The Legal Profession (Davies) 2016 (spring) syllabus 2015-12-14

The Legal Profession: History and Practice (192-001) — Spring 2016 (3 credits) Professor Ross E. Davies

Textbook (version: Apr. 16, 2016)

These are the articles, book excerpts, and other worthwhile works — some reproduced here, some with a citation or URL or other source so you can look them up yourself — that you should: (a) read; (b) think about, and at least sometimes do research about, before class; and (c) talk about, and listen to your guests and peers talk about, in class. They are also the materials on which you will take a quiz at the beginning of class. Watch your school email account or www.rossdavies.org for updates.

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current syllabus .............................................................................................................................................. 3 January 13: Business Etiquette

Imperfection and Correction ..................................................................................................................... 5 Guide for Counsel in Cases to Be Argued Before the Supreme Court of the United States (2014) (excerpts) ..................... 7 The Know-It-Alls .................................................................................................................................. 11 U.S. v. Locke, 471 U.S. 84 (1985) (excerpts) ............................................................................................... 13 Snippets ............................................................................................................................................. 33

January 20: Networking Ross E. Davies, Breakfast with the Justices: Networking in the Nineteenth Century (excerpt) ..................................... 35 Alex Kozinski, So You Want To Become a Federal Judge by 35? ................................................................. see URL URL: alex.kozinski.com/articles/So_You_Want_to_become_Federal_Judge.pdf Ronald K.L. Collins, Kozinski Revisited — 10 ways to become a Federal Judge by 35 . . . and more! ................... see URL URL: concurringopinions.com/archives/2015/07/kozinski-revisited-10-ways-to-become-a- federal-judge-by-35-and-more.html Snippets ............................................................................................................................................. 49

February 3: Business Communications Beth Labson Freeman, Standing Order re Civil Cases (Oct. 21, 2015) (challenge: can you find it on the web?) ................ 51 The Kozlowski Emails (boxed excerpts) ...................................................................................................... 59 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §9.3(f)(5) (5th ed. 2012) .............. Westlaw John Horgan, Bayes’s Theorem: What’s the Big Deal?, Scientific American, Jan. 4, 2016 .................................. see URL URL: blogs.scientificamerican.com/cross-check/bayes-s-theorem-what-s-the-big-deal/? Snippets ............................................................................................................................................. 72

February 10: Law Firm Economics David F. Pike, Low-Key Supreme Court Litigator Wins High-Profile Case, L.A. Daily Journal, Feb. 27, 2003 ........ see URL www.robbinsrussell.com/sites/default/files/Englert-LADJ.pdf Louisiana v. Mississippi, 466 U.S. 921 (1984) ............................................................................................... 75 National Law Journal et al., 2012 Survey of Law Firm Economics: Executive Summary ............................................ 78 Snippets ............................................................................................................................................. 91

February 17: Client or Business Development email from XXXXXXXXXXXXXXXXXX to Gregory F. Jacob (Sunday, Dec. 13, 2015) .......................................... 93 O’Melveny & Myers LLP, Proposal to Represent (Dec. 21, 2015) ...................................................................... 95 email from Gregory F. Jacob to Christopher Hunt (Dec. 21, 2015) ................................................................... 103 Milton I. Shadur, Memorandum Order, In re: Stericycle, Inc., No. 13 C 5795, MDL No. 2455 (Oct. 11, 2013) ........... 105 Transcript of Proceedings before the Hon. Judge Rubén Castillo, In re: Schmeltz, No. 15 MC 583 (Nov. 24, 2015) ....... 114

February 24: Working with Paralegals and Support Staff Pigford v. Johanns, 421 F.Supp.2d 130 (D.D.C. 2006); People v. Zherka, 25 Misc.3d 1210(A)

(City Court, Mount Vernon, N.Y. 2009); Stockett v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992) (excerpts of all three cases, with footnotes omitted and formatting modified) .................................................. 126 PLEASE NOTE: Do NOT waste your time reading the full opinions. I guarantee you there is nothing to be gained from reading more about these cases, at least for this course. And besides, some of the other parts are even more unpleasant than what appears here.

George R. Milburn, A Word of Advice to Young Lawyers, 12 Yale L.J. 484 (1903) ............................................... 136 Jamie Lavergne Bryan, Working effectively with the legal support staff, Nat’l L.J., Sept. 1, 2003 ............................ Lexis Snippets ........................................................................................................................................... 139

March 2: Getting and Giving Feedback Sheila Heen & Douglas Stone, Finding the Coaching in Criticism, 92 Harvard Business Review 108 (Jan./Feb. 2014)

You can find a pdf of the article by using the E-Journal Finder on the Law Library’s homepage. Enter Harvard Business Review into the E-Journal Finder, then browse for and access the article through the Business Source Complete database. ..................................................................... GMUSL website

EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. 2002) ............................................. Westlaw or Lexis J.W. Schuckers, The Life and Public Services of Salmon Portland Chase (1874) (excerpt) ........................................ 141 Snippets (none this time — the reading is already on the long side)

March 16: Project or Work Management Alan Cohen, The Eureka Moment: How six Big Law firms stopped dithering and learned to love

legal project management, 19 Law Technology News 34 (Aug. 1, 2012) ...................................................... Lexis Joshua Poje, Simple project management tools for your practice, Your ABA (Apr. 2013) .................................. see URL

www.americanbar.org/content/newsletter/publications/youraba/201304article12.html Environment and Natural Resources Division (USDOJ), Case Management System ............................................... 141 Executive Office for U.S. Trustees (USDOJ), Automated Case Management System .............................................. 143 Privacy Impact Assessment for the OPLA Case Management System (June 26, 2013) (excerpt) ................................. 145 Gregory v. Belfor USA Group, Inc., Rule 16(b) Scheduling Order (E.D. Va. Mar. 12, 2012) ................................... 150 In re Vettori, 217 B.R. 242 (1998) .......................................................................................................... 154 Snippets ........................................................................................................................................... 159

March 23: Business Fundamentals for Lawyers Richard Loth, Understanding the Income Statement (Feb. 24, 2016) ........................................................... see URL

www.investopedia.com/articles/04/022504.asp Profit and Loss Statement (P&L) ....................................................................................................... see URL

www.investopedia.com/terms/p/plstatement.asp Office of the Clerk (Virginia State Corporation Commission), Entity Types and Categories ................................ see URL

www.scc.virginia.gov/clk/busdef.aspx Articles of Organization for a Professional Limited Liability Company (Form LLC-1103), available via a link at ....... see URL

www.scc.virginia.gov/clk/formsum.aspx Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749 (2014) ........................ you know where to find this!

March 30: Professional Presence and Branding Daniel Goleman, What Makes a Leader?, Harvard Business Review (Jan. 2004) ......................................... see instructions

available by browsing the Harvard Business Review via the “e-Journal Finder” on our library’s “Find Books, Articles, & Databases” page on our law school’s website

Bill George et al., Discovering Your Authentic Leadership, Harvard Business Review (Feb. 2007) ...................... see instructions available by browsing the Harvard Business Review via the “e-Journal Finder” on our library’s “Find Books, Articles, & Databases” page on our law school’s website

PriceWaterhouseCoopers, Personal Brand Week: Your name is just the start (2010) ............................................... see URL www.pace.edu/career-services/sites/pace.edu.career-services/files/PDF/PersonalBranding-ebook.pdf (you are not required to fill-in the blanks, but feel free to do so if you like)

April 6: Public Speaking Dan Currell, Speaking Well (Corporate Executive Board 2010) ....................................................................... 161 Dan Currell, Principles for Managing Data Presentations (Corporate Executive Board 2006) .................................... 164 Dan Currell, A Brief Guide to Brief Presentations (Corporate Executive Board 2011) ............................................. 168 Dan Currell, Pre-Presentation Checklist (Corporate Executive Board n.d.) ......................................................... 169 Dan Currell, Sample Script (Corporate Executive Board 2012) ........................................................................ 170

April 13: Negotiation James J. White, The Pros and Cons of “Getting to YES,” 34 J. Legal Education 115 (1984) ............................ HeinOnline

including Comment by Roger Fisher, 34 J. Legal Education 120 (1984) Missouri v. Frye, 132 S.Ct. 1399 (2012) .................................................................... you know where to find this! Christy Susman and David Gooder, Letter to Patrick Wensink (July 12, 2012) ..................................................... 175

April 20: Communication and Listening Skills Official oral argument transcript, p. 41-53 (U.S. Aid Funds v. Espinosa, 559 U.S. 260 (2010)) ....... www.supremecourt.gov U.S. v. Casper, 34 F.Supp.3d 617, 620-26 (E.D. Va. 2014) ...................................................................... Westlaw 4A West’s Tex. Forms, Business Litigation § 21.3.6 (2d ed.) (“Letter to client regarding notice of deposition”) ....... Westlaw April 15, 2015 “Legal Profession” class session ........................................................................... law school website

The Legal Profession: History and Practice (192-001) — Spring 2016 (3 credits) Professor Ross E. Davies ([email protected]; 202-550-0000).

Classes: 9:00-11:40 a.m., Wed., in Room TBA. Office hours open to all, immediately after class, in the classroom.

Sketch and purpose of the course: This is a market-driven law school course. It is based on annual and ongoing input from (a) employers about what they want today’s law students and graduates to know more about and do more effectively, and (b) current students (this year at meetings on Nov. 4 and 5) about which of those topics they are most interested in working on. Basically, GMUSL career advisers compiled the employer input into a long list in the form of a ballot, and then students at the November meetings used copies of the ballot to vote for their preferred topics. The 14 topics for this semester (the top ten from the student vote, plus three selected by the GMUSL career services staff and one TBA by the instructor) are:

Jan. 13: Business Etiquette Jan. 20: Networking Feb. 3: Business Communications Feb. 10: Law Firm Economics Feb. 17: Client or Business Development Feb. 24: Working with Paralegals and Support Staff Mar. 2: Getting and Giving Feedback

Mar. 16: Project or Work Management Mar. 23: Business Fundamentals for Lawyers Mar. 30: Professional Presence and Branding Apr. 6: Public Speaking Apr. 13: Negotiating Apr. 15 (10am-12:40pm): TBA Apr. 20: Communication and Listening Skills

This course approaches those topics from a variety of perspectives — regulatory, historical, technical, practical — using a variety of resources, including conventional reading assignments, guest presenters, and exercises. Each of our 14 Wednesday morning class sessions will focus on one of the 14 topics listed above (dates and sequence subject to change).

Texts: The readings (available starting Dec. 14 at www.rossdavies.org) for each class session are about 20 pages long (give or take a few) and should be: (a) enough to draw you into the subject of the day; (b) not too much for you to read thoroughly and with care (see “Class sessions” below); and (c) enough to provide you with plenty of leads for a little bit of interesting research and writing (see “Research and Papers” below). Feel free to print out the readings or put them on an electronic gadget. Either way, bring them to class, along with your notes and research. Failure to bring your current reading, notes, and research to class will affect your grade. It is important that all of us have hands-on access to our work during class. Class sessions: Each session will begin at 9:00 a.m. sharp with 10 minutes for a short multiple-choice quiz (8 or 10 questions). The quizzes are designed simply to determine whether you have, in fact, done the reading, paid attention, and thought about it. For someone who has done the reading the quizzes are nothing to fear, but for someone who has not done the reading they will be, well, painful. We will spend about 30 minutes talking about the reading, using quiz questions as starting points, with the instructor doing most but not all of the talking. Then for about 30 minutes our guest presenter(s) (all reputable experts in their respective fields) will comment on and field questions about the top-ic of the day. Then we will take a 10-minute break. The rest of the class session will be devoted to more discussion of the topic of the day, including the reading and your research.

Research and Papers: Please do the assigned reading and come to class prepared to be quizzed on it and to discuss it. The research: In addition, beginning with the second week of class, you should do no more than 30 minutes of outside research testing the quality of the readings and come to class prepared to share the results of your work. So, as you read, note points where you are confused or skeptical. (The question all good lawyers are constantly asking, as they read and watch and listen, is: “Oh really?”) Then follow up — do some research to satisfy one specific, substan-tive, constructive, concern directly related to the law or legal practice as dealt with in the readings. (Thus, for exam-ple, if the readings on “Client or Business Development” contain a derisive reference to a “Mickey Mouse operation” that is not a reason to do research about the Disney character, but if the readings on “Professional Presence and Branding” contain a reference to “Mickey Mouse copyright” that is a reason to do research about copyright law relat-ing to the Disney character.) The papers: During the first class session, the students will be divided into two groups. The members of the two groups will take turns (one week on, one week off) writing up their researches in Word documents and emailing them to the entire class (including the instructor). Please do not overdo it — you need not come up with anything big or groundbreaking, and you should not write more than 200 words. Short, well-written, interesting additions — clever or dull, exotic or mundane — that will help all of us understand what we’re reading is

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what we need. This part of the coursework is as much about developing habits (reading with an eye for things that ought to be looked into further, and then doing the looking) and techniques (searching, sorting, analyzing, and ex-plaining, and then writing) as it is about substance. Do not underdo it either. You do need to be prepared to talk based on what you did or did not find, and it does need to be relevant and law-related, though it is unlikely you will be called upon to do so in every class session. Think about it this way: Our classes will be meetings of professionals where you share your expertise and research, not a book club where you share your reactions and casual thoughts. Deadlines: First, your paper topic must be unique — no echoing, amplifying, duplicating, or piggybacking on a classmate’s — which makes reading and commenting promptly a good idea (and also makes it pretty important for you to read your classmates’ little papers as they appear in your email!). Second, your paper must be received by the entire class (including the instructor) no later than 12 noon on the Monday before the readings will be discussed. You are responsible for making sure it arrives on time. I will send a confirming reply email as soon as I receive it. If you do not receive a reply from me by the deadline, call my cell phone (202-550-0000) at 12 noon, dictate the entire paper into my voicemail, and then by 8:00 p.m. that day deliver hard copies to my mailbox and all your classmates’ mail-boxes at the law school. (The idea here, obviously, is to provide a backstop if you and I have email problems, and to deter the internet from eating your homework.)

For each class session, please: (a) Read, take notes, research, and think about the assigned material. Stay an assignment or two ahead of schedule, just in case. (b) Note and follow in-class instruction. If you miss a class you must get notes from a classmate. Make arrangements in advance as a precaution against unanticipated absences. There is a strong tradition in law of sharing notes with colleagues in need. Be a part of it. (c) Look up words you do not know. Use a good dictionary or two. Words that are interesting or important are good quiz candidates.

Grades: You may choose (no later than the end of the drop/add period) to be graded for the course on either the 4.33-point scale or credit/no credit (CR/NC). The default 4.33-point scale will apply if you do not report your choice to the Records Office by the end of the drop/add period. Either way, the grade is based on closed-book quiz-zes and participation. Quizzes count for 1/2 of the grade. There are no make-ups: miss a class in which a quiz is ad-ministered, miss that quiz. Taking all the quizzes is good because for students who take all quizzes the lowest score is excluded from final grade calculations. Participation counts for 1/2 of the grade. Let’s be clear about this up front: The evaluation of participation is subjective, which means that if you do not like your participation grade there will be no basis for challenging it. Having said that, you are unlikely to get a bad participation grade if you write good papers, come to class prepared to make useful contributions and do in fact make them, and respectfully listen to and com-ment on the contributions of others. The papers are not graded separately. They are included in class participation. You are responsible for attending the number of class sessions required by our school’s regulations (they are available on the school website, and you are responsible for knowing and following them) to be eligible for course credit.

Learning Outcomes: This course will expose students to and give them the opportunity to refine the professional skills the market seeks in today’s law students. Students will demonstrate increased awareness of and proficiency in professional skills demanded in today’s market by: (1) completing weekly quizzes; (2) writing, researching, and speaking about professionalism topics; and (3) actively listening to lectures and guest speakers.

Other Outcomes: You will learn some inspiring and entertaining things about people who are admirably good law-yers, and you will have some fun.

Intellectual property: The instructor owns all course content, regardless of form. You may share copies with classmates during the course, but other than that you must keep all of it in any format to yourself forever. Recording of classes is forbidden.

I have read and do understand the rules of this course, and I know that following those rules is an important part of class participation. I will abide by all of them.

Name (print): ______________________ Signature (scribble): ______________________ Date: __/__/__

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Imperfection and Correction Even the most able and elevated lawyers err. How, and with what consequences? The

ways, and the results, are too numerous and various to count. We will have to make do with a handful of examples. First, consider this short but comprehensive opinion in Kotts Capital Holdings Ltd. Partnership v. Prebish, 2010 WL 3419455 (N.D. Ill.):

Attorneys and Law Firms James Terrence Hultquist, Leonard Ernest Hud-son, Reed Smith LLP, Chicago, IL, for Plaintiffs.

MEMORANDUM OPINION AND ORDER Milton I. Shadur, Senior District Judge.

Kotts Capital Holdings Limited Partnership (“Kotts Partnership”) and Kotts Capital Holdings, Inc. (“Kotts Corporation”) have filed this Com-plaint against five individual defendants, seeking to invoke federal jurisdiction on diversity of citi-zenship grounds. Although the Complaint is drafted meticulously in terms of its substantive allegations, that is not at all true as to its critical jurisdictional allegations (as the ensuing discus-sion reflects, a major understatement). Hence this sua sponte opinion.

As Wis. Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir. 1986) has stated succinctly, jurisdiction is a threshold inquiry:

The first thing a federal judge should do when a complaint is filed is check to see that federal ju-risdiction is properly alleged.

And as to the issuance of opinions such as this one, Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir. 2005) (internal citations and quotation marks omitted) teaches:

Jurisdiction is the power to declare law, and without it the federal courts cannot proceed. Ac-cordingly, not only may the federal courts police subject matter jurisdiction sua sponte, they must.

In this instance plaintiffs’ counsel have aston-ishingly gotten things wrong as to every one of the parties. As Elizabeth Barrett Browning put it in a far more tender setting, “Let me count the ways.”

As to Kotts Partnership and Kotts Corpora-tion, Complaint ¶1 refers to the latter only as the partnership’s general partner — and even that reference is defective because it identifies neither

of the dual aspects of corporate citizenship as de-fined by 28 U.S.C. § 1332(c)(1).1 Moreover, fully two decades ago the Supreme Court definitively reconfirmed that a reference to the general part-ner alone is not enough (Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990)).

As for the defendants’ side of the “v.” sign, Complaint ¶¶ 2 through 6 speak only of the in-dividual defendants’ places of residence, though by definition the relevant facts are their respec-tive states of citizenship (not necessarily the same). And in that respect Adams v. Catrambone, 359 F.3d 858, 861 n.3 (7th Cir. 2004) (brackets in original omitted), quoting Guar. Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996), has again repeated the command that “‘[w]hen the parties allege residence but not citizenship, the district court must dismiss the suit.’”

This action is therefore dismissed for lack of the required establishment of federal subject mat-ter jurisdiction. That said, this Court recognizes that the defects identified here may well be cura-ble, and if such is the case a full rewriting of the Complaint and the filing of new lawsuit might re-quire more work than a possible resort to Fed. R. Civ. P. (“Rule”) 59(e). But if that proves to be so, it seems fair to attach the same price tag to that alternative as to the filing of a new action.

Accordingly, plaintiffs and their counsel will be jointly obligated to pay a $350 fine to the Dis-trict Court Clerk if an appropriate Rule 59(e) motion hereafter provides the missing infor-mation that can then lead to the vacatur of this judgment of dismissal. In the meantime, though this may prove unduly optimistic, this Court is is-suing its customary initial scheduling order, to be operative if a vacatur turns out to be called for.

1 And as if to show that the Complaint’s draftsman never proof-read the final product, Complaint ¶ 1 speaks of Kotts Corpora-tion only as “a corporation organized under the laws of STATE.”

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At the time Judge Shadur issued his Kotts Capital opinion, James T. Hultquist had been in practice for about 20 years and was a partner at Reed Smith, a big, prestigious law firm. His associate, Leonard E. Hudson, had been out of law school and with Reed Smith for about three years. Both are still with Reed Smith today.

Second, consider this excerpt from Judge Richard Posner’s opinion for the court in U.S. v. Pickering, 794 F.3d 802 (7th Cir. 2015):

A final point: during the brief hearing the judge seven times addressed the defendant by her first name. Calling a witness, let alone a testifying criminal defendant, by his or her first name is not proper conduct for a judge.

This litigation has been mishandled by both

the district court and the Justice Department, which should not be defending the judgment. The judgment is reversed and the case remanded with instructions to enter a judgment of acquittal. The $250 fine that the defendant has paid must be refunded to her forthwith.

At the time Judge Posner’s opinion in Pickering was issued, the judge he was reversing and reprimanding — District Judge Frederick J. Kapala — had been on the federal bench for about eight years. He had previously spent 25 years as an Illinois state judge, five years in private practice, and one year as an Illinois assistant state’s attorney. He is still a judge on the U.S. District Court for the Northern District of Illinois today.

