about just how stringent itintended the criteria devised in Stephenson I tobe and gave a glimpse of the very narrowrange of discretion remaining for the NorthCarolina General Assembly in legislativeredistricting. A careful analysis of the results ofthese two cases suggests that other states maybe able to use their own state constitutions toreform the redistricting process—by creatinglimitations on legislative choices in redistrict-ing that reduce the role of partisan politics—if they are willing to embrace the sort of judi-cial activism that characterizes the Stephensonrulings. To date, no other state has been asaggressive as North Carolina; however, theproblems which appear to have motivated theStephenson court are hardly unique to thatstate.”

Jon Heyl & Allyson Labban, Breach ofContract Claims Under Chapter 75, 15ANTITRUST NEWS 1 (March 2005) & 27NOTES BEARING INTEREST 7 (September2005): “The commercial disputes for whichChapter 75 claims are made include cases ofbreach of contract. These breach of contractcases test the scope of Chapter 75, requiringthe courts to answer the question of when abreach of contract is ‘unfair and deceptive’conduct.” “This article reviews the history ofChapter 75 and pertinent state and federalcases in an effort to divine general guidelinesthat practitioners may use when evaluating abreach of contract claim under chapter 75.”

Mary Wright, A Comparative Analysis ofSelected North Carolina ContractualProvisions, 27 NORTH CAROLINA CENTRAL

LAW JOURNAL 23 (2004): “This article willexamine selected North Carolina contractualdoctrines and statutory provisions in relationto their relevant counterparts in other juris-dictions. Particular emphasis will be placed onthose doctrinal and statutory applications thatdepart from the majority or prevailing view.Additionally, the article will focus on the sig-nificance of developments in the law in areaswhere the status of a particular doctrine isuncertain as a result of conflicting case lawand interpretation.”

Diane M. Juffras, Independent Contractor orEmployee? The Legal Distinction and itsConsequences, 32 PUBLIC EMPLOYMENT LAW

1 (May 2005)

Michael Schadewald, State Courts Continueto Grapple with the Geoffrey Issue, 24JOURNAL OF STATE TAXATION 19 (Summer2005): This discussion of Geoffrey and relatedstate court decisions summarizes and quotesfrom A&F Trademark Inc. v. Tolson, 167 N.C.App. 150 (2004).

Jurisprudence

Logan Sawyer III, Constitutional Theory inPractice: Originalism in Brown v. Board ofEducation, 11 THE CONSTITUTIONALIST 1(September 2005): This “brief examinationof the landmark case, Brown v. Board ofEducation, and the academic debate over awell-known constitutional theory, original-ism, shows how constitutional theory canoffer practical tools to practicing lawyers.”

J. Michael McGuinness, The Rising Tide ofNorth Carolina Constitutional Protection inthe New Millennium, 27 CAMPBELL LAW

REVIEW 223 (2005)

Court Administration/History/Trends

Laura Langer & Teena Wilhelm, TheIdeology of State Supreme Court ChiefJustices, 89 JUDICATURE 78(September-October 2005): With a score of0 as most ideologically conservative and ascore of 100 as most liberal, Chief Justice Lakehas achieved a score of 49.81, according tothese authors. Not only do the authors thinkthey can measure empirically the ideology ofthe 50 chief justices, they are bold enough toextend the gloss to associate judges of the var-ious supreme courts. Comparing the Chiefsto their brethren, the authors say:

Another observation from these data isthat variation exists in the degree of simi-larity between chief justice ideology andthe average ideology of all justices on thestate supreme court. . . . North Carolina,Tennessee, California, Iowa, and NewMexico have chief justices on the court in2005 who are almost indistinguishablefrom the average associate justice.

Katherine White, Deliberate N.C. SupremeCourt Accelerates Pace on Matters of Taxationand Education, 21 NORTH CAROLINA

INSIGHT 90 (March 2005): “In its first 175years of existence (1819-1994), the North

Carolina Supreme Court moved slowly in itslegal interpretations, not making wholesalechanges as other states’ courts had, and takingfew steps that altered the way business isdone.” “What a difference a decade makes. Inthe last 10 years, the Supreme Court hasreversed a 100-year string of its own cases, hasrevamped how the state’s public schools oper-ate, and has ordered the refund of taxes to tensof thousands of citizens.” “It is not unusual forstate courts to decide matters of public poli-cy.” “What is unusual is the breadth of recentdecisions and their impact on citizens andindustry.” “Beyond the legal arguments, theconstitutional issues with which the Court haswrestled have affected areas usually addressedby the executive branch and the GeneralAssembly—taxes and education. This incur-sion into areas traditionally left to the twoother branches of government is not an ordi-nary occurrence.”