Third, consider this little passage from David Dorsen’s biography of a great and famous judge (whose name ought to bring to mind the question, “what is chicken?”), Henry Friendly: Greatest Judge of His Era 82 (2012) (endnotes omitted):

Friendly’s first day on the bench [of the U.S. Court of Appeals for the Second Circuit], October 6, 1959, taught him a valuable lesson. Following a flood, a railroad sold preferred stock to bolster its eco-nomic situation. The government filed suit in United States v. New York, New Haven & Hartford R.R. to stop the sale, claiming that a carrier subject to the Interstate Commerce Act could not lawfully change the rights of holders of a large portion of its preferred stock without authorization from the Interstate Commerce Commission. On the appeal, Friendly found for the government. After the judgment had become final, the government brought to the court’s attention the Expediting Act of 1903, which re-quired appeals in ICC cases to go from the district court straight to the Supreme Court, bypassing the court of appeals. Following additional briefing, Friendly agreed and vacated his earlier opinion. The event was particularly embarrassing because it directly implicated the Supreme Court. [Supreme Court Justice Felix] Frankfurter sent Friendly a comforting note. After saying that he told his students, “I thought it was invigorating for a lawyer to lose his first case,” he added, “After coming down here I de-cided that it was a healthy experience for a judge very early in his career to stub his toe by reasonable enough relying on a solid assumption without subjecting it to critical examination.” Friendly thanked him for his “note of consolation.” Thereafter, he independently examined the jurisdictional bases for reaching his court and dismissed many cases on his own initiative . . . .

Surely, a thoughtful student of law and law practice can find both consolation and cause for pause in these episodes of lawyerly imperfection and correction.

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GUIDE FOR

COUNSEL

IN CASES TO BE ARGUED

BEFORE THE

SUPREME COURT OF THE UNITED STATES

October Term 2014

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5 GUIDE FOR COUNSEL, PART II

E. YOUR ARGUMENT

1. Preparation Many attorneys find it very educational to attend a Court

room session before their scheduled argument day. If you choose to do this, feel free to visit the Clerk’s Office and introduce yourself to the Clerk. The same applies to the Marshal.

Remember that briefs are different from oral argument. A complex issue might take up a large portion of your brief, but there might be no need to argue that issue. Merits briefs should contain a logical review of all issues in the case. Oral arguments are not designed to summarize briefs, but to present the opportunity to stress the main issues of the case that might persuade the Court in your favor.

It has been said that preparing for oral argument at the Supreme Court is like packing your clothes for an ocean cruise. You should lay out all the clothes you think you will need, and then return half of them to the closet. When preparing for oral argument, eliminate half of what you initially

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planned to cover. Your allotted time passes quickly, especially when numerous questions come from the Court. Be prepared to skip over much of your planned argument and stress your strongest points.

Some counsel find it useful to have a section in their notes entitled “cut to the chase.” They refer to that section in the event that most of their time has been consumed by answering questions posed by the Justices. This allows them to use the few precious minutes remaining to stress their main points.

If your argument focuses on a statute, regulation, or ordinance, be sure that the law is printed in full in one of your pleadings so that you can refer the Justices to it and they can be looking at it during your argument.

Do not bring numerous volumes to the lectern. One notebook will suffice. Please note that a legal sized pad does not fit on the lectern properly. Turning pages in a notebook appears more professional than flipping pages of a legal pad.

Know the record, especially the procedural history of the case. Be prepared to answer a question like: “Why didn’t you make a motion for summary judgment?” You have the opportunity to inform the Justices about facts of which they are not aware. Justices frequently ask: “Is that in the record?” Be prepared to answer. It is impressive when you can respond with the volume and page where the information is located. It is also quite effective to quote from the joint appendix. Do not make assertions about issues or facts not in the record.

Know your client’s business. One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: “What is the difference between beer and ale?” The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.

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For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.

The following are excellent sources of information for arguing counsel: Making Your Case, the Art of Persuading Judges, by Justice Antonin Scalia and Bryan Garner; Supreme Court Practice (10th ed.), by Stephen Shapiro, Kenneth Geller, Timothy Bishop, Edward Hartnett and Dan Himmelfarb; and Supreme Court and Appellate Advocacy: Mastering Oral Argument (2nd ed.), by David Frederick.

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The Know-It-Alls All good lawyers are know-it-alls, but not all lawyers who are know-it-alls are good law-

yers. What is the difference? First, consider an excerpt from Tony Mauro, Calling a Bad Day in Court Malpractice?, Legal Times, July 20, 1998:

In a California courtroom . . . a novel issue is under heated debate: Can a lawyer’s oral argu-ment before the Supreme Court ever be deemed to be so bad that it caused his client to lose the case? . . .

If ever there was an oral argument to raise the Supreme Court malpractice issue, it is the one now before the California court: Thomas Cam-pagne’s now legendary argument on Dec. 2, 1996, before the justices in Glickman v. Wileman Brothers & Elliott Inc., 117 S. Ct. 2130.

Campagne represented California fruit ranch-ers in a First Amendment challenge to federal ag-ricultural marketing orders that essentially forced them to fund generic fruit advertising with which they disagreed. It was cast as an important com-mercial speech case, raising First Amendment is-sues about government-compelled speech.

The oral argument was preceded by a shoving match over who would argue the case – Cam-pagne, who had represented the growers in early stages of the litigation, or renowned First Amendment litigator Michael McConnell, special counsel to Chicago’s Mayer, Brown & Platt who represented some of the growers. Thirteen of the 16 growers in the case asked Campagne to step aside for the arguments, but he refused. The dis-

pute was decided by an unusual coin toss con-ducted by Supreme Court Clerk William Suter.

Campagne won the coin toss, and without moot court preparation or consultation with high court litigators, dove into oral argument for a raucous and riotous half-hour. He largely ignored the First Amendment, instead using his time as an opportunity to educate the justices about the rela-tive virtues of different varieties of California plums. At one point, Campagne even veered into the bizarre and personal, advising Justice Antonin Scalia not to buy green plums lest his family get sick.

The justices were clearly upset by the argu-ments and tried repeatedly to push Campagne back on track. An extraordinary letter to the Court from McConnell after the arguments, disa-vowing concessions made by Campagne, failed to repair the damage. The Court ended up ruling 5-4 in favor of the marketing program, finding that it posed no significant First Amendment problem.

Daniel Gerawan of Reedley, Calif., one of the growers who had tried repeatedly beforehand to get Campagne to step aside and let McConnell argue, sued Campagne for legal malpractice. Without doubt, Gerawan says, the oral argument led directly to the loss.

Second, consider an excerpt from Tony Mauro, Ennis Remembered As One of the ACLU’s Best, The Recorder, Aug. 7, 2000:

But it is as a Supreme Court advocate that [Bruce] Ennis may be best remembered. He won 11 of the 16 cases he argued. His preparation for argument was legendary. No matter how late in the game he took on a case, Ennis wanted to know everything about its background and about his client. . . .

In the commercial speech case, Rubin v. Coors Brewing Corp. in 1995, Ennis’ meticulous prepara-tion earned him a permanent place in Supreme Court lore. Ennis, arguing on behalf of Coors,

challenged a federal restriction on beer labels. But what Justice Antonin Scalia wanted to

know during oral argument seemed like a trivia question: What was the difference between beer and ale? Without missing a beat, Ennis told him that ale resulted from a “top fermentation pro-cess,” while beer came from the bottom.

Stunned Coors officials in the audience later said they could not have answered the question themselves. But Ennis, it so happened, had come across a technical explanation of the brewing

11

process in the transcript of a 1934 congressional hearing that he read in preparation for arguments.

The beer-ale colloquy has been memorialized in a guidebook for counsel arguing before the Su-preme Court that is issued by the Court’s clerk, under the heading “Know your client’s business.” Without mentioning the names of Ennis or Scalia, the entry noted that “the justice who posed the question thanked the counsel in a warm and gra-cious manner.” Coors won the case 9-0.

But Ennis was not just prepared for trivia questions. He was also ready strategically, in many instances devising three different answers to questions he expected to be asked. The an-

swer he picked depended on which justice asked the question.

If the query came from a hostile justice, Ennis had a quick reply ready that would enable him to change the subject fast. If it came from a justice he thought he could persuade, he had an answer ready with his best argument. A third answer was reserved for justices he already thought were on his side.

“If he knew he had three justices in his pocket going in, he focused his argument on winning two more,” said Ogden. “He had a sense of the whole package.”

Third, consider the list of outside counsel (from the Jenner & Block firm) on the cover page of Respondent’s merits brief in the Coors case: Bruce J. Ennis, Jr. (Counsel of Record), Donald B. Verrilli, Jr. , Paul M. Smith, and Nory Miller.

And, finally, consider this anecdote from Warner W. Gardner’s memoir, Pebbles From The Paths Behind: The Public Path 1909-1947 at 124-25 (1989):

May 11, 1942, was a red-letter Supreme Court day for me, in which I “won” a case after a half hour’s preparation. I had gone to the Court to move the admission of a capable black attorney named Crockett who was on my staff, and had been pleased to note that the Chief Justice of Texas was a subordinate part of Crockett’s group being admitted. I left at the luncheon recess and was caught by the Marshall just as I was going down the marble steps and escorted back to the Court room, where the Justices had remained. The[y] had just discovered that the next case, a prosecution of one McCann, was one where he planned to appear pro se. Chief Justice Stone, evi-

dently assuming that one who had left the Solici-tor General’s Office had left the Government (a sentiment I rather shared), appointed me counsel either to present his case after the luncheon recess or to advise the Court what should be done. I spent the half hour with McCann and then pre-sented the Court with three points, each of which I “won.” (a) The issues were serious, and deserved argument. (b) They were also too complex to prepare in half an hour. (c) As I remained a Gov-ernment attorney, someone else should be ap-pointed to represent McCann. His conviction was affirmed at the next Term, but the vote was 5-4. Adams v. U.S. ex. rel. McCann, 317 U.S. 269 (1942).

12

OCTOBER TERM, 1984

Syllabus 471 U. S.

UNITED STATES ET AL. v. LOCKE ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEVADA

No. 83-1394. Argued November 6, 1984-Decided April 1, 1985

Section 314 of the Federal Land Policy and Management Act of 1976(FLPMA) establishes a federal recording system that is designed to ridfederal lands of stale mining claims and to provide federal land man-agers with up-to-date information that allows them to make informedland management decisions. Section 314(b) requires that mining claimslocated prior to FLPMA's enactment be initially recorded with the Bu-reau of Land Management (BLM) within three years of the enactment,and § 314(a) requires that the claimant, in the year of initial recordingand "prior to December 31" of every year after that, file with stateofficials and the BLM a notice of intention to hold a claim, an affidavit ofassessment work performed on the claim, or a detailed reporting form.Section 314(c) provides that failure to comply with either of these re-quirements "shall be deemed conclusively to constitute an abandonment"of the claim. Appellees, who had purchased mining claims before 1976,complied with the initial recording requirement but failed to meeton time their first annual filing requirement, not filing with the BLMuntil December 31. Subsequently, the BLM notified appellees thattheir claims had been declared abandoned and void due to their tardyfiling. After an unsuccessful administrative appeal, appellees filed anaction in Federal District Court, alleging that § 314(c) effected an uncon-stitutional taking of their property without just compensation and deniedthem due process. The District Court issued summary judgment inappellees' favor, holding that § 314(c) created an impermissible irrebutta-ble presumption that claimants who fail to make a timely filing intendedto abandon their claims. Alternatively, the court held that the 1-daylate filing "substantially complied" with § 314(a) and the implementingregulations.

Held:1. Section 314(a)'s plain language-"prior to December 31'-read in

conjunction with BLM regulations makes clear that the annual filingsmust be made on or before December 30. Thus, the BLM did not actultra vires in concluding that appellees' filing was untimely. Pp. 93-96.

2. Congress intended in § 314(c) to extinguish those claims for whichtimely filings were not made. Specific evidence of intent to abandon ismade irrelevant by § 314(c); the failure to file on time, in and of itself,causes a claim to be lost. Pp. 97-100.

13

UNITED STATES v. LOCKE

84 Syllabus

3. The annual filing deadline cannot be complied with, substantially orotherwise, by filing late-even by one day. Pp. 100-102.

4. Section 314(c) is not unconstitutional. Pp. 103-110.(a) Congress was well within its affirmative powers in enacting the

filing requirement, in imposing the penalty of extinguishment in § 314(c),and in applying the requirement and sanction to claims located beforeFLPMA was enacted. Pp. 104-107.

(b) Appellees' property loss was one they could have avoided withminimal burden; it was their failure to file on time, not Congress' action,that caused their property rights to be extinguished. Regulation ofproperty rights does not "take" private property when an individual'sreasonable, investment-backed expectations can continue to be realizedas long as he complies with reasonable regulations. Pp. 107-108.

(c) FLPMA provides appellees with all the process that is theirconstitutional due. The Act's recording provisions clearly afford thosewithin the Act's reach a reasonable opportunity both to familiarize them-selves with the general requirements imposed and to comply with thoserequirements. As the Act constitutes purely economic regulation,Congress was entitled to conclude that it was preferable to place asubstantial portion of the burden on claimants to make the nationalrecording system work. Pp. 108-110.

573 F. Supp. 472, reversed and remanded.

MARSHALL, J., delivered the opinion of the Court, in which BURGER,

C. J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined.O'CONNOR, J., filed a concurring opinion, post, p. 110. POWELL, J., filed adissenting opinion, post, p. 112. STEVENS, J., filed a dissenting opinion,in which BRENNAN, J., joined, post, p. 117.

Carolyn F. Corwin argued the cause for appellants. Withher on the briefs were Solicitor General Lee, Assistant Attor-ney General Habicht, Deputy Solicitor General Claiborne,David C. Shilton, and Arthur E. Gowran.

Harold A. Swafford argued the cause for appellees. Withhim on the brief was John W. Hoffman.*

*Laurens H. Silver and John Leshy filed a brief for the Sierra Club

as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of

Nevada by Brian McKay, Attorney General, and James C. Smith, DeputyAttorney General; for the Alaska Miners Association et al. by Ronald A.Zumbrun and Robin L. Rivett; for the Colorado Mining Association by

14

OCTOBER TERM, 1984

Opinion of the Court 471 U. S.

JUSTICE MARSHALL delivered the opinion of the Court.The primary question presented by this appeal is whether

the Constitution prevents Congress from providing that hold-ers of unpatented mining claims who fail to comply with theannual filing requirements of the Federal Land Policy andManagement Act of 1976 (FLPMA), 43 U. S. C. § 1744, shallforfeit their claims.

I

From the enactment of the general mining laws in the 19thcentury until 1976, those who sought to make their living bylocating and developing minerals on federal lands were virtu-ally unconstrained by the fetters of federal control. Thegeneral mining laws, 30 U. S. C. § 22 et seq., still in effecttoday, allow United States citizens to go onto unappropri-ated, unreserved public land to prospect for and develop cer-tain minerals. "Discovery" of a mineral deposit, followed bythe minimal procedures required to formally "locate" the de-posit, gives an individual the right of exclusive possession ofthe land for mining purposes, 30 U. S. C. § 26; as long as $100of assessment work is performed annually, the individualmay continue to extract and sell minerals from the claimwithout paying any royalty to the United States, 30 U. S. C.§ 28. For a nominal sum, and after certain statutory con-ditions are fulfilled, an individual may patent the claim,thereby purchasing from the Federal Government the landand minerals and obtaining ultimate title to them. Patent-ing, however, is not required, and an unpatented miningclaim remains a fully recognized possessory interest. Bestv. Humboldt Placer Mining Co., 371 U. S. 334, 335 (1963).

By the 1960's, it had become clear that this 19th-centurylaissez-faire regime had created virtual chaos with respect tothe public lands. In 1975, it was estimated that more than

Randy L. Parcel; for Mobil Oil Corp. by Stephen D. Alfers and William A.Hillhouse II; and for the Mountain States Legal Foundation by K. PrestonOade, Jr.

15


84 Opinion of the Court

6 million unpatented mining claims existed on public landsother than the national forests; in addition, more than halfthe land in the National Forest System was thought to becovered by such claims. S. Rep. No. 94-583, p. 65 (1975).Many of these claims had been dormant for decades, andmany were invalid for other reasons, but in the absence of afederal recording system, no simple way existed for deter-mining which public lands were subject to mining locations,and whether those locations were valid or invalid. Ibid. Asa result, federal land managers had to proceed slowly andcautiously in taking any action affecting federal land lest thefederal property rights of claimants be unlawfully disturbed.Each time the Bureau of Land Management (BLM) proposeda sale or other conveyance of federal land, a title search inthe county recorder's office was necessary; if an outstandingmining claim was found, no matter how stale or apparentlyabandoned, formal administrative adjudication was requiredto determine the validity of the claim.1

After more than a decade of studying this problem inthe context of a broader inquiry into the proper manage-ment of the public lands in the modern era, Congress in1976 enacted FLPMA, Pub. L. 94-579, 90 Stat. 2743 (codi-fied at 43 U. S. C. § 1701 et seq.). Section 314 of theAct establishes a federal recording system that is designedboth to rid federal lands of stale mining claims and toprovide federal land managers with up-to-date informa-tion that allows them to make informed land managementdecisions.2 For claims located before FLPMA's enact-

'See generally Strauss, Mining Claims on Public Lands: A Study of

Interior Department Procedures, 1974 Utah L. Rev. 185, 193, 215-219.2The text of 43 U. S. C. § 1744 provides, in relevant part, as follows:

"Recordation of Mining Claims

"(a) Filing requirements"The owner of an unpatented lode or placer mining claim located prior to

October 21, 1976, shall, within the three-year period following October 21,

16

OCTOBER TERM, 1984


ment,3 the federal recording system imposes two generalrequirements. First, the claims must initially be registeredwith the BLM by filing, within three years of FLPMA'senactment, a copy of the official record of the notice or cer-

1976 and prior to December 31 of each year thereafter, file the instrumentsrequired by paragraphs (1) and (2) of this subsection....

"(1) File for record in the office where the location notice or certificate isrecorded either a notice of intention to hold the mining claim (including butnot limited to such notices as are provided by law to be filed when there hasbeen a suspension or deferment of annual assessment work), an affidavitof assessment work performed thereon, on a detailed report provided bysection 28-1 of title 30, relating thereto.

"(2) File in the office of the Bureau designated by the Secretary a copyof the official record of the instrument filed or recorded pursuant to para-graph (1) of this subsection, including a description of the location of themining claim sufficient to locate the claimed lands on the ground.

"(b) Additional filing requirements"The owner of an unpatented lode or placer mining claim or mill or tunnel

site located prior to October 21, 1976 shall, within the three-year periodfollowing October 21, 1976, file in the office of the Bureau designated bythe Secretary a copy of the official record of the notice of location or certifi-cate of location, including a description of the location of the mining claimor mill or tunnel site sufficient to locate the claimed lands on the ground.The owner of an unpatented lode or placer mining claim or mill or tunnelsite located after October 21, 1976 shall, within ninety days after the dateof location of such claim, file in the office of the Bureau designated by theSecretary a copy of the official record of the notice of location or certificateof location, including a description of the location of the mining claim or millor tunnel site sufficient to locate the claimed lands on the ground.

"(c) Failure to file as constituting abandonment; defective or untimelyfiling

"The failure to file such instruments as required by subsections (a) and(b) of this subsection shall be deemed conclusively to constitute an aban-donment of the mining claim or mill or tunnel site by the owner; but it shallnot be considered a failure to file if the instrument is defective or not timelyfiled for record under other Federal laws permitting filing or recordingthereof, or if the instrument is filed for record by or on behalf of some butnot all of the owners of the mining claim or mill or tunnel site."

I A somewhat different scheme applies to claims located after October21, 1976, the date the Act took effect.

17



tificate of location. 90 Stat. 2743, § 314(b), 43 U. S. C.§ 1744(b). Second, in the year of the initial recording, and"prior to December 31" of every year after that, the claimantmust file with state officials and with BLM a notice of inten-tion to hold the claim, an affidavit of assessment work per-formed on the claim, or a detailed reporting form. 90 Stat.2743, § 314(a), 43 U. S. C. § 1744(a). Section 314(c) of theAct provides that failure to comply with either of theserequirements "shall be deemed conclusively to constitute anabandonment of the mining claim .. .by the owner." 43U. S. C. § 1744(c).

The second of these requirements-the annual filing ob-ligation-has created the dispute underlying this appeal.Appellees, four individuals engaged "in the business of op-erating mining properties in Nevada,"4 purchased in 1960 and1966 10 unpatented mining claims on public lands near Ely,Nevada. These claims were major sources of gravel andbuilding material: the claims are valued at several milliondollars, 5 and, in the 1979-1980 assessment year alone, appel-lees' gross income totaled more than $1 million.6 Through-out the period during which they owned the claims, appelleescomplied with annual state-law filing and assessment workrequirements. In addition, appellees satisfied FLPMA'sinitial recording requirement by properly filing with BLM anotice of location, thereby putting their claims on recordfor purposes of FLPMA.

At the end of 1980, however, appellees failed to meet ontime their first annual obligation to file with the Federal Gov-ernment. After allegedly receiving misleading informationfrom a BLM employee,7 appellees waited until December 31

'Complaint 2.5Id., 15.6573 F. Supp. 472, 474 (1983). From 1960 to 1980, total gross income

from the claims exceeded $4 million. Ibid.I An affidavit submitted to the District Court by one of appellees'

employees stated that BLM officials in Ely had told the employee that the

18

OCTOBER TERM, 1984


to submit to BLM the annual notice of intent to hold or proofof assessment work performed required under § 314(a) ofFLPMA, 43 U. S. C. § 1744(a). As noted above, that sec-tion requires these documents to be filed annually "prior toDecember 31." Had appellees checked, they further wouldhave discovered that BLM regulations made quite clear thatclaimants were required to make the annual filings in theproper BLM office "on or before December 30 of each calen-dar year." 43 CFR § 3833.2-1(a) (1980) (current version at43 CFR § 3833.2-1(b)(1) (1984)). Thus, appellees' filing wasone day too late.

This fact was brought painfully home to appellees whenthey received a letter from the BLM Nevada State Office in-forming them that their claims had been declared abandonedand void due to their tardy filing. In many cases, loss of aclaim in this way would have minimal practical effect; the

filing could be made at the BLM Reno office "on or before December 31,1980." Affidavit of Laura C. Locke 3. The 1978 version of a BLM ques-tion and answer pamphlet erroneously stated that the annual filings had tobe made "on or before December 31" of each year. Staking a MiningClaim on Federal Lands 9-10 (1978). Later versions have corrected thiserror to bring the pamphlet into accord with the BLM regulations thatrequire the filings to be made "on or before December 30."

JUSTICE STEVENS and JUSTICE POWELL seek to make much of thispamphlet and of the uncontroverted evidence that appellees were told aDecember 31 filing would comply with the statute. See post, at 117, 122,128. However, at the time appellees filed in 1980, BLM regulations andthe then-current pamphlets made clear that the filing was required "on orbefore December 30." Thus, the dissenters' reliance on this pamphletwould seem better directed to the claim that the United States was equita-bly estopped from forfeiting appellees' claims, given the advice of the BLMagent and the objective basis the 1978 pamphlet provides for crediting theclaim that such advice was given. The District Court did not consider thisestoppel claim. Without expressing any view as to whether, as a matterof law, appellees could prevail on such a theory, see Heckler v. CommunityHealth Services of Crawford County, Inc., 467 U. S. 51 (1984), we leaveany further treatment of this issue, including fuller development of therecord, to the District Court on remand.

19



claimant could simply locate the same claim again and thenrerecord it with BLM. In this case, however, relocation ofappellees' claims, which were initially located by appellees'predecessors in 1952 and 1954, was prohibited by the Com-mon Varieties Act of 1955, 30 U. S. C. § 611; that Act pro-spectively barred location of the sort of minerals yielded byappellees' claims. Appellees' mineral deposits thus es-cheated to the Government.

After losing an administrative appeal, appellees filed thepresent action in the United States District Court for theDistrict of Nevada. Their complaint alleged, inter alia,that § 314(c) effected an unconstitutional taking of their prop-erty without just compensation and denied them due process.On summary judgment, the District Court held that § 314(c)did indeed deprive appellees of the process to which theywere constitutionally due. 573 F. Supp. 472 (1983). TheDistrict Court reasoned that § 314(c) created an impermissi-ble irrebuttable presumption that claimants who failed tomake a timely filing intended to abandon their claims.Rather than relying on this presumption, the Governmentwas obliged, in the District Court's view, to provide individ-ualized notice to claimants that their claims were in danger ofbeing lost, followed by a post-filing-deadline hearing at whichthe claimants could demonstrate that they had not, in fact,abandoned a claim. Alternatively, the District Court heldthat the 1-day late filing "substantially complied" with theAct and regulations.

Because a District Court had held an Act of Congress un-constitutional in a civil suit to which the United States wasa party, we noted probable jurisdiction under 28 U. S. C.§ 1252. 467 U. S. 1225 (1984).1 We now reverse.

'That the District Court decided the case on both constitutional andstatutory grounds does not affect this Court's obligation under 28 U. S. C.§ 1252 to take jurisdiction over the case; as long as the unconstitutionalityof an Act of Congress is one of the grounds of decision below in a civil suit

20

OCTOBER TERM, 1984


II

Appeal under 28 U. S. C. § 1252 brings before this Courtnot merely the constitutional question decided below, but theentire case. McLucas v. DeChamplain, 421 U. S. 21, 31(1975); United States v. Raines, 362 U. S. 17, 27, n. 7 (1960).The entire case includes nonconstitutional questions actuallydecided by the lower court as well as nonconstitutionalgrounds presented to, but not passed on, by the lower court.United States v. Clark, 445 U. S. 23, 27-28 (1980).1 Theseprinciples are important aids in the prudential exercise of ourappellate jurisdiction, for when a case arrives here by appealunder 28 U. S. C. § 1252, this Court will not pass on the con-stitutionality of an Act of Congress if a construction of theAct is fairly possible, or some other nonconstitutional groundfairly available, by which the constitutional question can beavoided. See Heckler v. Mathews, 465 U. S. 728, 741-744(1984); Johnson v. Robison, 415 U. S. 361, 366-367 (1974);cf. United States v. Congress of Industrial Organizations,335 U. S. 106, 110 (1948) (appeals under former CriminalAppeals Act); see generally Ashwander v. TVA, 297 U. S.288, 347 (1936) (Brandeis, J., concurring). Thus, we turnfirst to the nonconstitutional questions pressed below.

to which the United States is a party, appeal lies directly to this Court.United States v. Rock Royal Co-operative, Inc., 307 U. S. 533, 541 (1939).

Another District Court in the West similarly has declared § 314(c) uncon-stitutional with respect to invalidation of claims based on failure to meetthe initial recordation requirements of § 314(a) in timely fashion. Rogersv. United States, 575 F. Supp. 4 (Mont. 1982).

9 When the nonconstitutional questions have not been passed on by thelower court, we may vacate the decision below and remand with instruc-tions that those questions be decided, see Youakim v. Miller, 425 U. S.231 (1976), or we may choose to decide those questions ourselves withoutbenefit of lower court analysis, see United States v. Clark. The choicebetween these options depends on the extent to which lower courtfactfinding and analysis of the nonconstitutional questions will be necessaryor useful to our disposition of those questions.

21



III

ABefore the District Court, appellees asserted that the

§ 314(a) requirement of a filing "prior to December 31 of eachyear" should be construed to require a filing "on or beforeDecember 31." Thus, appellees argued, their December 31filing had in fact complied with the statute, and the BLMhad acted ultra vires in voiding their claims.

Although the District Court did not address this argument,the argument raises a question sufficiently legal in naturethat we choose to address it even in the absence of lowercourt analysis. See, e. g., United States v. Clark, supra.It is clear to us that the plain language of the statute simplycannot sustain the gloss appellees would put on it. As evencounsel for appellees conceded at oral argument, § 314(a) "is astatement that Congress wanted it filed by December 30th.I think that is a clear statement. . . ." Tr. of Oral Arg. 27;see also id., at 37 ("A literal reading of the statute wouldrequire a December 30th filing . . ."). While we will notallow a literal reading of a statute to produce a result"demonstrably at odds with the intentions of its drafters,"Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 571(1982), with respect to filing deadlines a literal reading ofCongress' words is generally the only proper reading of thosewords. To attempt to decide whether some date other thanthe one set out in the statute is the date actually "intended"by Congress is to set sail on an aimless journey, for thepurpose of a filing deadline would be just as well served bynearly any date a court might choose as by the date Congresshas in fact set out in the statute. "Actual purpose issometimes unknown," United States Railroad RetirementBoard v. Fritz, 449 U. S. 166, 180 (1980) (STEVENS, J.,concurring), and such is the case with filing deadlines;as might be expected, nothing in the legislative history sug-gests why Congress chose December 30 over December 31,

22

OCTOBER TERM, 1984


or over September 1 (the end of the assessment year formining claims, 30 U. S. C. § 28), as the last day on whichthe required filings could be made. But "[d]eadlines areinherently arbitrary," while fixed dates "are often essentialto accomplish necessary results." United States v. Boyle,469 U. S. 241, 249 (1984). Faced with the inherent arbi-trariness of filing deadlines, we must, at least in a civil case,apply by its terms the date fixed by the statute. Cf. UnitedStates Railroad Retirement Board v. Fritz, supra, at 179.10

Moreover, BLM regulations have made absolutely clearsince the enactment of FLPMA that "prior to December 31"means what it says. As the current version of the filingregulations states:

"The owner of an unpatented mining claim located onFederal lands ... shall have filed or caused to have beenfiled on or before December 30 of each calendar year...evidence of annual assessment work performed duringthe previous assessment year or a notice of intention tohold the mining claim." 43 CFR §3833.2-1(b)(1) (1984)(emphasis added).

See also 43 CFR § 3833.2-1(a) (1982) (same); 43 CFR § 3833.2-1(a) (1981) (same); 43 CFR §3833.2-1(a) (1980) (same); 43CFR §3833.2-1(a) (1979) (same); 43 CFR §3833.2-1(a)(1)(1978) ("prior to" Dec. 31); 43 CFR §3833.2-1(a)(1) (1977)("prior to" Dec. 31). Leading mining treatises similarly

"0Statutory filing deadlines are generally subject to the defenses of

waiver, estoppel, and equitable tolling. See Zipes v. Trans World Air-lines, Inc., 455 U. S. 385, 392-398 (1982). Whether this general principleapplies to deadlines that run in favor of the Government is a question onwhich we express no opinion today. In addition, no showing has beenmade that appellees were in any way "unable to exercise the usual care anddiligence" that would have allowed them to meet the filing deadline or tolearn of its existence. See United States v. Boyle, 469 U. S. 241, 253(1985) (BRENNAN, J., concurring). Of course, at issue in Boyle was an ex-plicit provision in the Internal Revenue Code that provided a reasonable-cause exception to the Code's filing deadlines, while FLPMA contains noanalogous provision.

23



inform claimants that "[i]t is important to note that the filingof a notice of intention or evidence of assessment work mustbe done prior to December 31 of each year, i. e., on or beforeDecember 30." 2 American Law of Mining § 7.23D, p. 150.2(Supp. 1983) (emphasis in original); see also 23 Rocky Moun-tain Mineral Law Institute 25 (1977) (same). If appellees,who were businessmen involved in the running of a majormining operation for more than 20 years, had any questionsabout whether a December 31 filing complied with the stat-ute, it was incumbent upon them, as it is upon other business-men, see United States v. Boyle, supra, to have checked theregulations or to have consulted an attorney for legal advice.Pursuit of either of these courses, rather than the submissionof a last-minute filing, would surely have led appellees to theconclusion that December 30 was the last day on which theycould file safely.

In so saying, we are not insensitive to the problems posedby congressional reliance on the words "prior to December31." See post, p. 117 (STEVENS, J., dissenting). But thefact that Congress might have acted with greater clarity orforesight does not give courts a carte blanche to redraft stat-utes in an effort to achieve that which Congress is perceivedto have failed to do. "There is a basic difference betweenfilling a gap left by Congress' silence and rewriting rules thatCongress has affirmatively and specifically enacted." MobilOil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978). Noris the Judiciary licensed to attempt to soften the clear importof Congress' chosen words whenever a court believes thosewords lead to a harsh result. See Northwest Airlines, Inc.v. Transport Workers, 451 U. S. 77, 98 (1981). On the con-trary, deference to the supremacy of the Legislature, as wellas recognition that Congressmen typically vote on the lan-guage of a bill, generally requires us to assume that "thelegislative purpose is expressed by the ordinary meaning ofthe words used." Richards v. United States, 369 U. S. 1, 9(1962). "Going behind the plain language of a statute insearch of a possibly contrary congressional intent is 'a step to

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OCTOBER TERM, 1984


be taken cautiously' even under the best of circumstances."American Tobacco Co. v. Patterson, 456 U. S. 63, 75 (1982)(quoting Piper v. Chris-Craft Industries, Inc., 430 U. S. 1,26 (1977)). When even after taking this step nothing in thelegislative history remotely suggests a congressional intentcontrary to Congress' chosen words, and neither appelleesnor the dissenters have pointed to anything that so suggests,any further steps take the courts out of the realm of inter-pretation and place them in the domain of legislation. Thephrase "prior to" may be clumsy, but its meaning is clear."Under these circumstances, we are obligated to apply the"prior to December 31" language by its terms. See, e. g.,American Tobacco Co. v. Patterson, supra, at 68; ConsumerProduct Safety Comm'n v. GTE Sylvania, Inc., 447 U. S.102, 108 (1980).

The agency's regulations clarify and confirm the importof the statutory language by making clear that the annualfilings must be made on or before December 30. These regu-lations provide a conclusive answer to appellees' claim, forwhere the language of a filing deadline is plain and the agen-cy's construction completely consistent with that language,the agency's construction simply cannot be found "sufficientlyunreasonable" as to be unacceptable. FEC v. DemocraticSenatorial Campaign Committee, 454 U. S. 27, 39 (1981).

We cannot press statutory construction "to the point of dis-ingenuous evasion" even to avoid a constitutional question.Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933)(Cardozo, J.).12 We therefore hold that BLM did not actultra vires in concluding that appellees' filing was untimely.

"Legislative drafting books are filled with suggestions that the phrase"prior to" be replaced with the word "before," see, e. g., R. Dickerson,Materials on Legal Drafting 293 (1981), but we have seen no suggestionthat "prior to" be replaced with "on or before"-a phrase with obviouslydifferent substantive content.

" We note that the United States Code is sprinkled with provisions thatrequire action "prior to" some date, including at least 14 provisions thatcontemplate action "prior to December 31." See 7 U. S. C. § 609(b)(5); 12U. S. C. § 1709(o)(1)(E); 12 U. S. C. § 1823(g); 12 U. S. C. § 1841(a)(5)(A);

25



B

Section 314(c) states that failure to comply with the filingrequirements of §§ 314(a) and 314(b) "shall be deemed conclu-sively to constitute an abandonment of the mining claim."We must next consider whether this provision expresses acongressional intent to extinguish all claims for which filingshave not been made, or only those claims for which filingshave not been made and for which the claimants have aspecific intent to abandon the claim. The District Courtadopted the latter interpretation, and on that basis concludedthat § 314(c) created a constitutionally impermissible irrebut-table presumption of abandonment. The District Court rea-soned that, once Congress had chosen to make loss of a claimturn on the specific intent of the claimant, a prior hearingand findings on the claimant's intent were constitutionallyrequired before the claim of a nonfiling claimant could beextinguished.

In concluding that Congress was concerned with the spe-cific intent of the claimant even when the claimant had failed

22 U. S. C. § 3784(c); 26 U. S. C. § 503(d)(1); 33 U. S. C. § 1319(a)(5)(B);42 U. S. C. § 415(a)(7)(E)(ii) (1982 ed., Supp. III); 42 U. S. C. § 1962(d)-17(b); 42 U. S. C. § 5614(b)(5); 42 U. S. C. § 7502(a)(2); 42 U. S. C. § 7521(b)(2); 43 U. S. C. § 1744(a); 50 U. S. C. App. § 1741(b)(1). Dozens of statestatutes and local ordinances undoubtedly incorporate similar "prior toDecember 31" deadlines. In addition, legislatures know how to make ex-plicit an intent to allow action on December 31 when they employ a December31 date in a statute. See, e. g., 7 U. S. C. § 609(b)(2); 22 U. S. C. §§ 3303(b)(3)(B) and (c); 43 U. S. C. § 256a.

It is unclear whether the arguments advanced by the dissenters aremeant to apply to all of these provisions, or only to some of them; if thelatter, we are given little guidance as to how a court is to go about therather eclectic task of choosing which "prior to December 31" deadlinesit can interpret "flexibly." Understandably enough, the dissenters seekto disavow any intent to call all these "prior to December 31" deadlinesinto question and assure us that this is a "unique case," post, at 117, n. 4(POWELL, J., dissenting), involving a "unique factual matrix," post, at128 (STEVENS, J., dissenting). The only thing we can find unique aboutthis particular December 31 deadline is that the dissenters are willingto go through such tortured reasoning to evade it.

26

OCTOBER TERM, 1984


to make the required filings, the District Court began fromthe fact that neither § 314(c) nor the Act itself defines theterm "abandonment" as that term appears in § 314(c). TheDistrict Court then noted correctly that the common law ofmining traditionally has drawn a distinction between "aban-donment" of a claim, which occurs only upon a showing of theclaimant's intent to relinquish the claim, and "forfeiture" of aclaim, for which only noncompliance with the requirements oflaw must be shown. See, e. g., 2 American Law of Mining§ 8.2, pp. 195-196 (1983) (relied upon by the District Court).Given that Congress had not expressly stated in the statuteany intent to depart from the term-of-art meaning of "aban-donment" at common law, the District Court concluded that§ 314(c) was intended to incorporate the traditional common-law distinction between abandonment and forfeiture. Thus,reasoned the District Court, Congress did not intend to causea forfeiture of claims for which the required filings had notbeen made, but rather to focus on the claimant's actual in-tent. As a corollary, the District Court understood the fail-ure to file to have been intended to be merely one piece ofevidence in a factual inquiry into whether a claimant had aspecific intent to abandon his property.

This construction of the statutory scheme cannot withstandanalysis. While reference to common-law conceptions isoften a helpful guide to interpreting open-ended or undefinedstatutory terms, see, e. g., NLRB v. Amax Coal Co., 453U. S. 322, 329 (1981); Standard Oil Co. v. United States, 221U. S. 1, 59 (1911), this principle is a guide to legislativeintent, not a talisman of it, and the principle is not to beapplied in defiance of a statute's overriding purposes andlogic. Although § 314(c) is couched in terms of a conclusivepresumption of "abandonment," there can be little doubt thatCongress intended § 314(c) to cause a forfeiture of all claimsfor which the filing requirements of §§ 314(a) and 314(b) hadnot been met.

To begin with, the Senate version of § 314(c) provided thatany claim not properly recorded "shall be conclusively pre-

27



sumed to be abandoned and shall be void." S. 507, 94thCong., 1st Sess., §311 (1975).13 The Committee Reportaccompanying S. 507 repeatedly indicated that failure tocomply with the filing requirements would make a claim"void." See S. Rep. No. 94-583, pp. 65, 66 (1975). TheHouse legislation and Reports merely repeat the statutorylanguage without offering any explanation of it, but it isclear from the Conference Committee Report that the undis-puted intent of the Senate-to make "void" those claims forwhich proper filings were not timely made-was the intent ofboth Chambers. The Report stated: "Both the Senate billand House amendments provided for recordation of miningclaims and for extinguishment of abandoned claims." H. R.Rep. No. 94-1724, p. 62 (1976) (emphasis added).

In addition, the District Court's construction fails to giveeffect to the "deemed conclusively" language of § 314(c). Ifthe failure to file merely shifts the burden to the claimant toprove that he intends to keep the claim, nothing "conclusive"is achieved by § 314(c). The District Court sought to avoidthis conclusion by holding that § 314(c) does extinguishautomatically those claims for which initial recordings, asopposed to annual filings, have not been made; the DistrictCourt attempted to justify its distinction between initialrecordings and annual filings on the ground that the domi-nant purpose of § 314(c) was to avoid forcing BLM to the"awesome task of searching every local title record" to estab-lish initially a federal recording system. 573 F. Supp., at477. Once this purpose had been satisfied by an initial re-cording, the primary purposes of the "deemed conclusively"language, in the District Court's view, had been met. Butthe clear language of § 314(c) admits of no distinction between

3The Senate bill required only initial recordings, not annual filings, butthis factor is not significant in light of the actions of the Conference Com-mittee; the clear structure of the Senate bill was to impose the sanction ofclaim extinguishment on those who failed to make whatever filings federallaw required.

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OCTOBER TERM, 1984


initial recordings and annual filings: failure to do either "shallbe deemed conclusively to constitute an abandonment."And the District Court's analysis of the purposes of § 314(c)is also misguided, for the annual filing requirements serve apurpose similar to that of the initial recording requirement;millions of claims undoubtedly have now been recorded, andthe presence of an annual filing obligation allows BLM tokeep the system established in § 314 up to date on a yearlybasis. To put the burden on BLM to keep this system cur-rent through its own inquiry into the status of recordedclaims would lead to a situation similar to that which ledCongress initially to make the federal recording system self-executing. The purposes of a self-executing recording sys-tem are implicated similarly, if somewhat less substantially,by both the annual filing obligation and the initial recordingrequirement, and the District Court was not empowered tothwart these purposes or the clear language of § 314(c) byconcluding that §314(c) was actually concerned with onlyinitial recordings.

For these reasons, we find that Congress intended in§ 314(c) to extinguish those claims for which timely filingswere not made. Specific evidence of intent to abandon issimply made irrelevant by § 314(c); the failure to file on time,in and of itself, causes a claim to be lost. See WesternMining Council v. Watt, 643 F. 2d 618, 628 (CA9 1981).

C

A final statutory question must be resolved before we turnto the constitutional holding of the District Court. Relyingprimarily on Hickel v. Oil Shale Corp., 400 U. S. 48 (1970),the District Court held that, even if the statute required afiling on or before December 30, appellees had "substantiallycomplied" by filing on December 31. We cannot accept thisview of the statute.

The notion that a filing deadline can be complied with byfiling sometime after the deadline falls due is, to say the

29



least, a surprising notion, and it is a notion without limitingprinciple. If 1-day late filings are acceptable, 10-day latefilings might be equally acceptable, and so on in a cascade ofexceptions that would engulf the rule erected by the filingdeadline; yet regardless of where the cutoff line is set, someindividuals will always fall just on the other side of it. Filingdeadlines, like statutes of limitations, necessarily operateharshly and arbitrarily with respect to individuals who falljust on the other side of them, but if the concept of a filingdeadline is to have any content, the deadline must be en-forced. "Any less rigid standard would risk encouraginga lax attitude toward filing dates," United States v. Boyle,469 U. S., at 249. A filing deadline cannot be compliedwith, substantially or otherwise, by filing late-even by oneday. Hickel v. Oil Shale Corp., supra, does not support acontrary conclusion. Hickel suggested, although it did nothold, that failure to meet the annual assessment work re-quirements of the general mining laws, 30 U. S. C. § 28,which require that "not less than $100 worth of labor shallbe performed or improvements made during each year,"would not render a claim automatically void. Instead, ifan individual complied substantially but not fully with therequirement, he might under some circumstances be able toretain possession of his claim.