Paul C. Ridgeway, Practice Before the NorthCarolina Business Court, TRIAL BRIEFS 5(October 2005): Mr. Ridgeway outlines thehistory of this specialized court, and notes itsrecent expansion to Mecklenburg Countyunder Special Superior Court Judge AlbertDiaz, and possible expansion to Wake Countyunder Special Superior Court Judge JohnJolly.

Danny G. Moody, ed., Society News:Newsletter of the North Carolina SupremeCourt Historical Society (Fall 2005): Thisnew publication includes a message for theSociety President, Franklin Freeman; anannouncement of the planned presentation ofthe Ruffin Jr. portrait; a description of thepresentation of the Taylor portrait; a featureabout the Supreme Court holding court inthe Chowan County Courthouse; a storyabout the renovation of the Justice Building...and more.

II. Essays Published in 2005 of GeneralInterest

Judicial Process

Judge Richard M. Markus, A BetterStandard for Reviewing Discretion, 2004UTAH LAW REVIEW 1279: According to thisformer chief judge of the Ohio Court ofAppeals, “Too often, appellate court standardsof review for discretionary decisions simplyreport the appellate panel’s personal chagrin


with the trial court’s action, its indifference tothe trial court’s resolution of the issue, or itsunwillingness to do anything about it. As aresult, they give little direction to the trialjudge who seeks to exercise discretion proper-ly, or to the next appellate panel that tries toreview it rationally. This article suggestsanother approach, which may facilitate effortsby both trial and appellate courts to accom-plish their respective duties consistently andreliably.” The judge suggests that, “Beforeaccording deference to a trial court’s discre-tion, the appellate court should confirm that:(1) the governing principle authorizes discre-tion for that type of decision, instead of a con-sistently applied rule of law; the underlyingfacts on which the trial court relied authorizedit to make a choice; (2) the court’s choice fellwithin an acceptable range; (3) the court didnot consider improper facts in determining itsability to choose or in making its choice; (4)the court did not refuse to consider properfactors in determining its ability to choose orin making that choice; and (5) the court didnot weigh those factors irrationally in deter-mining its ability to cho[o]se or to make thatchoice.”

G. Edward White, Historicizing JudicialScrutiny, 57 SOUTH CAROLINA LAW REVIEW

(2005): “[T]here has been very little discus-sion among commentators—and most of thatattenuated—about how or why the Court’sscrutiny levels jurisprudence emerged. ....[T]here have been few efforts to analyze thescrutiny levels practice as a historical phenom-enon. This seems all the more striking becausefor a time span of 150 years, in which theCourt rendered numerous decisions review-ing the acts of legislatures on constitutionalgrounds, it made a quite different set of scruti-ny level choices from the sets it has employedsince the 1930s.”

Honorable Jon O. Newman, DecretalLanguage: Last Words of an AppellateOpinion, 70 BROOKLYN LAW REVIEW 727(2005): The judge describes the practice inthe Second Circuit in using decretal language(that part of the appellate opinion that stateswhat a court of appeals is ordering).

Paul E. McGreal, A Constitutional Defense ofLegislative History, 13 WILLIAM & MARY

BILL OF RIGHTS JOURNAL 1241 (April 2005):“On its own terms, rejecting legislative histo-ry, without saying more, makes little sense.

Text cannot be understood absent a context.Rejecting legislative history simply eliminatesone possible interpretive context, withoutidentifying some other context to fill theinterpretive void. Thus, the textualist accountis incomplete.” “Rejecting legislative historyalso fails the test of consistency with constitu-tional government. While Justice Scalia offersbicameralism and presentment as the consti-tutional measuring stick, he follows his logiconly half way—he accepts the text producedby that process, but not the context. This sep-aration of text and context cannot be justified.Because legislative history reflects the contextof bicameralism and presentment, it providesthe constitutionally preferred context fordetermining statutory meaning.”

Michael Abramoqicz & Maxwell Stearns,Defining Dicta, 57 STANFORD LAW REVIEW

953 (2005): “After critiquing the most influ-ential definitions of holding and dicta, weoffer and defend our own: A holding consistsof those propositions along the chosen deci-sional path or paths of reasoning that are actu-ally decided, are based upon the facts of thecase, and lead to the judgment. A propositionin a case that is not holding is dicta.” Theauthors identify the article, Michael C. Dorf,Dicta and Article III, 142 UNIVERSITY OF

PENNSYLVANIA LAW REVIEW 1997 (1994), as“the only major law review article in the past50 years exclusively focused on offering abroad theoretical treatment of the distinctionbetween holding and dicta.”