These suggestions in Hickel do not afford a safe haven tomine owners who fail to meet their filing obligations underany federal mining law. Failure to comply fully with thephysical requirement that a certain amount of work be per-formed each year is significantly different from the completefailure to file on time documents that federal law commandsbe filed. In addition, the general mining laws at issue inHickel do not clearly provide that a claim will be lost for fail-ure to meet the assessment work requirements. Thus, itwas open to the Court to conclude in Hickel that Congresshad intended to make the assessment work requirementmerely an indicium of a claimant's specific intent to retain a

30

OCTOBER TERM, 1984


claim. Full compliance with the assessment work require-ments would establish conclusively an intent to keep theclaim, but less than full compliance would not by force of lawoperate to deprive the claimant of his claim. Instead, lessthan full compliance would subject the mine owner to a case-by-case determination of whether he nonetheless intended tokeep his claim. See Hickel, supra, at 56-57.

In this case, the statute explicitly provides that failure tocomply with the applicable filing requirements leads auto-matically to loss of the claim. See Part II-B, supra. Thus,Congress has made it unnecessary to ascertain whether theindividual in fact intends to abandon the claim, and there isno room to inquire whether substantial compliance is indica-tive of the claimant's intent-intent is simply irrelevant if therequired filings are not made. Hickel's discussion of sub-stantial compliance is therefore inapposite to the statutoryscheme at issue here. As a result, Hickel gives miners nogreater latitude with filing deadlines than other individualshave. 14

4 Since 1982, BLM regulations have provided that filings due on or

before December 30 will be considered timely if postmarked on or beforeDecember 30 and received by BLM by the close of business on the follow-ingJanuary 19. 43 CFR § 3833.0-5(m) (1983). Appellees and the dissent-ers attempt to transform this regulation into a blank check generally au-thorizing "substantial compliance" with the filing requirements. Wedisagree for two reasons. First, the regulation was not in effect whenappellees filed in 1980; it therefore cannot now be relied on to validate apurported "substantial compliance" in 1980. Second, that an agency hasdecided to take account of holiday mail delays by treating as timely filed adocument postmarked on the statutory filing date does not require theagency to accept all documents hand-delivered any time before January 19.The agency rationally could decide that either of the options in this sort ofsituation-requiring mailings to be received by the same date that hand-deliveries must be made or requiring mailings to be postmarked by thatdate-is a sound way of administering the statute.

JUSTICE STEVENS further suggests that BLM would have been wellwithin its authority to promulgate regulations construing the statute toallow for December 31 filings. Assuming the correctness of this sugges-

31

OCTOBER TERM, 1984

O'CONNOR, J., concurring 471 U. S.

The judgment below is reversed, and the caseis remanded for further proceedings consistent with thisopinion.

It is so ordered.

32

Snippets What do you make of these morsels? From Daniel Ernest (a lawyer and a professor at

Georgetown University):

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From Pius Pietrzyk (a Catholic priest, a lawyer, and a member of the board of directors of the Legal Services Corporation):

And from Peter King (a sportswriter and not a lawyer):

34

109

BREAKFAST WITH THE JUSTICES

NETWORKING IN THE NINETEENTH CENTURY

Ross E. Davies†

On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States.1 Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 (see page 463 below) and the “Memorial Day Cere-‐‑monies in Independence Square” on September 17 (see page 293). All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”2

† Professor of law at George Mason University and editor of the Green Bag. 1 Philadelphia’s 1876 “Centennial Exhibition” celebrating a century of post-‐‑colonial American progress had been a great success — “truly the first man-‐‑made tourist mecca in the United States.” WILLIAM H. REHNQUIST, CENTENNIAL CRISIS: THE DIS-‐‑PUTED ELECTION OF 1876 at 8 (2004); see also ROBERT W. RYDELL, ALL THE WORLD’S A FAIR: VISIONS OF EMPIRE AT AMERICAN INTERNATIONAL EXPOSITIONS, 1876-‐‑1916 ch. 1 (1984, pbk. 1987). A sequel in Philadelphia on the centennial of the U.S. Constitu-‐‑tion in 1887 was obviously the thing to do. Cf. William F. Swindler, Toward 1987: Guidelines from the Centennial, SUPREME COURT HISTORICAL SOCIETY YEARBOOK (1980). 2 There is plenty of other material about the constitutional centennial scattered throughout the Almanac of which this article is a small part. For a complete — and, indeed, overwhelmingly comprehensive — description of the planning and execu-‐‑tion of that long weekend of constitutional festivities, see Hampton Carson’s two-‐‑volume History of the Celebration of the One Hundredth Anniversary of the Promulgation of the Constitution of the United States (1889).

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GREEN BAG ALMANAC & READER 2014

110

First, there is Samuel Pennypacker’s work, both on the commit-‐‑tee that organized the Breakfast and as the uncredited editor of the published record of proceedings at the Breakfast. Second, there are Justice Horace Gray’s deliberations over visiting Philadelphia and attending the Breakfast.

SAMUEL PENNYPACKER’S NEW FRIENDS

In 1887, Samuel Pennypacker was a prosperous, middle-‐‑aged Philadelphia lawyer — a reputable but not yet prominent figure. He was just the sort of lawyer who, then as now, often toils on bar committees where senior pillars of the bar always preside and sometimes perspire. In his autobiography — written after an illus-‐‑trious career that included service on one of the Pennsylvania Courts of Common Pleas (1889-‐‑1902) and a term as Governor of Pennsylvania (1903-‐‑07) — Pennypacker recalled his work on the Breakfast to the Justices very much that way:

The Constitution of the United States having been adopted in a convention held in Philadelphia in 1787, and from the national point of view this being the most im-‐‑portant event in our history, it was determined to celebrate the centennial anniversary in a fitting manner in 1887. J. Granville Leach3 offered a resolution in the Law Academy that the Chief Justice and the Associate Justices of the Su-‐‑preme Court of the United States be entertained by the bar of the city. The project took shape. McMurtrie4 was made chairman . . . but Leach and I did all the work. We gathered in the subscriptions by personal solicitation at ten dollars each, and made the arrangements.5

Those arrangements are described in detail in a handsome booklet privately printed in 1888 on fine paper and bound in blue cloth with gold lettering. It should come as no surprise that the booklet,

3 One of Pennypacker’s friends and contemporaries. 4 Richard C. McMurtrie was a senior and eminent member of the Philadelphia bar. Geo. Tucker Bispham, Richard C. McMurtrie, 42 AM. L. REGISTER & REV. 845 (Nov. 1894). 5 SAMUEL WHITAKER PENNYPACKER, THE AUTOBIOGRAPHY OF A PENNSYLVANIAN 113, 133 (1918).

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DAVIES, BREAKFAST WITH THE JUSTICES

111

Governor Samuel Pennypacker in his office at the capitol in Harris-‐‑burg, Pennsylvania (circa 1906).

___________________________________________________________

too, was the work of Pennypacker.6 It is reproduced in its entirety (except for the blue cover) on pages 127-‐‑189 below.

In his memoir, Pennypacker goes on to recall that,

My connection with these affairs7 and the correspondence necessarily conducted brought me temporarily into almost intimate association with the Chief Justice and other mem-‐‑

6 Id. at 134. 7 The plural “affairs” is because Pennypacker worked on more than just the Break-‐‑fast during the constitutional centennial.

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112

bers of the Supreme Court. Waite was a dark-‐‑eyed, good-‐‑looking man, well-‐‑groomed, with much courtesy of man-‐‑ner, but he made no other impression on me.8

Some of Pennypacker’s correspondence with Waite has been preserved in Waite’s papers at the Library of Congress, including his original save-‐‑the-‐‑date invitation, which is reproduced on the next page and transcribed below:

209 S. 6th St. Phila. July 25, 1887

Dear Sir: The members of the Bar of Philadelphia have deter-‐‑

mined to give a Dejeuner to the Judges of the Supreme Court of the United States in this city on the 15th of Sep-‐‑tember next upon the occasion of the celebration of the adoption of the Constitution and formation of the govern-‐‑ment.

Your invitation will be sent in due time and this infor-‐‑mal note is written in the hope of preventing other en-‐‑gagements which might interfere with your participation in an event of such interest.

With Great Respect, Sam’l W. Pennypacker

Sec’y Hon. Morrison R. Waite9

Pennypacker’s later correspondence with Waite about the Breakfast is cordial as well (and reproduced on pages 114-‐‑118). Waite does not, however, seem to have preserved any of his replies, although he did keep a copy of a note he wrote to Albert Rosenthal, the artist who created the engraving of Waite that was included in the Breakfast booklet. The engraving is reproduced on page 145, and the note to Rosenthal on pages 119-‐‑120.10

8 PENNYPACKER, THE AUTOBIOGRAPHY OF A PENNSYLVANIAN at 134. 9 Letter from Samuel W. Pennypacker to Morrison R. Waite, July 25, 1887, Box 26, Morrison R. Waite Papers, Manuscript Division, Library of Congress (hereafter “Waite Papers”). 10 Box 27, Waite Papers.

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113

Samuel W. Pennypacker to Morrison R. Waite, July 25, 1887.

___________________________________________________________

39


114

Samuel W. Pennypacker to Morrison R. Waite, Oct. 3, 1887.

___________________________________________________________

40


115

Samuel W. Pennypacker to Morrison R. Waite, Nov. 30, 1887.

___________________________________________________________

41


116

Samuel W. Pennypacker to Morrison R. Waite, Dec. 5, 1887.

___________________________________________________________

42


117

Samuel W. Pennypacker to Morrison R. Waite, Dec. 17, 1887.

___________________________________________________________

43


118

Samuel W. Pennypacker to Morrison R. Waite, Feb. 8, 1888.

___________________________________________________________

44


119

Morrison R. Waite to Albert Rosenthal, Feb. 8, 1888, page 1.

___________________________________________________________

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120

Morrison R. Waite to Albert Rosenthal, Feb. 8, 1888, page 2.

___________________________________________________________

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121

All-‐‑in-‐‑all, probably a pleasant but not exciting correspondence for Mr. Pennypacker, other than the thrill of addressing letters to (and receiving them from) the Chief Justice of the United States. But it was part of his worthy service to the bar, and thus worth doing. The resulting Breakfast was well-‐‑received,11 and the booklet turned out well as well.

Eventually, Pennypacker’s good work also resulted in the kind of good fortune that every toiler on bar committees welcomes, not because such results motivate service to the bar in the first place, but, rather, because it is good to know that good things sometimes happen to those who do good:

As it happened, a few months later, for the first time in my life I had three cases in the Supreme Court of the United States and I went down to Washington, having arranged with a friend at our bar to move for my admission. He failed to appear. Seeing General Benjamin F. Butler, of Massachusetts, looking old, stout, weather-‐‑beaten, but sturdy, with his twist-‐‑ed eye fastened on a brief, I went over to him and said:

“General, you do not know me, but you did know my cousin, General Pennypacker, who fought in your command on the James [River, during the Civil War]. I have been dis-‐‑appointed in not finding a Philadelphia lawyer here, whom I had expected to see, and I should be much pleased as well as honored if you would move for my admission [to the Su-‐‑preme Court bar].”

He turned that eye on my a little athwart and said a little gruffly: “But the rule requires a personal acquaintance. Do you know no one here?”

“Oh, yes, I know all of the Court.” Just then the justices filed in and each of them in turn

nodded to me with a smile, a recognition unusual in court and accorded to no other man there.

“I shall be glad to make the motion,” said the General; and at Pennypacker’s Mills [the family home], along with the papers and letters that relate to the two banquets, is the parchment scroll that certifies my admission to practice in the Supreme Court — on the motion of Benjamin F. Butler, Esq.12

11 See, e.g., Breakfast by the Bar, PHILA. INQUIRER, Sept. 16, 1887, at 3. 12 PENNYPACKER, THE AUTOBIOGRAPHY OF A PENNSYLVANIAN at 134-‐‑35. I found only

47


122

two of his three cases, Sheeder v. Bicking and Sheeder v. Shannon, 131 U.S. 447 (1888).

48

Snippets What do you make of these morsels? From James R. Perry’s Supreme Court Appoint-

ments, 1789-1801: Criteria, Presidential Style and the Press of Events, 6 J. Early Republic 371, 372-74 (1986) (footnotes omitted):

On September 24, 1789, [President George] Washington submitted to the Senate his nominations for the six seats on the Supreme Court. For chief justice, he nominated John Jay of New York; for asso-ciate justices, John Rutledge of South Carolina, James Wilson of Pennsylvania, William Cushing of Mas-sachusetts, Robert H. Harrison of Maryland, and John Blair of Virginia. On September 26 the Senate confirmed all of the nominees. How had the president chosen these six men? Scholars writing about Washington’s appointments generally agree on the criteria most important to him in making nomina-tions to the Court. First, he considered the candidate’s fitness, including his character, health, training, experience, and public recognition or fame. Second, given the jealous localism of the states, he sought a balanced geographic distribution on the high bench. Third, he gave due consideration to a candidate’s sacrifice attendant upon the war for independence. And, finally, he chose candidates who supported the new government established under the Constitution; this gradually evolved into partisanship as the labels of Federalist and Antifederalist gave way to Federalist and Republican. Washington’s first nominees to the Supreme Court exemplified these criteria. But other individuals also fit this profile. The question remains: how did the president select these six?

Washington’s style of decision-making shaped his choice of nominees. He encouraged all interested candidates to make their desires known, but he responded noncommittally to all applications. He did not want to nominate men who would then decline to serve, because this would damage severely the in-fant government’s image. He inquired freely of senators and congressmen as to qualified individuals in their states. About specific applicants, he consulted with trusted advisers, particularly James Madison and Robert Morris. But despite all the consultations, Washington kept secret the names of his nominees until the list was given to the Senate. As Washington wrote some years later in reference to his Supreme Court nominations: “although I do__ at all times__ make the best enquiries my opportunities afford, to come at the fittest characters for offices, where my own knowledge does not give a decided preference . . . no one knows my ultimate determination until the moment arrives when the nomination is to be laid be-fore the Senate.__ My resolution, not to create an expectation, which thereafter might embarass my own conduct (by such a commitment to any one as might subject me to the charge of deception) is co-eval with my inauguration; and in no instance have I departed from it.” Thus, less than a week before Washington submitted his first nominations to the Senate, even Vice President John Adams could write “how the President will decide, on the judiciary Appointments I know not.”

Daniel Webster (a lawyer), in an 1849 letter to R.M. Blatchford (another lawyer):

Accuracy and diligence are much more necessary to a lawyer, than great comprehension of mind, or brilliancy of talent. His business is to refine, define, and split hairs, to look into authorities, and compare cases. A man can never gallop over the fields of law on Pegasus, nor fly across them on the wing of ora-tory. If he would stand on terra firma he must descend; if he would be a great lawyer, he must first con-sent to be only a great drudge.

And from political scientists Karen O’Connor and Barbara Palmer, writing in the March/ April 2001 issue of Judicature (pages 263-64; footnotes omitted):

49

On a trip to New York with Senator Daniel Patrick Moynihan (D-N.Y.), [President William J.] Clinton asked Moynihan who was his top choice. “There’s only one name: Ruth Bader Ginsburg,” responded the Senator. Yet Ginsburg’s name never seemed to reach the top with Clinton. Learning of Moynihan’s support, however, Martin Ginsburg quickly sprang into action to mobilize sentiment for the nomination of his wife, D.C. Court of Appeals judge Ruth Bader Ginsburg.

To draw more public attention to his wife’s qualifications, Martin Ginsburg unabashedly orchestrated a letter-writing campaign on behalf of her nomination. Ginsburg, a prominent tax attorney and Georgetown University law professor, contacted his wife’s former students, the presidents of Stanford and Columbia universities, academics, legal scholars, and even Texas Governor Ann W. Richards, urging them to call or write the White House on her behalf. Ultimately, this fairly unprecedented lobbying effort was successful, and Ginsburg was interviewed by Clinton. Her nomination was announced the next day in the White House Rose Garden after Clinton reportedly “fell in love” with her story. Said Martin Ginsburg of his campaign on his wife’s behalf, “If there was something I could have done to be helpful, I would have done it, because I think my wife is super, and the President couldn’t have made a better appointment than the one he just made.”

Breyer, who believed the seat on the Court was his, was dispirited by the Ginsburg nomination but bit his tongue and waited. . . .

50

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

STANDING ORDER RE CIVIL CASES

DISTRICT JUDGE BETH LABSON FREEMAN

A. CONFORMITY TO RULES

Parties and counsel shall comply with the Federal Rules of Civil Procedure, the Civil Local

Rules, the General Orders of the Northern District of California, and this Court’s standing

orders, all of which are available at http://www.cand.uscourts.gov. Failure to comply with

any of these rules or orders may be grounds for monetary sanctions, dismissal, entry of

default judgment, or other appropriate sanctions.

B. COMMUNICATION WITH THE COURT

Parties and counsel shall not communicate ex parte with Judge Freeman or her chambers

staff by telephone, facsimile, or any other means. Parties and counsel may contact Judge

Freeman’s Courtroom Deputy Clerk, Tiffany Salinas-Harwell, at 408-535-5381 or

[email protected] with inquiries regarding scheduling or other

appropriate matters.

C. SCHEDULING

1. Civil Motions

Civil motions are heard by reservation only on Thursdays at 9:00 a.m. Hearing dates

may be reserved by contacting Judge Freeman’s Courtroom Deputy Clerk, Tiffany

Salinas-Harwell, at 408-535-5381 or [email protected].

Once a hearing date is reserved, the motion(s) shall be filed within 14 days thereafter.

51

If no motion has been filed by the 15th day, the reservation will expire and the

moving party must obtain a new reservation before filing the motion(s).

2. Civil Case Management Conferences

Civil Case Management Conferences are heard on Thursdays at 11:00 a.m.

A joint Case Management Statement shall be filed at least 7 days before each Case

Management Conference. The joint Case Management Statement shall comply with

the “Standing Order for All Judges of the Northern District of California – Contents

of Joint Case Management Statement” and Civil Local Rule 16-9.

3. Final Pretrial Conferences

Final Pretrial Conferences are heard on Thursdays at 1:30 p.m.

A joint Pretrial Statement and Order shall be filed at least 14 days before each final

Pretrial Conference in compliance with Judge Freeman’s Standing Order Re Final

Pretrial Conference – Bench Trial or Standing Order Re Final Pretrial Conference –

Jury Trial, whichever is applicable.

4. Trials

Trial is conducted on Mondays, Wednesdays, and Fridays from 9:00 a.m. to 5:00

p.m. and on Tuesdays from 10:00 a.m. to 5:00 p.m.

5. Telephonic Appearances

Telephonic appearances are permitted on a case by case basis. A party seeking to

appear telephonically shall file an administrative motion pursuant to Civil Local Rule

7-11. If the administrative motion is granted, the party shall contact Court Call

Phone Conferencing at (866) 582-6878 in advance of the hearing to schedule the

telephonic appearance. If the scheduled Court date is vacated after arrangements for

a telephonic appearance have been made, the party who made the arrangements is

responsible for informing Court Call that the matter has been taken off calendar.

D. MOTIONS TO SEAL

Motions to seal documents shall be filed in accordance with Civil Local Rule 79-5. In e-

filing cases, all materials supporting a motion to seal, including both the redacted and the

52

unredacted versions of the document as to which sealing is requested, must be filed

electronically as exhibits to the motion to seal. See Civ. L.R. 79-5(d)(1). Instructions for

sealing the exhibit comprising the unredacted version of the document may be found on the

ECF website. In both e-filing cases and non-e-filing cases, a chambers copy of the motion

and all exhibits must be submitted. The unredacted version of the document must indicate

by highlighting which portions of the document have been omitted from the redacted

version; this requirement applies whether the unredacted version of the document is e-filed,

filed manually, or submitted as a chambers copy.

E. SUBSTANTIVE MOTIONS

1. Page Limits (Applicable to Briefing on Motions Filed After May 1, 2015)

a. 25 pages; 25 pages; 15 pages

Absent leave of Court, the page limits for the following types of motions and

proceedings shall be 25 pages for the motion or opening brief, 25 pages for

the opposition or response brief, and 15 pages for the reply brief: motions

brought under Federal Rules of Civil Procedure 12, 23, 56, 59, or 65; motions

brought under California’s anti-SLAPP statute; social security appeals;

bankruptcy appeals; and claim construction briefing.

b. 10 pages; 10 pages; 5 pages

Absent leave of Court, the page limits for all other types of motions and

proceedings, except for those as to which shorter page limits are expressly set

forth in the Court’s Civil Local Rules and Standing Orders, shall be 10 pages

for the motion or opening brief, 10 pages for the opposition or response brief,

and 5 pages for the reply brief.

c. Miscellaneous

These page limits are maximums, not minimums – counsel and parties are

encouraged to be concise. Title pages, tables of contents, indexes of cases,

and exhibits are not included in these page limits.

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2. 12-Point Type

All written text, including footnotes and quotations, shall be no less than 12-point

type. See Civ. L.R. 3-4.

3. Footnotes

Footnotes are to be used sparingly and citations to textual matter shall not be

contained in footnotes.

4. Request for Judicial Notice

A request for judicial notice may be made within the body of a brief or filed as a

document separate from the brief. Exhibits containing documents as to which

judicial notice is requested will not be counted against the requesting party’s page

limits. However, whether the request for judicial notice is incorporated into a brief

or filed separately, written argument in support of the request will be counted against

the page limits for the brief to which it relates. Any response to the request for

judicial notice shall be incorporated into the brief filed by the responding party.