Thomas Healy, The Rise of UnnecessaryConstitutional Rulings, 83 NORTH CAROLINA

LAW REVIEW 847 (2005): “The article beginsby arguing that the rise of unnecessary [feder-al] constitutional rulings is both part of a larg-er trend toward judicial supremacy and theresult of pressures specific to each of the areasin which the Court has authorized such rul-ings. It then considers whether the Court’sembrace of unnecessary constitutional rulings...can be squared with Article III’s ban onadvisory opinions...”

Randy E. Barnett, The Original Meaning ofthe Judicial Power, 12 SUPREME COURT

ECONOMIC REVIEW 115 (2004): The articlepresents an originalist defense of the institu-tion of judicial review. “With this approach tooriginalist interpretation (and its limits) inmind, the overwhelming majority of courtsand scholars are correct, I submit, to accept

the historical legitimacy of judicial review.Judicial nullification of unconstitutional lawsin not only consistent with the frame provid-ed by original meaning, it is expressly author-ized by the text and is entirely justified onoriginalist grounds.”

Eugene Kontorovich, Disrespecting the‘Opinions of Mankind’: International Law inConstitutional Interpretation, 8 GREEN BAG

2D 265 (Spring 2005): “The invocation of‘decent respect’ to suggest that Americancourts should defer to or even consider foreignviews is in effect a misquotation. Its forcedepends entirely on lifting the words fromtheir context—on ignoring the second half ofthe clause from which the words are taken.The Declaration [of Independence] in no waysuggests that ‘decent respect to the opinions ofmankind’ requires following those opinions.Rather, all that decent respect ‘requires’ of usis that we explain our actions to the world—that the colonists ‘declare the causes whichimpel them to the separation.’ ... Thus,‘decent respect’ is not about importing foreignopinion but rather about exporting our viewsto an interested foreign audience, in the formof a Declaration.”

SYMPOSIUM: TO WHAT EXTENT SHOULD

THE INTERPRETATION AND APPLICATION OF

PROVISIONS OF THE U.S. CONSTITUTION BE

INFORMED BY RULINGS OF FOREIGN AND

INTERNATIONAL TRIBUNALS, 26 UNIVERSITY

OF HAWAII LAW REVIEW (Summer 2004)

SYMPOSIUM: DUAL ENFORCEMENT OF

CONSTITUTIONAL NORMS, 46 WILLIAM AND

MARY LAW REVIEW (February 2005): Thisissue includes remarks by Chief JusticeRehnquist, and such articles as James A.Gardner, Whose Constitution Is It? WhyFederalism and Constitutional Positivism Don’tMix, and Robert F. Williams, State CourtsAdopting Federal Constitutional Doctrine:Case-by-Case Adoptionism or ProspectiveLockstepping? Beyond its theoretical interest,this SYMPOSIUM is of some note because itcites decisions of the North Carolina SupremeCourt. In Williams’ article, for example, foot-note 81 cites State v. Spivey, 579 S.E.2d 251,254 (N.C. 2003), and footnote 143 quotesState v. Jackson, 503 S.E.2d 101, 103 (N.C.1998).

PANEL DISCUSSION: CITATION OF

UNPUBLISHED OPINIONS: THE APPELLATE

36 SUMMER 2006

JUDGES SPEAK, 74 FORDHAM LAW REVIEW 1(2005)

Criminal Procedure

Benjamin E. Rosenberg, The Analysis ofDefective Indictments After United States v.Cotton, 41 CRIMINAL LAW BULLETIN 463(September-October 2005): “Courts’ stronginclinations to find defects in indictmentsharmless so long as the defendants had noticeof the crimes with which they were chargedhas led to a decline in the significance ofindictments, and an evisceration of the grandjury’s role as a body that stands between theprosecutor and the defendant; among thepeople most strongly affected by the declineare those who are acquitted at trial, for suchpeople suffer a significant harm by virtue ofthe defective indictment, and yet have noremedy ...”

Katharine A. Ferguson, The Clash of Ring v.Arizona and Teague v. Lane: An Illustrationof the Inapplicability of Modern HabeasRetroactivity Jurisprudence in the CapitalSentencing Context, 85 BOSTON UNIVERSITY

LAW REVIEW 1017 (2005)

Allen D. Boyer, The Trial of Sir WalterRalegh: The Law of Treason, The Trial ofTreason, and the Origins of the ConfrontationClause, 74 MISSISSIPPI LAW JOURNAL 869(2005): “Very recently, in Crawford v.Washington, the United States Supreme Courtdemonstrated that Sir Walter Ralegh’s Case isnot merely a bleak episode of legal history, butrather that it remains a vital legal precedent,one from which a redeeming lesson may bedrawn.” The author presents newly discoveredmaterials “which allow us to understand theprosecution’s argument.”