5. Objections to Evidence

Objections to evidence shall comply with the Civil Local Rules, which require that

objections be contained within the objecting party’s brief and that the text of all

briefs be double-spaced. See Civ. L.R. 3-4(c)(2), 7-3(a), (c).

F. MOTIONS FOR SUMMARY JUDGMENT

1. One Motion for Summary Judgment per Party

Unless otherwise ordered by the Court, only 1 motion for summary judgment, partial

summary judgment, or summary adjudication may be filed by each party.

2. Summary Judgment Motions Heard 90 Days Before Trial

Summary judgment motions shall be heard at least 90 days before trial.

3. Separate Statement

Any party moving for summary judgment or opposing a motion for summary

judgment must submit a separate statement as set forth herein.

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a. No Additional Evidence or Argument

The Court will not consider evidence or argument presented in the Separate

Statement that is not also contained in the briefs. The Separate Statement is a

tool to assist the Court to identify and organize the evidence upon which the

briefing relies.

b. Moving Separate Statement

Parties moving for summary judgment must include a separate, short and

concise statement identifying each claim or defense – or the part of each

claim or defense – as to which the moving party contends there is no genuine

issue to be tried (“Moving Separate Statement”). With respect to each such

claim or defense or part thereof, the Moving Separate Statement must:

(1) identify the relevant elements or issues; (2) list the asserted material facts

establishing those elements or issues; and (3) cite to record evidence showing

that the asserted material facts are undisputed (e.g., deposition, declaration,

discovery response). Upon filing, the moving party shall provide the Moving

Separate Statement to all other parties in an electronic, word-processing

format for ease of response thereto. The Moving Separate Statement must

follow this format:

Claim or Defense

Moving Party’s Undisputed Facts and Supporting Evidence

Opposing Party’s Response and

Supporting Evidence Claim 3 Breach of Contract

(1) Plaintiff did not perform under the contract.

Fact 1. Defendant issued a homeowner’s insurance policy to Plaintiff. Jones Decl. ¶¶ 4-5 and Ex. A (policy).

Fact 2. Plaintiff failed to pay her premiums. Jones Decl. ¶ 6.

(2) Defendant did not breach the contract.

Fact 3. The policy expressly excludes coverage for loss

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resulting from theft. Jones Decl. ¶¶ 9-10 and Ex. A (policy).

Punitive Damages

(1) Plaintiff cannot establish that Defendant acted with oppression, fraud, or malice.

Fact 4. Defendant timely investigated Plaintiff’s insurance claim. Jones Decl. ¶¶ 18-20.

c. Responsive Separate Statement

The papers opposing a motion for summary judgment shall include one

Responsive Separate Statement which: (1) incorporates the Moving Separate

Statement; (2) indicates whether each of the facts listed in the Moving

Separate Statement is disputed or undisputed; and (3) identifies any additional

material facts that the party contends will establish a genuine issue to be tried.

If the opposing party contends that a fact is in dispute, the opposing party

must cite to evidence in the record establishing the dispute.

Responsive Separate Statements must follow this format:

Claim or Defense

Moving Party’s Undisputed Facts and Supporting Evidence

Opposing Party’s Response and

Supporting Evidence Claim 3 Breach of Contract

(1) Plaintiff did not perform under the contract.

Fact 1. Defendant issued a homeowner’s insurance policy to Plaintiff. Jones Decl. ¶¶ 4-5 and Ex. A (policy).

Undisputed.

Fact 2. Plaintiff failed to pay her premiums. Jones Decl. ¶ 6.

Disputed. Plaintiff timely paid her premiums. Smith Dep. 22:4-23:19.

Additional Fact: Defendant has failed to record Plaintiff’s timely premium payments on 2

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prior occasions. Smith Dep. 72:8-14

(2) Defendant did not breach the contract.

Fact 3. The policy expressly excludes coverage for loss resulting from theft. Jones Decl. ¶¶ 9-10 and Ex. A (policy).

Disputed. The policy does not exclude coverage for loss resulting from theft. Jones Decl. Ex. A (policy)

Punitive Damages

(1) Plaintiff cannot establish that Defendant acted with oppression, fraud, or malice.

Fact 4. Defendant timely investigated Plaintiff’s insurance claim. Jones Decl. ¶¶ 18-20.

Disputed. Defendant waited more than 4 months before investigating Plaintiff’s claim. Smith Dep. 79:15-80:4

d. Reply Separate Statement

The moving party may file a Reply Separate Statement that incorporates and

responds to the Responsive Separate Statement.

e. Deemed Admitted Unless Controverted

Each numbered fact in the Moving Separate Statement will be deemed to be

admitted for purposes of the motion unless specifically controverted by the

opposing party. The moving party must meet its burden of proof under

Federal Rule of Civil Procedure 56.

f. Page Limits for Separate Statements

Unless a party has obtained prior leave of the Court, the Moving Separate

Statement is limited to no more than 15 pages, and the Responsive Separate

Statement is limited to no more than 5 additional pages beyond the number of

pages in the Moving Separate Statement.

g. Attestation

Each separate statement must be signed by counsel (or a party, if proceeding

pro se) who has reviewed the document and attests as follows:

I attest that the evidence cited herein fairly and accurately supports (or

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disputes) the facts as asserted.

G. PROPOSED ORDERS

All proposed orders in e-filing cases shall be submitted in Word format by email to

[email protected] on the same day the proposed order is e-filed.

H. CHAMBERS COPIES

Civil Local Rule 5-1 requires parties to provide chambers with a paper copy of each

document that is filed electronically. Chambers copies shall be generated from ECF after

electronic filing so that they bear the ECF filing information along the top of the page: case

number, document number, and filing date. Chambers copies must be single-sided (printed

on only one side of the page), must be 2-hole punched at the top, and must be stapled or

fastened with metal prongs. In addition, chambers copies must include numbered bottom

tabs (not side tabs) between exhibits. Each chambers copy shall be marked “Chambers

Copy” and shall be submitted to the Clerk’s Office in an envelope marked with the case

number and with the words “Chambers Copy” and “Judge Beth Labson Freeman.”

I. UNREPRESENTED (PRO SE) PARTIES

Parties representing themselves may wish to contact the Federal Pro Se Program, a free

program that offers limited legal services to pro se litigants. The Federal Pro Se Program

has an office in the San Jose Courthouse in Room 2070 on the 2nd Floor. Parties may be

seen on a drop-in basis or may make appointments by calling the program’s staff attorney,

Mr. Kevin Knestrick, at 408-297-1480. Additional information regarding the Federal Pro Se

Program is available at http://cand.uscourts.gov/helpcentersj.

IT IS SO ORDERED.

Dated: October 21, 2015 __________________________________ BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

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Ross Davies <[email protected]>

Re: Christian Kozlowski Reference follow up1 message

Ross Davies <[email protected]> Wed, May 7, 2014 at 5:23 PMTo:

Just had a very good chat with the IRS about you. Will write more later.

On Wednesday, May 7, 2014, > wrote:

Professor Davies,

Thank you for allowing me to use you as a reference when I applied for the IRS position. Ihad my interview yesterday, and one of the women I spoke with knew you, and spoke veryhighly of you. I also heard from one of my references that she was contacted this morning, soif you have not heard from them yet, then it is likely that you will shortly. Thank you for all ofyour help, and I will be sure to let you know how this works out.

I also saw that you are a board member on the APCA, and I was interested in helping out thissummer, even if I do receive this position at the IRS. The only issue is I am unaware howmany hours per week I will be at the IRS if I do land the position, and I was curious whether Iwould be able to effectively contribute to both positions. If you have any comments orfeedback, I would love to get your opinion.

Best regards,

Christian Kozlowski

JD Candidate 2016

George Mason School of Law

Honor Committee Board Member

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RE: Christian Kozlowski Reference follow up1 message

Wed, May 7, 2014 at 11:57 PMTo: Ross Davies <[email protected]>

Professor Davies,

I hope the chat went well, and I wanted to tell you that I was offered the position earlier thismorning. Now all that is left is filling out the required paperwork, and I should begin on June 2. Thank you for all of your help in not only being a reference, but for your counsel throughout myfirst semester of law school. I still have your checklist of things to do during our summer afterour first year, and I intend to get busy on it after our last exam this Friday. Thank you again, andI hope to speak with you more soon.

All the best,

Christian Kozlowski

JD Candidate 2016



From: Ross Davies <[email protected]>Sent:Wednesday, May 7, 2014 5:23 PMTo:Subject: Re: Chris>an Kozlowski Reference follow up Just had a very good chat with the IRS about you. Will write more later.

On Wednesday, May 7, 2014 >wrote:

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IRS and you1 message

Ross Davies <[email protected]> Wed, Jul 16, 2014 at 2:50 PMTo: >

Mr. Kozlowski

The word I hear is that you are doing an impressively good job at the IRS. I suggest that you ask at least one of yourbosses to be a reference for you when you apply for jobs in the fall or next year.

Best regards,RED

-- Ross Davies

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Re: IRS and you1 message

Ross Davies <[email protected]> Thu, Jul 17, 2014 at 2:10 PMTo: >

Very good!

On Thu, Jul 17, 2014 at 12:11 PM, > wrote:Professor Davies,

Thank you for the kind words about my performance at the IRS. It has been a wonderful experience, both legallyand professionally. I'm planning on asking for at least two letters of recommendation from 2 attorneys I have workedextensively with, and look forward to what these last few weeks bring (where did the summer go?!). I look forward tospeaking with you in the future.

Best regards,Christian

> On Jul 16, 2014, at 2:50 PM, "Ross Davies" <[email protected]> wrote:>> Mr. Kozlowski>> The word I hear is that you are doing an impressively good job at the IRS. I suggest that you ask at least one ofyour bosses to be a reference for you when you apply for jobs in the fall or next year.>> Best regards,> RED>> --> Ross Davies

-- Ross Davies

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Re: Christian Kozlowski Summer Update1 message

Ross Davies <[email protected]> Fri, May 1, 2015 at 3:47 PMTo:

Good afternoon Mr. Kozlowski

Congratulations, that's all great news! You've earned these successes. As I told a classroom not all that long, ability isnot enough, it must be combined with initiative and integrity. You, as you may recall, were my exhibit.

Best regards,RED

On Fri, May 1, 2015 at 2:01 PM, wrote:

Professor Davies,

Hope this exam period is treating you well.

Wanted to update you that I just accepted a law clerk position for this summer & following fallat Dentons. Never thought I would get a foot in the door, but somehow, the stars aligned andit worked out.

I want to thank you for all of the help and guidance you have provided these past fewsemesters. In particular, for helping me out with the IRS last summer. That has vaulted meinto every subsequent position since.

Thanks again for everything, and please let me know if there's anything I can do for you.

Best regards,

Christian Kozlowski

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JD Candidate 2016


Student President, George Mason American Inn of Court


-- Ross E. DaviesProfessor of Law, George Mason University School of LawEditor, The Green Bag

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Snippets What do you make of these morsels? First, why might this email have ended up in my

spam filter? And does anything else about it puzzle you?

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Why does Jerry Smith (a lawyer) want employees who can deal with semicolons, and why did David Lat (a lawyer) comment as he did?

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And, finally, Terry Teachout (an interesting and able writer — look him up if you have a spare moment) wrote this song (to be sung to the tune of “My Favorite Things”) on the spot during a banquet held by a literary society dedicated to the writings of Rex Stout (another interesting and able writer — look him up too if you have another spare moment). It twists together elements of several of Stout’s books. What do you make of what you can see of his method?

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727 Kirkwood Avenue - Atlanta, GA - 30316 404.885.9100 - www.TheRemsenGroup.com

2012 SURVEY OF LAW FIRM ECONOMICS

Executive Summary

ALM Legal Intelligence The National Law Journal In 2012, The Managing Partner Forum worked closely with ALM Legal Intelligence and The National Law Journal to conduct the most comprehensive survey of mid-size US law firms. 196 firms, with nearly 10,000 lawyers, participated. The complete 338-page survey was released on August 6, 2012, and this Executive Summary was distributed shortly thereafter. The complete survey contains invaluable benchmarking data, which is broken down by firm size, practice, geography and a variety of other factors. The survey is available for purchase at www.almlegalintel.com

78

Survey of Law Firm Economics, 2012 Edition Executive Summary

David Brown, Vice President & Executive Editor, The National Law Journal

and Jennifer Tonti, Senior Director of Research, ALM Legal Intelligence Overview

The 2012 Survey of Law Firm Economics survey contains information from

9,970 lawyers including 3,366 associates, 5,775 partners or shareholders (equity

and non-equity), 577 active counsel and 179 staff lawyers working in 198 U.S. law

firms. The financial and operating statistics provided by this survey cover revenue,

expenses, billings, realization, assets, liabilities, billing rates, billable hours, lawyer

compensation, and staffing ratios. Additionally, detailed information is provided by

law firm size, geographic location, practice area specialty, population size,

experience level of lawyers, and lawyer title. In its 40th year, the survey remains

an invaluable tool for managers of law firms.

There are many ways to analyze a law firm’s financial performance—its

results of operations can be compared to the prior year as well as to annual

budget, for one. It is more difficult to compare one firm to another because the

metrics for any two firms are greatly affected by a number of factors. For example,

the financial performance of a 100 lawyer firm cannot easily be compared in a

meaningful way to the aggregate amounts of a 6– or 26-lawyer firm. In order to

benchmark a firm’s performance to other law firms in a meaningful way it is best to

convert each firm’s data into comparable statistics such as firm size or geographic

area. In addition, there are numerous options available for looking at averages on

a per attorney basis, including “per lawyer,” “per equity partner” and “per fee

earner” statistics. Each statistic may be appropriate in certain circumstances, but

in general ALM recommends and references “per lawyer” statistics for most

comparisons. Finally, it is important to select the correct data point for comparison

purposes. For example, top tier firms in the New York marketplace should

probably compare their performance to the Ninth Decile data point rather than the

average of all law firms to facilitate accurate benchmarking.

79

2012 Survey of Law Firm Economics Executive Summary, Page 2

Revenue Recedes, But Partner Pay Rises From The National Law Journal, August 6, 2012 David Brown

Law firms, particularly midsize and smaller players, continued to face a

challenging revenue picture during the last year, our latest survey of firm finances

shows. But they appear to have done a better job of managing expenses to keep

profitability and partner compensation high.

The Survey of Law Firm Economics, a joint project of The National Law

Journal and ALM Legal Intelligence, shows that revenue per lawyer (RPL), a key

indicator of overall firm health, was down on average among the nearly 200 firms

surveyed. In fact, the 4.2 percent decline in RPL was the biggest since we began

tracking the metric in 19851.

Yet firms reacted by chopping the average expense per lawyer by more

than 4 percent. And as a result, equity partner compensation increased by a

healthy 7 percent on average, topping $410,000. Non-equity partners weren't so

lucky. Overall compensation for them dipped by 4 percent — an indication that

firms continued to cut into their salaried

ranks to save money. Not that there are

many other places to cut: The survey shows

that 66 percent of firm expenses come from

salaried lawyers, paralegals and staff.

Firms on the larger end of the scale

took some of the hardest revenue hits. Those with 76 to 150 lawyers saw revenue

per lawyer decline by 10 percent. For firms of 150 lawyers or more, the drop was 9

percent. At the other end of the size spectrum, firms of one to nine lawyers

experienced a sharp 17 percent drop in RPL. But a caveat is in order: Last year,

we didn't include solo practitioners among our smallest firms, and lower averages

for solos may have skewed revenue-per-lawyer results for those firms. (The 1 One caution with year-over-year comparisons: in the latest Survey of Law Firm Economics, the composition of the smallest size category now includes single-person law firms, which historically had not been part of this survey. As such, figures from this year’s survey will be slightly lower than if single-person firms had not been included.

80


survey also slightly adjusted the size ranges for two other groups of firms. Firms

now are ranked in groups of 10 to 24 lawyers and 25 to 40 lawyers—last year, the

equivalent ranges were 9 to 21 lawyers and 21 to 40 lawyers.)

Despite the mixed results, firms still see plenty of sunlight ahead. We asked

a series of questions about how firms view the state of the business of law.

Seventy-six percent of those surveyed said they were optimistic about the year to

come. And with minor variations, the

optimism was shared among firms of

all sizes.

Perhaps that's because firms

expect a surge in litigation-related

revenue this year. A strong plurality of

firms cited litigation as the practice

area that will see the most revenue growth in 2012. Large firms in particular were

bullish about the practice. As we note elsewhere in this report, some 75 percent of

firms with 150 lawyers or more expect litigation growth.

Corporate work is also looking promising, firms said. About a quarter of

firms suggested that they would see the strongest growth in 2012 in their

corporate practices. Given the market uncertainty of late, however, that prediction

may prove overly sanguine. In a sign of a brighter economic picture, firms were far

less likely to say that bankruptcy and restructuring work would grow this year. In

our 2011 survey, 7 percent of respondents said they expected a bankruptcy

bonanza. This year, it was 3 percent.

And while it's clear that alternative fee arrangements are part of the arsenal

for the vast majority of firms (96 percent said 1 percent or more of their billings

came from alternative fees), that doesn't mean firms are fast replacing the billable

hour. Last year, 33 percent of firms said alternative fees represented more than 10

percent of their billings. This year, 34 percent said so. The needle is moving—but

slowly.

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Key Findings in 2012 Jennifer Tonti, ALM Legal Intelligence

Financials

Average receipts per lawyer reported by participating firms totaled

$432,242, representing a decrease of 4% from the prior year. Overhead expenses

also decreased by 4% from the prior year to $161,904 per lawyer which, when

combined with the revenue decrease of 4%, had a net negative effect on law firm

profitability. And as go receipts and expenses, thus follows net income, with a 4%

drop as well. Not surprising, the survey confirms the continuation of a difficult

economic environment.

The following table illustrates the breakout of gross receipts and total

expenses by law firm size. Clearly, as firm size increases, revenue, expenses and

income increase in direct proportion.

Financials: Averages per Lawyer

Firms

Average Gross

Receipts $

Average Total

Expense $

Average Total

Expense %*

Average Firm

Income $

Average Firm

Income %*

Size of Firm

1 to 9 Lawyers 14 532,717 282,378 53.0 250,338 47.0

10 to 24 Lawyers 40 828,913 489,984 59.1 338,929 40.9

25 to 40 Lawyers 41 744,161 393,015 52.8 351,146 47.2

41 to 75 Lawyers 37 859,058 486,466 56.6 372,592 43.4

76 to 150 Lawyers 27 1,020,140 609,176 59.7 410,964 40.3

Over 150 Lawyers 11 1,345,038 821,844 61.1 523,195 38.9

*Percentage of Gross Receipts

The relative magnitude of each individual expense

is clearly apparent from the neighboring graph, which

indicates that staff expense is the largest single overhead

expense item for all categories of law firms, followed by

occupancy expense (excluding the “other” category which

is a catch-all expense comprised of malpractice

insurance premiums and settlements, payments to retired

partners and miscellaneous expenses).

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Billing Rates and Realization

The flow of financial activity in a law firm involves the recording of billable

time (by all law firm timekeepers, including lawyers and paralegals), the

conversion of that asset, “unbilled time,” to accounts receivable via the billing

process, and ultimately the collection of fees when the client pays the invoice, or

“realization.”

As of January 1, 2012, the average hourly billing rate for equity partners or

shareholders was $355. The average rate for associates was significantly lower, at

$232 per hour. When looking at billing rates by gender, male equity partners bill

more than female equity partners by about $14 ($342 vs. $356). Non-equity

partners and associate billing rates are generally on par for both male and female

attorneys.

Billing rates increase in direct proportion to experience practicing law, as

the following chart illustrates:

And the same principle applies to hourly rates by firm size (as firm size

increases, so does billing rate). Rates are also very contingent on geographic area

as well; the median billing rate for an equity partner in Omaha, Nebraska ($300)

will not be the same rate for an equity partner in a New York Metro-area firm

($400), for example.

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According to the 2012 report, it takes the average law firm 2.2 months to

realize accounts receivable. The billing and collecting process of every law firm is

fundamental to the firm’s financial success. One measure of a law firm’s efficiency

in this regard is the balance of unbilled time—or work-in-progress—the firm carries

at any point in time. The larger the balance of unbilled time, as computed on a per

lawyer basis, the less efficient the firm is in billing its clients. That is, the firm takes

longer to prepare its billings to clients, slowing down cash flow. The following table

provides selected unbilled time statistics from the survey about various categories

of firms.

Value of Unbilled Time at Year End (Non-Contingent Fee Matters), Average per Lawyer

Firms Average $

Lower Quartile

$

Median $

Upper Quartile

$

Ninth Decile

$

Size of Firm

1 to 9 Lawyers 9 23,883 -- -- -- --

10 to 24 Lawyers 34 45,986 22,322 37,731 66,803 86,290

25 to 40 Lawyers 36 59,117 29,503 46,384 60,029 86,945

41 to 75 Lawyers 35 53,370 42,893 54,674 62,438 78,809

76 to 150 Lawyers 27 64,840 43,986 54,671 72,983 85,099

Over 150 Lawyers 11 67,650 -- 57,182 -- --

*Missing data indicates not enough respondents to analyze in that cell

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The average amount of unbilled time for non-contingent fee matters per

lawyer for all participating law firms is $54,404, and the average for all size law

firms fluctuates in a narrow range between $46,000 and $68,000. The small law

firm category (firms with between 1 to 9 lawyers) should be treated separately

from the other size firms in the group, as the value of their unbilled time is

significantly lower than the other categories. This may be attributable to small firms

managing their unbilled time more effectively than larger law firms, a function of

the size of overall receipts the firms realize, or it may be an aberration since only

nine law firms are included in this category.