Judicial Conduct

Amanda Frost, Keeping Up Appearances: AProcess-Oriented Approach to JudicialRecusal, 53 THE UNIVERSITY OF KANSAS LAW

REVIEW 531 (2005): This article “describeshow judicial disqualification operates in a pro-cedural vacuum that has prevented the dis-qualification laws from protecting judicialintegrity.” “[T]he absence of the traditionaladjudicatory procedures in recusal law under-mines the reputation of the judiciary.” Theauthor then “suggests reforms that wouldincorporate the traditional forms of adjudica-

tion into the recusal process.”

SYMPOSIUM: RECUSAL ON APPEAL, 7 THE

JOURNAL OF APPELLATE PRACTICE AND

PROCESS (Spring 2005): This issue includesM. Margaret McKeown, Don’t Shoot theCanons: Maintaining the Appearance ofPropriety Standard; Howard J. Bashman,Recusal on Appeal: An Appellate Advocate’sPerspective; and Ryan Black & Lee Epstein,Recusals and the “Problem” of an EquallyDivided Supreme Court.

Eileen C. Gallagher, The ABA Revisits theModel Code of Judicial Conduct: A ProgressReport, 44 THE JUDGES’ JOURNAL 7 (Winter2005): “Perhaps the most significant changein the revision is the decision to restructurethe canons into rules.” “The rules-based for-mat gives guidance on which actions areenforceable—and thus would subject thejudge to discipline if violated—and which arenot. In general, the commission has chosen tomove hortatory language to the commentarysections. This change illustrates a broaderdebate on the appropriate role of judicial con-duct codes in general. Some commentatorslook to codes to provide a set of enforceablerules for disciplinary purposes. Others believethat judicial codes of ethics should containaspirational principles as well as enforceablerules.”

SYMPOSIUM, JUDICIAL PROFESSIONALISM IN A

NEW ERA OF JUDICIAL SELECTION, 56MERCER LAW REVIEW (2005)

Miscellaneous

Adriaan Lanni, ‘Verdict Most Just’: The Modesof Classical Athenian Justice, 16 YALE

JOURNAL OF LAW & THE HUMANITIES 277(2004): “In my view, the Athenian legal sys-tem was more complex than is generallythought. The Athenians made a consciousdecision to reject the rule of law in most cases,and they did so because they thought givingjuries unlimited discretion to reach verdictsbased on the particular circumstances of eachcase was the most just way to resolve disputes.But in other cases, such as commercial suits,where the practical importance of more pre-dictable results was high, the Athenians didhave rules of admissibility and relevance thatlimited jury discretion. The Athenian legalsystem struck a balance between followingrules and doing justice that is altogether dif-

ferent from that which may be seen in thepages, for example, of the Federal Reporter.Classical Athens thus provides a valuable casestudy of a legal system that favored equity anddiscretion over the strict application of gener-alized rules. But it managed to do so in a waythat did not destroy predictability and legalcertainty in the parts of the system where theywere necessary.”

Jack Penchoff, Compacts Are Contracts, 48Statenews 22 (August 2005): “The purposesof [state] compacts have evolved since 1783 asthe governing of states has grown more com-plex. Between 1783 and 1920, only 36 com-pacts were enacted, and most of those settledboundary disputes. Over the past 85 years,however, states have enacted more than 160compacts.”

Teresa L. Conaway, Carol L. Mutz & JoannM. Ross, Survey: Jury Nullification: ASelective, Annotated Bibliography, 39VALPARAISO UNIVERSITY LAW REVIEW 393(2004)


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Candler, NCStephen Brian Walker