Another means of measuring the efficiency and effectiveness of a law firm’s

revenue generating policies, systems and procedures entails the firm’s realization

statistic, which can be measured both in terms of billing and collecting. The table

below provides information on these measures for law firms of varying size

categories:

Average Realization Data (Standard Rates) Firms

Billing Realization

%

Collection Realization

%

Overall Realization

%

Size of Firm

1 to 9 Lawyers 1 -- -- --

10 to 24 Lawyers 17 99.9 95.9 95.8

25 to 40 Lawyers 28 91.0 95.4 86.9

41 to 75 Lawyers 27 92.4 97.2 89.8

76 to 150 Lawyers 15 87.4 95.6 83.5

150 Lawyers or more 7 87.0 97.2 84.6

*Missing data indicates not enough respondents to analyze in that cell

All size firms are generally about the same in terms of converting their

unbilled time into client billings and then such billings into receipts. Firms in the 10

to 24 lawyer category are slightly more effective across all facets of realization,

and it is interesting to note that the higher billing realization statistics reported by

these firms is consistent with the notably lower balance of unbilled time reported in

the prior graph. That is, small firms apparently billed as many clients as possible at

the end of the year, which reduced their investment in unbilled time and increased

their billing realization statistics. Conversely, law firms with over 150 lawyers

carried a higher investment in unbilled time and were not as effective in converting

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that value into billings. Some portion of the larger balance of unbilled time

maintained by these large law firms relates to the fact that they typically charge

higher billing rates to their clients. Even if they carried the same number of billable

hours as the smaller law firms they would report higher balances of unbilled time

solely because of this rate differential. This rate differential at least partially

explains the higher balance of unbilled time carried by larger law firms but it does

not explain the lower billing realization reported by these firms.

Billable Hours and Alternative Fee Arrangements

The average partner (non-equity and equity alike) worked 1,642 billable

hours. Associates recorded about 150 more billable hours (1,794) per annum. As

with billing rates, there is a significant difference between the numbers of hours

worked by lawyers in different size firms and types of markets as defined by the

size of an area’s population. Specifically, partners and associates in a

“metropolitan division” (i.e., within a city’s core area) tend to work more hours than

do those located in a “metropolitan” area (in essence, an area within the

boundaries of a major city but outside the core city itself) and significantly more

than those in a “micropolitan”, or rural area.

Though still the primary indicator of a firm’s gross receipts, the billable hour

has started to make way for approaches to billing that are not based on traditional

hourly rates. Historically, firms had always talked about alternative fee

arrangements, but until recently very little action followed. Then, with the economic

collapse of 2008, corporations needed to cut expenses and nothing was left off the

table, including outside legal costs. Alternative fee arrangements (or AFAs)

obtained a new urgency2, and firms have responded.

For the past two editions of the Survey of Law Firm Economics, we asked

firms a few questions about AFAs, including to what degree the firms use them,

and how the AFA volume has changed over the past year.

2 For more information, please refer to ALM Legal Intelligence & Lexis CounselLink’s 2012 report, “Speaking Different Languages: Alternative Fee Arrangements for Law Firms and Legal Departments.”

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In general, just about all firms are turning to variations on the billable hour

(not including discounting). Some of the most popular methods are flat fees,

blended rates and capped fees. And although the billable hour still drives the boat,

the pervasiveness of AFAs is growing: between 2010 and 2011, almost one

quarter of respondent firms reported an increase in AFA billing.

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Compensation

In 2011, the average equity partner/shareholder earned $409,624. The

following table provides an overview of national data, although with more detail

than just the averages for various classifications of lawyers. Where data was

provided, we show the breakout of male and female attorneys at each lawyer

status level and the differential between compensation for either group.

Total Compensation by Lawyer Status and Gender Number

of Offices

TOTAL COMPENSATION Number

of Lawyers

Average $

Lower Quartile

$ Median

$

Upper Quartile

$

Ninth Decile

$

Female

Equity Partner/Shareholder 189 601 369,639 203,370 283,456 420,519 664,127

Non-Equity Partner 126 362 222,578 162,892 200,000 260,434 349,235

Associate/Staff Lawyer 207 774 137,861 111,822 132,625 158,496 188,626

Male

Equity Partner/Shareholder 295 2,647 399,876 241,771 337,990 469,704 665,068

Non-Equity Partner 205 860 232,664 172,546 212,177 267,886 344,950

Associate/Staff Lawyer 228 1,152 142,646 113,203 137,786 166,400 195,429

As with billing rates and hours, compensation levels will differ when looking

deeper at size of firm, geographic area, metropolitan region and years of service.

Staffing and Personnel Ratios

The expense analysis referred to earlier in the Executive Summary

highlights the fact that the largest single overhead expense for law firms relates to

people costs. Accordingly, a law firm should strive to keep its ratio of support staff

to lawyers as low as possible while ensuring that all client work gets performed on

a timely basis and in a quality manner. The ratio of all administrative and

secretarial support staff to lawyers is a comprehensive statistic that allows a firm to

measure its operational efficiency. This statistic hovered around a 1.1 ratio for

many years, but during the past five or six years this statistic has shown a modest

but steady decline to the point where the ratio is now below 1 for many categories

of firms. This has undoubtedly helped boost the profit level of those firms since

small reductions in this ratio can have a significant impact on a firm’s profitability.

88


Leverage Ratios Over Time

In 2012, per 100 partners, firms are averaging:

• 83 support staff • 54 associates • 43 legal secretaries • 21 paralegals • 20 administrative/clerical staff

And this downward trend appears to be continuing. When asked about how

firms have staffed over the past year, the majority said that increases happened at

positions with billable hour requirements (particularly at the partner level), and less

so with non-attorney staff:

Percent Change in Staffing Levels, 2010 to 2011 Firms %

Partners

Increase 74 37.9%

Decrease 37 19.0%

No Change 84 43.1%

Associates

Increase 72 37.1%

Decrease 69 35.6%

No Change 53 27.3%

Non-Attorneys

Increase 56 29.0%

Decrease 71 36.8%

No Change 66 34.2%

89


Biggest Concerns in the Year Ahead

As part of the Outlook questions we have charted for the past two editions,

firms were asked about what issues were topmost in mind as they entered into the

first few months of 2012. With no surprise, most firms chose issues that centered

on positive indicators of firm health, such as obtaining additional clients and

maintaining profitability.

General firm growth is third in priority, and can indicate either financial

growth, acquiring clients or expanding staff, which firms can realize via a few key

means, one of which is merging with other firms. Thus, a follow up question was

asked regarding whether firms intend embark on a merger the next 5 years.

Although the majority said no, 30-50% said that they were open to the possibility,

and just under 10% were actively seeking merger partners. When looking at

responses by firm size, it appears that midlevel firms are more likely to be open to

mergers than their larger or smaller brethren.

We hope this summary is informative, but please note that it is only a

fraction of the breadth of information and data points available in the Survey of

Law Firm Economics. To inquire about purchasing a copy of this year’s or previous

year’s editions, please call ALM Legal Intelligence at (888) 770-5647 or visit us

online at www.almlegalintel.com.

90

Snippets You might be entertained and enlightened (or at least provoked to think about what it takes to set up

and then run a firm) by a little excerpt from an excellent and entertaining British detective novel, Smallbone Deceased (1950). It’s by Michael Gilbert, who was for many years a lawyer practicing in London. The passage you are about to read describes a conversation between Hoffman (a forensic accountant) and Hazlerigg (a police officer). Hazlerigg is investigating the death of a man whose body was found crammed into an archive box at a law firm. Several lawyers and staff members at the firm are suspects. As part of the investigation, Hoffman — who is both smart about numbers and wise about people, though not blessed with a very cheery personality — has been looking into the finances of the law firm. And now he is reporting to Hazlerigg . . .

“Well, now, Mr. Hoffman,” said Hazlerigg. “I

understand that you’ve finished the first part of your work and can give me a general report on the financial position.”

“An interim report,” said Mr. Hoffman. “Then, if you consider that any particular aspect of it wants detailed analysis —”

“Let’s start with the general picture, if you don’t mind.”

Thereupon Mr. Hoffman spoke for an hour, with very little interruption from Hazlerigg. He had a sheaf of notes but he did not refer to them much. It was in his head.

He spoke of capital assets and of invisible assets, of fixed assets and floating assets; of goodwill and the professional index; of the solicitor-client relation-ship; of the ratio of incomings to outgoings; of over-all balance; and of the law of diminishing returns. And every point which he established was nailed to the table with figures — pounds and shillings, and years and months, and percentages and fractions.

When he had done, Hazlerigg said: “Thank you very much.” Then he said: “I take it you will be letting me have the gist of that Capital Appreciation in writ-ing.” Mr. Hoffman nodded. “Absolutely off the rec-ord and without prejudice, what does it add up to?”

Mr. Hoffman considered the question. Then he parcelled his papers neatly back into his brief-case, screwed on the top of his fountain pen, replaced his pen in his inside pocket (where it lived with three coloured propelling pencils) and leaned back in his chair with a relaxed smile; a parting of the lips which, in a man less austere, might almost have been called a grin.

“I always think,” he said, “that starting a business is very like lighting the drawing-room fire. First,

you stack up the sticks and paper and coal in the grate, and then, at the favourable moment, you ap-ply your match. There’s an immediate and beautiful blaze. The paper burns away and the sticks crackle and you put on more and more coal — that’s your working capital — and you get precious little real heat by way of return. Then, in every fire, and in every business, there comes a moment when you know if the thing is going to go or not; and if the fuel is dry and if the draught is right, and if you’ve laid the thing properly, you’ll get a decent fire. If anything’s wrong, then you can prod it and puff it and pile on fuel till you’re black in the face. You’ll get nothing but smoke, stink and a hearth full of charred paper. But once the thing’s alight there’s nothing more to it. The office boy can keep it going. He’s only got to drop an occasional lump of coal on. Incidentally that’s one of the things people don’t think of when they moan about the boss sitting back and taking the profits whilst they do all the work. Anyone can look after a fire when it’s alight.”

“Agreed,” said Hazlerigg. “What then?” “That’s all obvious, isn’t it,” said Mr. Hoffman.

“Anyone who thinks about it can see it. But what people don’t always realize is that it works the oth-er way round as well. A good fire, you know, will go on burning and glowing and giving out heat for a long time after you’ve stopped putting on any fuel. And if you put on a little from time to time — not enough to replace what’s being burnt, but a lump or two — well, it’ll go on burning for a very long time. That, as nearly as I can explain it, is what was happening in Horniman, Birley and Craine in about 1939 and 1940. I don’t think anyone could have spotted it from outside — but the fuel supply was giving out. . . .”

91

And what do you make of this decision by the firm now known as JonesDay? It is from Albert Borowitz’s history of the firm, Jones, Day, Reavis & Pogue: The First Century (1993).

92

From: XXXXXXXXXXXXXXXXXX Sent: Sunday, December 13, 2015 6:53 PMTo: Jacob, Gregory F.Cc: Boyle, BrianSubject: Re: New stable value complaint against XXXXXXXXX Greg--thisisthefirsti'veheardofthis.(IguessGarre6wasmissingme).Thanksmany>mesoverforsending

it.AtleastI'llbeabletogetoutinfrontofthemedia.

WilldefinitelyconsiderOMMforthis.

XXXXX

From:Jacob,GregoryF.<[email protected]>

Sent:Sunday,December13,20154:44PM

To:XXXXXXXXXXXXCc:Boyle,BrianSubject:NewstablevaluecomplaintagainstXXXXXXX

XXXXXXX,

Well, nothing says holiday cheer like a complaint filed by my old law school classmate, Garrett Wotkyns(attached). As you are likely aware, the complaint attacks XXXX's management of the XXXX ManagedIncome Portfolio, a stable value fund, alleging that beginning in 2009 XXXX adopted an imprudentlyconservative investment strategy for the fund, charged excessive management fees, and “allowed” the providersof the fund’s wrap contracts to charge excessive fees. We weren’t sure whether XXXX would be interested inreceiving proposals for defense of the matter from firms outside of Boston. If you are, Brian and I would bevery pleased to submit a detailed proposal. We offer a few preliminary thoughts below. · If, as the complaint suggests, an affiliate of XXXX is the investment manager for the fund, that role

would carry fiduciary obligations. A big part of the complaint, however, targets allegedly excessiveinvestment management charges, and on that issue plaintiffs have failed to allege facts establishing thatXXXX or its affiliates had a fiduciary role. Instead, the plan sponsors/fiduciaries that selected thisproduct for their investment lineups would have exclusive fiduciary responsibility, presuming (as thecomplaint does not negate) that the fees were known to them at the time of the fund’s selection. Thisfiduciary status problem should also provide a good defense to at least part of plaintiffs’ performance

93

claim, to whatever extent the performance deficit alleged by plaintiffs is attributable to the allegedlyexcessive management fee.

· The one fee issue that might potentially be pursued as a fiduciary breach claim is the allegedoverpayment of the wrap providers. On that point, however, we do not see any facts set out in thecomplaint suggesting that wrap fees of 21-25 bps are unreasonable, or above the market range. Indeed,the complaint’s allegation that the financial crisis exposed wrap providers to significant losses impliesthe contrary -- that following the crisis, wrap providers began to require this level of compensation inlight of the level of risk they assume under the contracts.

· As for the core mismanagement claim, the complaint alleges that there was a change in investmentstrategy in a more conservative direction beginning around 2009. Our preliminary take is that the bestapproach to this claim is to see what the investment mandate actually provides (or provided during thefull six year period of repose), and to argue that plaintiffs’ complaint about a poor risk-return tradeoff isreally just a complaint about the mandate the sponsors knowingly accepted when they selected thisproduct. This would substantially aid in shifting fiduciary responsibility for any investment returnshortfall back to the sponsor fiduciaries. We think we would have a good chance of getting the districtcourt to consider as incorporated into the complaint any investment mandate documents that wereavailable to sponsor fiduciaries at the time of the fund’s selection.

· Plaintiffs criticize as misleading the alleged use of a “money market benchmark” for the fund (theiMoneyNet First Tier Institutional Money Market Funds Average) beginning in 2012. If the mandateand benchmark did indeed change more than 3 years ago, we may have a 3 year actual knowledgelimitations argument. Relatedly, we think we can make some hay of the fact that plaintiffs label the useof a money market benchmark “misleading,” when the facts alleged in the complaint suggest that itactually accurately telegraphed the fund’s change to a more conservative investment strategy andcommensurate expected returns.

We know XXXXXX may already be spoken for here, but please do let us know if XXXXXXX would beinterested in receiving a detailed proposal for the defense of the case. If so, we would be very interested inreceiving the investment mandate documents referenced above for purposes of sharpening our analysis. I hope that, aside from having this complaint dropped in your lap, all is well up in Boston. Greg

Gregory F. JacobO'Melveny & Myers LLP1625 Eye Street, NWWashington, DC 20006Office (202) 383-5110Fax (202) [email protected]

This message and any attached documents contain information from the law firm of O'Melveny & Myers LLP that may be confidential and/or privileged. If you are not the intended

recipient, you may not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then

delete this message.94

Claims/Legal Theories in Ellis

•  The complaint seeks to represent a nationwide class of defined contribution plans that invested in MIP within the 6-year period before the complaint’s filing.

•  Single ERISA count for fiduciary breach alleges: –  Excessive management fees. –  Unreasonable compensation to wrap providers. –  Unduly conservative investment strategy (short duration,

excessive Treasuries) which created inferior returns.

96

Related Cases •  Austin v. Union Bond & Trust Co. (D. Oregon): Some of same

plaintiffs’ lawyers sued Principal, as well as stable value fund trustee and investment manager, for allegedly exercising control over compensation through abrupt discretionary adjustments in crediting rates.

–  After Principal established that crediting rates were controlled by non-discretionary formula, plaintiffs amended to allege new theory that crediting rates were suppressed by unduly conservative investment strategy.

–  Summary judgment motion is pending. •  Whitley v. JPMC (S.D.N.Y.): Some of same plaintiffs’ lawyers sued

Chase for alleged mismanagement of various stable value portfolios during financial crisis years.

–  Following a series of amendments, plaintiffs’ complaint now targets excessive risk-taking in stable value portfolios—the polar opposite of the allegations they make against FMTC.

–  Class certification motion is pending.

97

Motion to Dismiss: Management Fees

•  No fiduciary status as to management fees –  Plaintiffs allege XXXXX charged “excessively high fees for

management of the MIP….” (Compl. ¶ 72) –  Plaintiffs fail to plead facts establishing that XXXX set its

management fees in a fiduciary capacity. •  As a service provider, XXXXX set the fees for its services in a non-

fiduciary capacity, as part of its product offering. •  The plan fiduciaries that selected the MIP as an investment option, not

XXxxX, bore fiduciary responsibility for assessing the reasonableness of the associated management fees.

•  The Fund fact sheets, which are incorporated into the complaint by reference (Compl. ¶ 56), show XXXXX disclosed its management fee to plan fiduciaries, which remained 55 bps throughout the class period.

–  Any investment losses attributable to the management fee accordingly cannot be sought through this complaint.

98

Motion to Dismiss: Limitations •  Plaintiffs’ claims are barred by the six-year statute of repose

–  Plaintiffs allege XXXXX’s 2006 investments resulted in 2008 investment losses that caused the fund to “suffer damage in 2009 and continuing for years afterwards.” Associated losses during the limitations period are attributable to decisions and events that are more than six years old, and claims for those losses are barred.

•  Plaintiffs’ claims are barred by the three-year statute of limitations

–  The iMoneyNet benchmark was consistently used throughout the class period. Plaintiffs’ claim that the benchmark is inappropriate is barred, as plaintiffs have actually known of its use for more than three years.

–  Management fees were constant at 55 bps, and actually known for more than three years. Plaintiffs do not allege that market-level fees decreased during the last three years.

99

Post-Pleading Strategy

•  Early Summary Judgment Motion: Fees –  No disputed issue of fact with respect to reasonableness of wrap

fees. •  Hypothesis that XXXXX was overpaying wrap providers to compensate them for

losses on prior guarantees is far-fetched. •  Market experts can confirm what XXXXX’s own witnesses would likely say

concerning shrinkage of wrap capacity post-financial crisis, increase in wrap fees, and tightening of wrap providers’ underwriting standards.

–  No disputed issue of fact with respect to issues bearing on management fees.

•  Fiduciary responsibility for management fees rests with the plan fiduciaries, not with XXXXX.

•  Availability of lower expense class beginning in 2013 may confirm recordkeeping offset for Class I.

•  Net of implicit recordkeeping offset (and perhaps gross of that offset as well), fees for management of the MIP portfolio can be placed within market range.

100

Challenges to Class Certification: Investment Strategy •  To evaluate the merits of XXXXX’s portfolio

management, the Court will need to consider multiple factors: –  XXXXX’s investment strategy. –  Relationship of the investment strategy to the

availability and terms of wrap coverage. –  Surrounding market conditions, including the

expected interest rate environment.

101

Challenges to Class Certification: Other Claims and Theories •  Changes in the MIP’s wrap fees and in the market for wrap

contracts creates individualized issues for plaintiffs’ claim that XXXXX allowed wrap providers to pay excessive fees, depending on when individual plans entered and exited the fund.

•  Plaintiffs’ contention that XXXXX employed a misleading benchmark creates issues concerning what individual plan sponsor fiduciaries were told and understood about the benchmark and the fund’s investment strategy.

102

From: Jacob, Gregory F. Sent: Monday, December 21, 2015 5:49 PMTo: Hunt, ChristopherCc: Barrett, Shannon; Boyle, Brian; VerGow, MeaghanSubject: FW: Merry Christmas -- you're hired!Chris--Atributetoyourgoodworkthisweekend.Manythanks!From: Boyle, Brian Sent: Monday, December 21, 2015 5:40 PMTo: XXXXXXXXXXXXXXCc: Jacob, Gregory F.; Hacker, Jonathan; VerGow, Meaghan; Hemani, AbbySubject: Re: Merry Christmas -- you're hired!Outstanding!Thankssomuchforturningtous--it'sagreathonor,andwecan'twaittodigin.Let'skillthisquickly!

SentfrommyiPhone

OnDec21,2015,at5:03PM,XXXXXXXXXXXXX>wrote:

ThatwasaterrificpresentaOontoday.And,ofcourse,yourOmingwasoutstanding–wehaveallbeensohappywiththefloatbrief!Givemeacallinthemorningtodiscussnextsteps.WeneedtogetuptoNewHampshiretomeetwiththePM’sinthefirstweekofJanuaryifatallpossible,soI’dliketodiscussschedulingonthat.InaddiOon,XXXXXXXXXXXhasahugeamountofbackgroundontheeventsleadinguptothiscase,andwe’llwanttospendsomeOmewithhim.Andyou’llneedtoreachouttoouradversariestodiscussextensionofOmetoanswer.AsfarasI’mconcerned,thenext2weeksshouldn’tevencount–theyhavenobusinesssuingusrightbeforetheholidays.We’reallreallylookingforwardtoworkingwithyou.Youmadethedecisionreallyeasy.Best,XXXXX

103

XXXXXXXXXX

Senior Vice President &

Deputy General Counsel

104

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

))

IN RE: STERICYCLE, INC., ) Case No. 13 C 5795STERISAFE CONTRACT LITIGATION ) MDL No. 2455

))

MEMORANDUM ORDER

This Court has been designated by the Panel on Multidistrict

Litigation to preside over this MDL proceeding. As the first

substantive step in that proceeding, the appointment of interim

class counsel to represent the putative plaintiff class is called

for. This memorandum order is issued to confirm this Court’s

choice of one from among the four well-qualified applicants for

that appointment: in alphabetical order, Audet & Partners, LLP

(linked with other firms), Gordon & Rees, LLP, Grant & Eisenhofer

P.A. (linked with other firms) and Hagens Berman Sobol Shapiro

LLP.

As indicated in the preceding paragraph, two of the four

applicants have tendered proposals in which the law firms named

in that paragraph would share the load with other firms, while

each of Gordon & Rees and Hagens Berman proposes to take on and

discharge the responsibility within the resources of its own

firm. On September 18, in the course of an extended in court

proceeding--a proceeding that culminated in this Court’s ordering

the applicant firms to supplement their earlier submissions by

September 23 (as all four applicants have done since)--this

105

Court’s oral articulation of its own views had expressed a strong

preference for the single firm model, so long as that firm

possessed the essential ingredients of high quality lawyering,

extensive experience, a track record of significant successes, a

lawyer complement adequate to the task--and the list of necessary

ingredients could go on.1

This Court is of course well aware that Section 10.22 of the

Federal Judicial Center’s 2004 Manual for Complex Litigation:

Fourth (“Manual”) looks to a different pattern, with the form

suggested in Manual §40.21.2 providing for the designation of

lead counsel, liaison counsel and a Plaintiffs’ Steering

Committee. But with all due respect, that multilayered format is

not one that fosters efficiency--instead it tends to promote a

duplication of effort via conferencing, as well as overlapping

work assignments and other inefficiencies too often attendant on

such a structure. And that of course inevitably tends to

increase the lodestar figure without any corresponding increase

This should not at all be mistaken as a negative1

reflection on the quality of the two applicants that have soughtto join with other firms. Although this Court has had nopersonal experience with any of the law firms sought to be yokedin the submission on behalf of the “Brucker Plaintiffs” (firmswhose curriculum vitae are quite impressive), it has in the pastdealt with Adam Levitt, the lead in-court presenter of theproposal on behalf of the “Midgley Plaintiffs,” and attorneyLevitt and his law firm have acquitted themselves most admirablyin earlier litigation over which this Court presided. In sum,what the decision has come down to is a choice from among fourwell-qualified applicants (as this order has already said in itsfirst paragraph).

2

106

in meaningful lawyer output.2

In any event, the choice between the two firms that do

propose to act on a self-contained basis has been a difficult

one. Each of them has impressive credentials to satisfy each of

the factors identified in Fed. R. Civ. P. (“Rule”) 23(g)(1)(A):3

(i) the work counsel has done in identifying orinvestigating potential claims in the action;

(ii) counsel’s experience in handling classactions, other complex litigation, and the types ofclaims asserted in the action;

(iii) counsel’s knowledge of the applicable law;and

(iv) the resources that counsel will commit torepresenting the class.

And of course 23(g)(1)(B) understandably goes on to provide that

the court “may consider any other matter pertinent to counsel’s

ability to fairly and adequately represent the interests of the

class.”

Both law firm finalists have tendered thorough and

It is recognized that others may have different views,2

but it was not this Court that coined the aphorism that “A camelis a horse designed by a committee.” What has been said in thetext reflects a sense forged during this Court’s many years inthe practice of law (including class action participation on bothsides of the “v.” sign) and more years of evaluating applicationsfor fee awards in class actions (a task that too often reveals anexcess of lawyers seeking to share the wealth).

Although those criteria reflect what a court “must3

consider” in the ultimate appointment of class counsel, theyobviously have equal force in the designation of interim classcounsel.

3

107

informative submissions as to each of the four criteria set out

in Rule 23(g)(1)(A). Although this Court has vetted those

presentations with equal thoroughness in reaching its decision,

it sees no useful purpose to be served in detailing them here.

Instead what follows will pick and choose some highlights simply

to illustrate both candidates’ first-rate credentials for

potential appointment.

As for the first criterion, the Gordon & Rees team devoted

nearly a year (since October 2012) to the investigation of

Stericycle’s assertedly questionable activities in California, an

investigation that began after a Stericycle customer had come to

the law firm complaining about the fees and charges the customer

had been paying. As for Hagens Berman, it hit the ground running

because counsel for a Stericycle insider (a former government

specialist for that company)--having earlier filed a 2008 qui tam

complaint under the False Claims Act--came to Hagens Berman to

ask it to bring what ultimately became the Lyndon Veterinary

Clinic action before this Court (13 C 2499). Because of its

access to that whistleblower’s perspective and the sharing of

information with her qui tam counsel, Hagens Berman’s Complaint

provided more information than any other as to Stericycle’s

methodology and organizational structure. And Hagens Berman has

since engaged in more active pursuit of the prosecution of the

putative class’ claims than Gordon & Rees (or the other two

4

108

candidates and their associated firms as well).

In terms of the second criterion under Rule 23(g)(1)(B),

both competing firms (and especially their lead litigators) have

sterling credentials. Gordon & Rees’ Miles Clancy has a wealth

of trial experience (incidentally including the defense as well

as the prosecution of class actions). But it must be said that

the track record of Hagens Berman and its lead partner Steve

Berman is even more impressive, having racked up such

accomplishments as a $1.6 billion settlement in the Toyota

Unintended Acceleration Litigation and a substantial number of4

really outstanding big-ticket results.

It may be worth mentioning that to this Court’s recollection

it has had no first-hand judicial experience with either of the

two finalist firms--and it has been on the bench far too long to

have had litigation contact with either or their respective lead

partners while it was in the active practice of law. But that is

not true of its colleagues in this District of more recent

vintage, an email inquiry to whom brought in return some high5

praise of attorney Berman’s skills.

In that respect District Judges James Selna went out of4

his way, at the windup of the case, in describing the settlementas truly extraordinary--indeed unique--in terms of the benefitsconferred on the plaintiff class.

Under the Code of Conduct for United States Judges,5

judge-to-judge communications are not of course subject to thelimitations applicable to other ex parte communications.

5

109

Little need be said as to the third factor mentioned in the

Rule (“counsel’s knowledge of the applicable law”), for lawyers

of the quality demonstrated by the curriculum vitae that each of

the two firms has supplied unquestionably have the tickets to

bring their broad legal knowledge to bear on any particularized

problems that may be posed by the current litigation. That is

certainly true as to issues regarding class actions as such

(knowledge that counsel already have in abundance), and there is

no reason to believe that it will not also prove true as to

whatever substantive issues the current litigation will pose.

Lastly, each firm has pledged itself to commit all required

resources to the litigation. This Court’s only initial pause in

reaching what had otherwise appeared to be a clear choice of

Hagens Berman stemmed from the Gordon & Rees emphasis on that6

firm’s much larger size and, more specifically, its Chicago

presence (numbering 26 lawyers, in contrast to the Hagens Berman

three-lawyer office here). But Hagens Berman’s supplemental

submission of September 23 has graphically demonstrated the

That choice was not made in terms of the primus inter6

pares (“first among equals”) phrase often used to describe, forexample, the relationship between the Chief Judge of a Districtor Circuit Court and his or her colleagues. Instead, obviouslywith no offense intended, such a choice really echoes GeorgeOrwell’s classic line from Animal Farm:

Some animals are more equal than others.

6

110

fallacy inherent in simply looking at those numbers.7

For one thing, Elizabeth Fagan (the managing partner of

Hagens Berman’s Chicago office) has outstanding credentials on

her own, and the Hagens Berman September 23 supplement confirms

the strength of support provided by the others in the Chicago

office as well. But even more importantly in overall terms, that

September 23 response (emphasis in original) more than

convincingly refutes any claimed significance of the sheer

numerical comparison:

According to Gordon & Rees’ website, just 3 of the 26lawyers in its Chicago office have class actionexperience, in comparison to the three lawyers inHagens Berman’s Chicago office who are devotedexclusively to prosecuting large scale class actions. Moreover, according to the website, 49 lawyers atGordon & Rees nationwide reflect that they have classaction experience in comparison to the 53 lawyers atHagens Berman whose primary focus is prosecuting classactions. Accordingly, Hagens Berman’s class actiondedication for plaintiffs--and demonstratedresults--overshadows Gordon & Rees’ traditional defensefirm size.

Conclusion

In sum, this Court is pleased to designate the Hagens Berman

firm as the interim lead counsel, and it looks forward to that

This Court does not of course question the good faith of7

Gordon & Rees in advancing a numerical contrast as part of itsown sales pitch. But again in terms of the raw numbers ratherthan Gordon & Rees’ bona fides in advancing them, this Court hasbeen put in mind of Mark Twain’s quotation, in his Autobiography, of a statement attributed to Disraeli:

There are three kinds of lies: lies, damned lies andstatistics.

7

111

firm’s prompt pursuit of the matter in the manner outlined in its

submissions. With that appointment having taken place, this

Court next poses a question to the Hagens Berman people.

As part of the firm’s original application for appointment

as interim lead class counsel, Appendix A to that application set

out a proposed case schedule. But that proposed schedule

specified its successive steps in terms of time frames such as

“Within -- days of appointment of Lead Class Counsel,” and it is

not clear from that designation whether the stated timetable was

intended to speak in relation to the current interim designation

rather than to the final appointment of class counsel.

Accordingly this Court orders a submission from the Hagens Berman

firm, on or before the scheduled October 17 status hearing,

expressly framed as a timetable in terms of the present posture

of the litigation.

One final item. As part of the supplemental submissions

requested by this Court on September 18, all of which were timely

responded to by the designated September 23 date, counsel were

asked to submit in camera their respective views on an

appropriate fee structure. This Court’s views on that subject

have always conformed to our Court of Appeals concept “that

attorneys’ fees in class actions should approximate the market

rate that prevails between willing buyers and willing sellers of

legal services” (Silverman v. Motorola Solutions, Inc., Nos. 12-

8

112

2339 and 12-2354, 2013 WL 4082893, at *1 (7th Cir. Aug. 14),

citing to In re Continental Ill. Sec. Litig., 962 F.2d 566, 572

(7th Cir. 1992) and In re Synthroid Mktg. Litig., 264 F.3d 712,

718 (7th Cir. 2001) and 325 F.3d 974, 975 (7th Cir 2003)). And

this Court has always agreed with the Synthroid cases that

establishing fee schedules ex ante represents the preferred path

to take.8

But because interim counsel do not invariably become the

ultimate class counsel (even though that is most frequently the

case), this opinion will not disclose the proposed terms that

have been submitted in camera by Hagens Berman. Instead any

announcement of the ex ante determination as to fees will await

the occasion of the ultimate choice of lead class counsel.

Milton I. ShadurSenior United States District Judge

Date: October 11, 2013

Indeed, that premise seems to this Court to support a8

procedure of inviting bidding up front--not in terms of an“auction,” an unfortunate and inaccurate label that connotescompetition based on price alone, but rather a procedure thatalso takes into account an evaluation of the quality of classrepresentation (much as this opinion has done). In fact, inthese days, when the old notion of long-term fixed relationshipsbetween clients and law firms has been overtaken by marketconcepts (the so-called “beauty contest” is an example of that),private litigants frequently make their selections of counsel inmuch the same manner that this Court has employed in what arepejoratively and misleadingly characterized as “auctions.”

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Kathleen M. Fennell, CSR, RMR, FCRROfficial Court Reporter

219 South Dearborn Street, Room 2524AChicago, Illinois 60604

(312) 435-5569Kathleen [email protected]

1

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE:

VINCENT PAUL SCHMELTZ, anAttorney,

Respondent.

))))))

Case No. 15 MC 583

Chicago, IllinoisNovember 24, 201510:38 a.m.

TRANSCRIPT OF PROCEEDINGSBEFORE THE HONORABLE CHIEF JUDGE RUBÉN CASTILLO

APPEARANCES:

For the Respondent: MR. WILLIAM F. CONLONMR. KARIM BASARIASidley Austin LLPOne South Dearborn StreetChicago, IL 60603

(312) 853-7384E-mail: [email protected]

[email protected]

Also present: MS. KAROLINE E. JACKSONBarnes & Thornburg, LLP11 South Meridian StreetIndianapolis, IN 46204

(317) 231-7492E-mail: [email protected]

MR. WILLIAM M. McERLEANMR. BRUCE WHITEBarnes & Thornburg, LLPOne North Wacker DriveSuite 4400Chicago, IL 60606

(312)214-8820E-mail: [email protected]

[email protected]

Case: 1:15-mc-00583 Document #: 8-1 Filed: 12/04/15 Page 2 of 13 PageID #:42

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(Proceedings heard in open court:)

THE CLERK: 15 MC 583, In re: Vincent P. Schmeltz.

THE COURT: Good morning, Mr. Conlon.

MR. CONLON: Good morning, your Honor, appearing on

behalf of Mr. Schmeltz, and with me is --

MR. BASARIA: Good morning, your Honor. Karim

Basaria on behalf of Mr. Schmeltz.

THE COURT: Okay. Good morning.

MR. SCHMELTZ: Good morning.

MR. CONLON: Your Honor, this is Mr. Schmeltz next to

me.

THE COURT: Good morning, Mr. Schmeltz.

I did read the response to the rule to show cause.

It seems like most of the rule to show cause is admitted. Am

I reading it wrong?

MR. CONLON: You're reading it exactly precisely,

your Honor.

THE COURT: Okay.

MR. CONLON: If your Honor would permit me, I'd like

to --

THE COURT: Sure.

MR. CONLON: -- have a few comments, and then when

I'm --

THE COURT: Absolutely.

MR. CONLON: -- done, if you would allow Mr. Schmeltz


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to say a few things --

THE COURT: Okay.

MR. CONLON: -- and answer any questions that your

Honor might have.

THE COURT: Okay.

MR. CONLON: Your Honor is absolutely correct. We

read the rule to show cause. We saw the allegations, and

they're admitted. It is embarrassing to Mr. Schmeltz. It is

something for which he is still trying to grapple with how it

happened, and he'll -- I'll leave that to him to explain to

you, your Honor.

If I could take just a few moments. I met

Mr. Schmeltz a few years ago when we had a matter together

with a lot of other firms, and over the years, I've known him

to be a respected, talented, principled, ethical lawyer. I

think this is a lapse, Judge, that he will explain to you and

looks forward to explaining to you. He's been trying to

explain it to himself.

As I said, when I first met him about this matter, I

met a fellow who was chastened, embarrassed and apologetic

about it, apologetic to the Court, apologetic to the legal

community, to the profession, to his family, to his firm. I

think his colleagues at Barnes & Thornburg, your Honor, who

are here, would say the same thing about him. Kary Jackson,

who is the general counsel of Barnes & Thornburg, is at


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counsel table, came from Indianapolis. Bill McErlean is the

head of the litigation department of which Mr. Schmeltz works

would say the same thing about him. Bruce White is here, as

is Mr. Schmeltz's wife, who is a lawyer herself and is

scratching her head about how this happened and the lapse that

caused this to happen.

Mr. Schmeltz told me, your Honor, that one of the

hardest things he's had to do in his life was explain to his

oldest boy his mistake, his lapse, and I don't quite know how

to describe it, your Honor. I tried for an analogy and

analogies always come up short.

Something happened that caused him to get kind of

fogged in, where he -- the rules, the sign he walked by, I

think he paid no attention to; but in the moment, I think the

rules became absolutely obscure to him, and I think he will

tell you about that.

Your Honor is correct. We filed our response, and

we've admitted that. Mr. Schmeltz has been a lawyer since

1997. He's been a proud member of the bar of this court since

2000, a member of the trial bar, and he has, your Honor, never

been sanctioned by a court.

I should also add that the Tweets that are at issue

here, as soon as was brought to his attention by the Marshals

Service that he had violated a rule, they were immediately

taken down. He has never been disciplined by a bar


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association, and he's never had a report to a bar association

filed against him until now, and that is because he

self-reported to the Illinois Attorney Registration and

Disciplinary Commission a week or ten days ago.

He also self-reported, your Honor, to the

disciplinary commission of the District of Columbia bar where

he is also a member.

He, in addition to self-reporting, he wrote a letter

of personal apology to Judge Leinenweber. He apologized in

writing to all of his colleagues. He was initially served in

November, your Honor, with a Notice of Violation by the United

States Marshals Service. I had some conversations with folks

in the U.S. Attorney's Office trying to figure out exactly the

appropriate way to respond to that. I was given the

procedures, and Mr. Schmeltz last week admitted his

responsibility there, paid a fine and also paid court costs.

That was completed, as I say, last week.

He has taken, your Honor, full responsibility. His

firm has distributed an alert to all lawyers, all personnel,

rather, in the firm talking about the importance of honoring

and complying with court rules as a supplement to their

electronic processing. He is, Judge, in short, and I say this

recognizing the severity of a violation of the rules of this

Court, he is a good person. He's a dedicated, principled,

ethical lawyer, father, husband and family man. It's a lesson


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well learned. It's a lesson, your Honor, that will cause

Mr. Schmeltz, I'm confident, to never, ever appear before this

Court or another court in these circumstances again.

Your Honor, may I yield the podium to Mr. Schmeltz --

THE COURT: Sure.

MR. CONLON: -- so he can say a few words and then

answer any questions you have?

THE COURT: Okay.

MR. CONLON: Thank you.

MR. SCHMELTZ: Your Honor, for the past 15 years,

it's been one of the greatest privileges of my career to be a

member of this bar. I deeply regret my actions in Judge

Leinenweber's courtroom. I have no excuse. If I could go

back in time, your Honor, I would do things very differently.

I can only offer a sincere apology to this Court.

As Mr. Conlon has said, I've offered my apology to

Judge Leinenweber and to my firm. Your Honor, there's no

excuse for my conduct. I would like to very briefly recount

the events of that day to give you context.

I was there that day because the Coscia case is a

case of first impression. It's one that is very relevant to

my law practice, which involves securities and commodities

fraud. I had been working with a number of clients to gain

clarity in that law, and I was very interested in what the

algorithm programmer had to say, particularly in a case like


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that which was going to come down ultimately to a question of

intent. What the program was designed to do and why was very

important.

THE COURT: So were you paid to be there?

MR. SCHMELTZ: I was not paid to be there that day,

your Honor.

THE COURT: Okay. So you were there on your own time

because of a general interest.

MR. SCHMELTZ: Yes, your Honor. And to be quite

candid, I -- in a case like that, where little things in the

evidence matter so much, I just got overly excited about the

evidence. I thought, you know, this is the stuff people need

to see. This is the stuff that makes a difference as people

want to understand this. I began --

THE COURT: So what is the purpose -- one question I

have -- what is the purpose of these Tweets?

MR. SCHMELTZ: Simply to give context. If you

envision traders who cancel trades all the time for any number

of reasons are asking now what are the guidelines? When can I

cancel prior to execution? I wanted to give context to -- to

the situation. I wanted to give people an understanding of

what was happening.

I was very struck, and in my practice it's not the

norm, to see a prosecution witness who has that much empathy

for the defense, and that struck me as well. So context, and


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then as the evidence came in, I thought really no more, your

Honor, than here is evidence that's available to everyone in

the courtroom and I captured it.

THE COURT: But is the ultimate purpose of these type

of Tweets to generate more business for yourself? Isn't that

the ultimate purpose?

MR. SCHMELTZ: I haven't ever found Twitter to

generate business. I haven't ever found LinkedIn to generate

business. I think that my Twitter -- my Twitter feed, I

actually started with a trader, a commodity trader, who's a

client of mine, and I have a number of commodity traders who

follow it.

My sense was here's a targeted way to get information

to a larger demographic of people, and that was my --

THE COURT: But wouldn't there be a commercial

purpose to that? Are you saying it's just out of the goodness

of your heart you're covering this?

MR. SCHMELTZ: At the end of the day, certainly, your

Honor, there is experience and expertise to be gained by

observing a trial of this nature with very well qualified

professionals on all sides. My goal was to capture and convey

critical evidence to people.

THE COURT: But isn't the ultimate goal, sir -- just

so I understand it -- to generate business? Because, look,

Mr. Schmeltz, I've never met you. What's your hourly rate?


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MR. SCHMELTZ: 650 an hour.

THE COURT: Okay. So you could be in your office

generating 650 an hour and, instead, you're covering a federal

trial, putting stuff on the Internet, and it would seem to me

that the ultimate hopeful result of that is that some of these

traders would see that you were on top of a novel prosecution

and would then call you with any legal concerns they might

have about their own trading activities.

Isn't that the ultimate outcome? Or are you saying

that is not the ultimate outcome, and you're just here out of

the goodness of your heart because you are curious?

MR. SCHMELTZ: Your Honor, I don't think that is an

ultimate outcome of a 140-character Tweet.

I was not here out of the goodness of my heart. I

was here to learn. I was here to get an understanding and

experience and to see how this works.

Certainly the learning and the experience and an

understanding of the evidence I hope will benefit me and my

clients in the future.

THE COURT: Okay. But one thing that you are saying,

in no uncertain terms, is that as a member of this bar, which

you say you have a great deal of respect and value for, that

you never were aware of the fact that there was a local rule

that prohibited that type of behavior? That's basically the

implication of what you're saying.


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MR. SCHMELTZ: Your Honor, my thought process that

day was myopically focused on the evidence. I am certainly

aware of the rules and conversant with them. I absolutely

failed in the moment to bring to mind all the rules that bore

upon my conduct in the moment.

THE COURT: Okay.

MR. SCHMELTZ: And I -- that ultimately is --

THE COURT: But you are saying you were aware of the

rules before, but in that moment, you had a lapse.