Greensboro, NCAdam Paul Wallace

Durham, NCJaime Marie Wallace

Lansing, MIJason Thomas Waller

Chapel Hill, NCWesley Brian Waller

South Miami, FLReyna Simone Walters

Washington, DCDanielle M. Walther

Winston-Salem, NCCandace Tanelle Walton

Charlotte, NCDamian John Ward

Buies Creek, NCDanielle Marie Ward

Holly Springs, NCLatia Linda Ward

High Point, NCSara Batten Warf

Apex, NCDanielle E. Wasserman

Chapel Hill, NCKehinde Abena Watford

Durham, NCShan-Tika Ty-East Watkins

Durham, NCBradley D. Watson

Fairborn, OH

Ryan Michael Watson Tallahassee, FL

Lena Watts-Robinson Gastonia, NC

Myra Kathryn Price Weare Raleigh, NC

Joel Ray Weaver Palm Harbor, FL

Monica Eileen Webb Durham, NC

Robert Michael Weddington Grundy, VA

Clare Marie Bobbitt Weddle Durham, NC

David Charles Weiss Carrboro, NC

Aaron Bader Wellman Carrboro, NC

Jennifer Elizabeth Wells Raleigh, NC

Brian Richard Weyhrich Carrboro, NC

Anna Elisabeth Wheeler Lillington, NC

Cybil Janine White Chapel Hill, NC

James Arthur White Huntersville, NC

W. Bryan White Taylorsville, NC

William Durham White Chapel Hill, NC

Joshua D. Whitlock

Williamsburg, VAWilliam J. Wickward

Durham, NCJeffrey Bruce Widdison

Durham, NCGordon Jules Wikle

Durham, NCAlton R. Williams

Raleigh, NCAndrea Lee Davis Williams

Forest City, NCApril D. Williams

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Winston-Salem, NCJeremy Christopher Williams

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Ferndale, MILindsay Elizabeth Willis

Bethlehem, GA

Jennifer York Wilson Greensboro, NC

Jonathan James Wilson Columbia, SC

Marcus Minter Wilson Chapel Hill, NC

Megan Jane Wilson Knoxville, TN

Cami Marie Winarchick Winston-Salem, NC

William Chad Winebarger Knoxville, TN

Nickole C. Winnett Durham, NC

Anna Tycin Wood Durham, NC

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Tommie Renae Wright-Kearney Durham, NC

Chad Erik Wunsch Chapel Hill, NC

Chandra E. Wymer Carle Place, NY

Tiffany Anise Yancey Durham, NC

Tracy Y. Yanger Charlotte, NC

Scott Manning Yarbrough Charlotte, NC

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St. Louis, MOStephen Michael Yoost

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Mantua, OHPeter D. Zellmer

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TThhee MMaannyy HHaattss ((ccoonntt..))

societal pressures, or selfish concern.These are not easy to accomplish—but


Within Our Constitutional System ofGovernment

District court judges must:Decide when the police powers of thestate have overflowed their bounds;Decide what the legislature meant whenthey inartfully drafted a new law;Decide what the appellate courts reallymeant when they said what they said;Decide what our constitutional rightsmean in the day-to-day world in whichwe live.(Nearly as many fundamental constitu-

tional rights come into consideration in aone-hour DWI trial as do in a two-weekmurder trial. The district court judge mustdecide these issues in minutes, alone, oftenwithout briefs, AND often must do so sever-al times a day, for several days a week.)

These are not easy decisions to make—but they are only a part of the job.

Within Our SocietyDistrict court judges:Are looked to as leaders, as experts, as

exemplary citizens;Are expected to serve on boards and com-mittees;Share their knowledge and experiencewith others to develop meaningful pro-grams and policies in areas tangential tothe courts;Inspire obedience and respect for the law;Improvise, theorize, and legitimize theadministration of the criminal justice,juvenile justice, and civil justice systems;Learn the law, teach the law, understandthe law, and apply the law;All the while Maintaining their families, being spouses,parents, and children, Enjoying recreational pursuits,Maintaining health, andNurturing relationships with family,friends, and God.These are not easy matters—but they are

only a part of the job.All of these things are part of the job of

being a district court judge. A judge must beable to do all of these jobs and be willing toshift between them at any time. AND theymust be done with patience, courtesy, legiti-mate analysis, understanding, intuitiveness,empathy, application of life’s experience,common sense, compassion, flexibility, deci-siveness, and, sometimes, courage. They

must be done alone, without rancor,vengeance, prejudice, or fear; without bias,sympathy, or fear of public clamor.

To find the best person to perform the jobof district court judge, who is better able toconsider all of these various parts of the joband person? Is it some appointing authorityor the general voter at the polls?

To decide whether a particular districtcourt judge should retain his office, who isbetter able to consider all of these variousparts of the job and the person? Is it someindependent agency report on performanceand characteristics in a voter guide, or a com-petitor’s letters to the editor, and editorialsand advertisements in the newspapers?

To attract the best person to the job of dis-trict court judge, do we want the job soughtby young lawyers to improve their visibilityor standard of living, or by experiencedlawyers who relish the challenge? Do wecount on the apparent prestige of the posi-tion, or should we pay a reasonable salary?

These are issues in which the Bar has avital interest. Both as individual voters and asa body, lawyers should make their feelingsknown to their legislators. If not lawyers, whowill?

Joseph Turner is the chief district court judgefor the 18th Judicial District.

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