MR. SCHMELTZ: Your Honor, it was an absolute lapse

in judgment in the moment on my part. It was not a deliberate

disregard of the rules, and I can assure you in this building

and in everything I've done as a lawyer, I attempt to keep it

between the lines and to be straight down the middle, and I

erred here and I am heartsick about it, and it is not how I

practice and it is not ever going to happen again.

THE COURT: Okay. Let me just say so that you

understand how this will play out. I don't subjectively come

up with discipline for any member of our bar. Instead what I

do is issue a rule to show cause on behalf of our Court's

Executive Committee, hear what the response is, give you a

full opportunity to make a record.

And then what I will do is take it back to the

Executive Committee of this Court for a final determination

that is not an individual judgment by the Chief Judge or


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any one member of this Court. So if there is anything else

you want to say for me to take back to the Executive

Committee, I'm more than happy to do that.

The next meeting of the Executive Committee happens

to be on December 8th, at which point there could be a final

outcome to this matter, but until then, I don't want this to

be hanging -- I understand you're a busy trial attorney --

like a sword of Damocles over you. It is not the intent.

Instead, the intent is to proceed in a fair fashion and also

to proceed in a collective fashion, as opposed to an

individual fashion. So that's what I intend to do.

So if there's anything else, Mr. Schmeltz, you want

to say, now is the time to do that.

MR. SCHMELTZ: Your Honor, I think that I am where I

am in life because of my intellectual curiosity and my

exuberance. In this instance, both of them got the better of

me, and I don't have anything further to add except, again,

I'm just -- I'm very, very, very sorry to this Court. I have

a great deal of respect for the Court here and the rules, and

I just offer my deep apologies.

THE COURT: Okay. One other thing that I'm going to

offer you and your counsel is I understand that your position

is one of admission and contrition, but if there's anything

else you want to yourself affirmatively propose as a potential

sanction, you're free to file that on or before December 4th.


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That's the Friday following the -- this Friday. So you're

free to do that, so I just keep the record open until then.

Thank you.

MR. SCHMELTZ: Thank you.

THE COURT: Thank you for being here.

(Which were all the proceedings heard.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/Kathleen M. Fennell November 30, 2015

Kathleen M. Fennell DateOfficial Court Reporter


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Pigford v. Johanns 421 F.Supp.2d 130 (D.D.C. 2006)

(excerpt, with footnotes omitted and formatting modified)

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge. This matter comes before the Court on the motion of New Communities, Inc. for extraordinary

relief. The movant argues that the circumstances surrounding the arbitration of its claim brought under the Consent Decree necessitate the setting aside of the arbitrator’s decision. The movant asks this Court to vacate the hearing conducted by the arbitrator and set aside the findings of the arbitra-tor and instead to enter its own judgment in movant’s favor. In the alternative, movant asks the Court to order a new hearing conducted by an arbitrator assigned by the Court and agreed upon by the plaintiff.

I. BACKGROUND

Movant New Communities, Inc. (“New Communities”) filed a Track B claim as permitted un-der the terms of the Consent Decree in 2000. As provided for in Paragraph 10 of the Consent De-cree, an evidentiary hearing on the movant’s claim was held before an arbitrator on July 30, 2002.1 The arbitrator assigned to this hearing was Linda Singer. On October 8, 2002, the arbitrator issued a decision in favor of the USDA. New Communities sought monitor review of the arbitrator’s deci-sion, pursuant to Paragraph 12(b)(iii) of the Consent Decree on February 3, 2003.

In December 2004, subsequent to the hearing before and decision by the arbitrator, all of the parties, including the defendant, learned for the first time that the attorney acting as counsel for defendant in the arbitration-Margaret O’Shea-was alleged in news reports to have lied to her em-ployers, including the government, about her bar status. See Notice of Allegations of Department of Justice/Attorney Misconduct [Docket No. 1073]; Motion on Behalf of the Class Seeking an In-quiry into the Track A and Track B Cases Handled by Margaret O’Shea [Docket No. 1075]; Emer-gency Motion for Hearing [Docket No. 1076]; Emergency Motion for Hearing [Docket No. 1080]; Defendant’s Response to (1) Notice of Allegations of Department of Justice/Attorney Misconduct; (2) Motion on Behalf of the Class Seeking Inquiry into Track A and Track B Cases Handled by Mar-garet O’Shea; and (3) Motion and Amended Motion for Status Conference or Hearing [Docket No. 1082]; Plaintiff’s Reply to Defendant’s Opposition to Motion on Behalf of the Class Seeking an In-quiry into the Track A and Track B Cases Handled by Margaret O’Shea [Docket No. 1091]. At that time, Ms. O’Shea was no longer an employee of the defendant.

Within three weeks of this matter being brought to the Court’s attention, class counsel con-firmed with the Arbitrator that Ms. O’Shea had worked on five of the arbitrated claims, four as counsel for the government in arbitration hearings, as the government reported. Plaintiff’s Reply to Defendant’s Opposition to Motion on Behalf of the Class Seeking an Inquiry into the Track A and Track B Cases Handled by Margaret O’Shea at 2. Apparently satisfied that the issue of Ms. O’Shea’s bar status had no broader implications for the class, class counsel left the matter to individual claim-ants and their attorneys to address as they saw fit, stating:

Based upon the report we received from the defendant, we believe the interests of the five individual claimants (all of whom are class members) affected by Ms. O’Shea’s work are currently being protected because we have (1) notified their individual attorneys of the defendant’s report, and (2) inquired of the Arbitrator of any other involvement of

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Ms. O’Shea in this case, finding the answer in the negative. Should circumstances change, we will immediately inform the Court through an appropriate motion.

Id. Since the time that this matter was brought to the Court’s attention, only New Communities has raised any further complaints with this Court regarding Ms. O’Shea.

II. DISCUSSION

New Communities moves for this Court to set aside the arbitrator’s October 8, 2002 decision and find for the movant, or, in the alternative, to order a new hearing to be conducted by an arbi-trator assigned by the Court. In support of its motion, the movant cites the following: (1) Ms. O’Shea’s status as an unlicensed practitioner of law who may have deceived the government in that respect and the attendant “taint” it threw on the entire process, including the possibility that she could have destroyed evidence; (2) Ms. O’Shea’s insistence that a court reporter talk privately with her during the hearing and her alleged comment to the court reporter during the July 30, 2002 hearing that “I pay your salary”; (3) speculation that Ms. O’Shea’s comment to the court reporter could have had a negative impact on the arbitrator, Linda Singer, and the credibility of her decision on the claim; (4) the alleged change in demeanor of a witness who testified in the hearing after she spoke to Ms. O’Shea during a break in the hearing. The Court must deny the motion for the rea-sons discussed below.

The movant does not cite any the authority in law or in the negotiated Consent Decree that would justify granting the relief requested-that is, that the Court render a judgment for the movant or order a new hearing. First, with the agreement of the parties to the class action, this Court has delegated completely the authority to make final decisions on individual claims in this case to the Arbitrator and the Adjudicator. Consent Decree ¶¶ 9(a)(v), 10(i). Second, the parties agreed in the Consent Decree that “except as provided by ¶ 12(b)(iii) [of the Consent Decree]” class members with claims under Track B had “forever waive[d] their right to seek review in any court or before any tribunal of the decision of the arbitrator with respect to any claim that is, or could have been decided, by the arbitrator.” Consent Decree ¶ 10(i). Paragraph 12(b)(iii) provides the mechanism by which the movant could, and has, petitioned for Monitor review of an arbitrator’s decision. Even were the Court inclined to do so, it could not render judgment for the movant or order a new hearing without running afoul of the express terms of the Consent Decree which governs this case. The Court has no authority under the Decree or under any relevant statute or case law to overturn the carefully crafted process that has been put in place by the Consent Decree.

The facts surrounding Ms. O’Shea’s case are unfortunate and disturbing. A misrepresentation of this sort is, of course, unacceptable and unethical. Class counsel should and appropriately did take note of this serious incident. The fact remains, however, that there exists no evidence other than Ms. O’Shea’s misrepresentation concerning her bar status that she acted unethically during mo-vant’s hearing or in the course of handling movant’s claim, or that movant was in any way preju-diced by her conduct. The totality of the movant’s actual evidence of the asserted unethical behav-ior (other than Ms. O’Shea’s misrepresentation about her bar status) are (1) a single statement that, while rude, is not significant and not directed at a party to the case, and (2) a reported change in demeanor by one of movant’s own witnesses who has not, apparently, provided movant with any information to support the allegation that Ms. O’Shea had any effect on her testimony. Further-more, movant has provided no support for its charge that Ms. O’Shea destroyed evidence. These charges hardly undermine the integrity of either this particular arbitration or the entire process un-der which this case has operated over the course of the seven years since the Consent Decree was entered and under which over dozens of claims have been decided.

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The Court turns now to the particular allegation that Ms. O’Shea’s alleged statement to the court reporter within the hearing of the arbitrator assigned to movant’s claim could somehow have had an impact on arbitrator Linda Singer’s decision in this case. Movant states that the statement “I pay your salary” could have influenced the arbitrator because “the government also pays the salary of the Arbitrator,” going on to say that “[w]e do not intend to impugn the integrity of the Arbitra-tor, but it is possible that unbiased weight was given to Ms. O’Shea’s representations and argu-ments.” Mot. ¶ 6. The Court finds this assertion to be pure speculation and baseless; the suggestion that Ms. Singer could have been so influenced lacks credence.

First, the alleged statement in and of itself was not directed at Ms. Singer, but at the court re-porter. Second, counsel for the movant reported Ms. O’Shea’s statement to Arbitrator Michael Lewis, who assured her that he did not believe that the assigned arbitrator was affected by the statement. Third, and most importantly, the inference that Ms. O’Shea had any power over the arbitrator’s “salary” is strained, if not absurd, and would hardly have been of concern to an experi-enced arbitrator like Ms. Singer. The defendant USDA bears the cost of the Arbitrator’s fees and expenses pursuant to the Consent Decree, as it bears the costs and expenses of all of the neutrals assigned to implement the Consent Decree. . . . If movant’s argument is to be credited, then not only the Arbitrator (and his designated arbitrators), but class counsel themselves would be com-promised by the fact of these payments. That simply is not the case.

The USDA bears all of these costs as part of the negotiated settlement reached years ago by class counsel. Payment of these costs obviously is a huge benefit to the class, and Ms. O’Shea, as an indi-vidual government “attorney” (one among many) assigned to this case, would have had no authority or influence over the payment of these costs-as an arbitrator as intelligent, experienced and sophis-ticated as Ms. Singer surely understood. The Court has never been given any reason to believe that the USDA’s payment of fees and costs associated with implementing the Consent Decree has ever had an impact on the objectivity of the persons designated by the Court as neutrals or the vigorous-ness with which class counsel and other attorneys have represented their clients. . . .

* * * *

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People v. Zherka 25 Misc.3d 1210(A) (City Court, Mount Vernon, N.Y. 2009)

(excerpt, with footnotes omitted and formatting modified)

Opinion

ADAM SEIDEN, J. A bench trial was held in this proceeding charging the defendant with two counts of disorderly

conduct in violation of Penal Law sections 240.20(2) and (3). A person is guilty of disorderly conduct under the sections charged when “with intent to cause

public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

“2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture (P.L. 240.20).”

The violation information charges, that on October 31, 2008, between 11:00 am and 11:30 am at 1 Roosevelt Square, otherwise known as the City Hall of Mount Vernon, the defendant, with intent to cause public annoyance or inconvenience, or recklessly creating a risk thereof, “did refuse to leave the public hallway of 1 Roosevelt Square while yelling at your deponent [P.O. Morris], I pay your fucking salary. You shouldn’t be a fucking cop.’ When your deponent continued to ask the defendant to leave the area, the defendant persisted in yelling at your deponent, I am not leav-ing until I speak to the Mayor and the Commissioner.’ “ The information further charges that “the defendant’s actions caused a group of 4–5 people to gather in the area. Your deponent continued to ask the defendant to calm down and to leave the area, to which the defendant refused while contin-uing to make unreasonable noise in the public hallway.”

Findings of Fact:

On October 31, 2008, the Comptroller’s Office of the City of Mount Vernon held an auction on foreclosed properties inside the Mount Vernon City Council Chamber on the second floor of Mount Vernon City Hall. At the trial, Thomas Rijala, 1st Deputy Comptroller, testified that the auction was scheduled to start at 11:00 am, however, it started at 11:10 am because the doors were not opened on time. Forty-three people pre-registered for the auction, including the defendant. The bidders received paddles as they entered the auction. Mr. Rijala testified that the late arrival of bidders continuously disrupted and halted the bidding process because the bidders had to pick up their paddles as they entered. Accordingly, Mr. Rijala asked that the doors of the auction be closed to avoid further disruption. He testified that the auction ended at 11:45 am.

Susie Valentin, 2nd Deputy Comptroller, similarly testified that the late arrival of bidders was continuously disrupting the auction. Ms. Valentin testified that she advised the two police officers at the doors, Officers Vincent Pasqua and Bahiyah Morris, to close the doors and not to let anyone else in. According to Ms. Valentin’s written statement, she advised the officers to close the doors at 11:40 am, however, on cross-examination, she explained that the time listed on her statement was a guess. Both Mr. Rijala and Ms. Valentin testified that they heard no screaming, yelling or obsceni-ties from outside the auction doors, while they were working inside the auction.

Police Officer Bahiyah Morris testified that on October 31, 2008, she was working the 8:00 am to 4:00 pm shift on routine patrol. At 11:02 am, she was told to respond to the City Council chamber to relieve Police Officer Pasqua and keep “the order and peace”. Shortly thereafter, Ms.

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Valentin emerged from inside the auction and advised both officers not to allow any other people inside. Officer Pasqua then left and proceeded downstairs after which an identified man approached Officer Morris and asked to enter the chamber. Officer Morris advised the man that they were not letting anyone else in and the man left. Shortly thereafter, the defendant, accompanied by two oth-er men, Peter Bruni and Rob DeBenedictis, approached and asked to get in. Officer Morris testified that she told the defendant that he could not enter the auction and that “he got loud”, “irate”, and started yelling profanities, in particular stating to Officer Morris, “I pay your fucking salary”, “You shouldn’t be a cop”, and “You don’t deserve to be a fucking cop.” Officer Morris stated that a group of people walked up while the defendant was yelling then stopped and watched. Included in the group were three people, Yolanda Robinson, the Mayor’s Chief of Staff, John Boykin, and another individual. Officer Morris testified that in spite of her repeated warnings to the defendant to calm down and stop yelling, he continued to carry on in the same fashion. Officer Morris radioed for backup. Police Officer Pasqua responded and they both escorted the defendant downstairs. Police Officer Morris spoke with her sergeant, Glenn Scott, outside City Hall. She further testified that she observed the defendant speaking with Police Commissioner Chong.

Officer Pasqua also testified at the trial. He stated that he was standing in front of the City Council chamber at around 11:15 to 11:20 am when Ms. Valentin emerged from the auction and advised them not to allow anyone else inside. Officer Pasqua went back downstairs to his normal post. Shortly thereafter, after hearing an officer in need of assistance call on the radio, he went back upstairs. From forty feet away, he observed the defendant yelling and shouting at Officer Morris. There, he also observed a crowd of ten to fifteen people outside of the chamber doors. In that crowd were Rudy Persaud from the Department of Public Works and Ms. Robinson. Officer Pasqua testified he saw Mr. Boykin with his arm around the defendant and that they were both walking towards the stairwell. Officer Pasqua then assisted Officer Morris in escorting the defend-ant out of the building. The officer further testified that he heard the defendant call Officer Morris a “fucking bitch” and that “he would have her job”. Commissioner Chong arrived at City Hall and Officer Pasqua returned to the Council chambers.

Rudy Persaud, a Public Works Supervisor for the City, testified as well. He stated that between 11:20 and 11:30 am he accompanied Yolanda Robinson upstairs to the City Council chamber to get car keys from Mr. Boykin. When he arrived at the top of the stairs, he heard the “single voice” of a male engaged in a “loud argument”. As he proceeded to walk to the chamber doors, he observed a female officer and the defendant. He then observed two to three people emerge from the cham-bers, including Mr. Boykin. Mr. Persaud testified that the defendant was talking “very loud” while demanding that he be allowed to enter the City Council chamber. Mr. Persaud stated the Ms. Rob-inson interceded in the conversation between the officer and the defendant, identified herself as the Chief of Staff and asked the defendant if she could help him. Mr. Persaud testified that the defend-ant did not respond to Ms. Robinson as he was still engaged in an argument with the officer, wherein he heard the defendant state “I pay your damn salary. I pay your boss’ salary. I got to get in there.” Mr. Persaud described the situation as “uncomfortable” and opinioned that the “females were being taken advantage of”. Mr. Persaud testified that he observed people emerge from adja-cent offices, including the planning department. Mr. Persaud retrieved the keys from Mr. Boykin and left City Hall.

Yolanda Robinson, the Chief of Staff of the City of Mount Vernon, testified on the date in ques-tion, she was walking upstairs to go into the public auction. As she arrived on the second floor, she observed a commotion near council chambers, encompassing four to five people. Ms. Robinson saw and heard the defendant, not previously known to her, talking loud as a crowd of ten or more people began to gather. As she got closer, she heard the defendant stating to Officer Morris “You’re

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not fit to wear the uniform. I pay your salary.” Ms. Robinson approached the defendant and identi-fied herself but the defendant ignored her. Mr. Boykin then emerged from the auction. Mr. Boykin attempted to try to calm the defendant down during the “tirade” with Officer Morris. Ms. Robin-son then informed Officer Morris to “call for backup”, telling her “You don’t have to take this”. Ms. Robinson stated that she was alarmed for staff and members of the public that were in City Hall, who gathered and ultimately descended to the first floor of City Hall as the defendant was escorted out of the building by Officer Morris and another officer. Ms. Robinson saw Commissioner Chong outside, where she informed him of what had just occurred. . . .

Conclusions of Law:

Based upon the credible testimony, the court finds that the defendant’s guilt on both of the charges of disorderly conduct (under CPL 240.20(2) and (3)) was established beyond a reasonable doubt (People v. Todaro, 26 N.Y.2d 325 (1970)).

The aim of the disorderly conduct statute is for situations that are carried beyond the concern of individual disputants to a point where they become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny . . . . The statute does not require proof of the accomplished fact of public inconvenience, annoyance or alarm but only proof from which the “risk of it, recklessly created, might be inferred” . . . . Under Penal Law § 15.05, “A person acts reck-lessly ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of a nature and degree that dis-regard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” A defendant’s intent may be inferred from “the natural and neces-sary and probable consequences” of his actions . . . .

After assessing the credibility of each witness presented, the Court finds that the evidence demonstrated that the defendant recklessly created a risk of public inconvenience, annoyance or alarm, when in a public building, during normal working hours, directly outside the doors where a public auction was being held, in the presence of approximately 5 to 10 members of the public and/or personnel of Mount Vernon City Hall, he made unreasonable noise by loudly cursing and yelling at a police officer and used abusive and obscene language towards the police officer who was attempting to maintain peace and order outside of a public auction. The term “unreasonable noise” means a noise of a type or volume that a reasonable person, under the circumstances would not tolerate’” (Provost v. City of Newburgh, C.A.2 (N.Y.), 262 F.3d 146 (2001) (citing People v. Bakolas, 59 N.Y.2d 51 (1983)). After being told that the auction was closed by Police Officer Mor-ris, defendant became loud and disruptive, causing visitors and/or personnel of the planning de-partment to leave that office and stop and watch the commotion in the hallway. Larry Fair credibly testified that the noise could be heard from inside the auction room. The defendant refused to stop talking loud and yelling despite being told to calm down and lower his voice several times. Defend-ant’s own witness, Mr. Bruni testified that the defendant was talking in a “loud and clear” voice and that he advised the defendant he should go outside and “cool off”. Defendant, by his own testimony acknowledged that he is loud and passionate and that he repeatedly told Officer Morris that she worked for him and should quit if she did not like her job. Further, during trial, witnesses credibly testified that they heard the defendant state, “You shouldn’t be a fucking cop”, “I pay your fucking salary” and refer to Police Officer Morris as a “fucking bitch”. The Court finds that the defendant’s use of such obscene language, while standing 5–6 feet from Officer Morris with a crowd assem-

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bled, was publicly abusive, demeaning and had no legitimate purpose (People v. Brown, 116 A.D.2d 727 (2d Dept. 1986) (“What the fuck is your problem, you can’t do shit” directed at officer in public location with onlookers constituted abusive and obscene language within meaning of dis-orderly conduct statute). Accordingly, the Court finds that the defendant, by his actions, recklessly engaged in conduct which caused a public inconvenience, annoyance or alarm.

Based upon the circumstances present here, the Court finds the defendant guilty on both counts of disorderly conduct.

* * * *

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Stockett v. Tolin 791 F.Supp. 1536 (S.D. Fla. 1992)

(excerpt, with footnotes omitted and formatting modified):

ORDER

MARCUS, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action was brought by the Plaintiff, Michelle Ann Stockett, against her former employers, Frank Tolin (“Tolin”) and three closely-held Florida corporations, Limelite Studios, Inc. (“Limelite Studios”), Directors Production Company (“DPC”) and Limelite Video, Inc. (“Limelite Video”), which Plaintiff claims Tolin controls. Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for hostile work environment, quid pro quo sexual harassment, and constructive discharge, a wage-and-hour claim under the Federal Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., and several pendent common law torts including battery, invasion of privacy, intentional infliction of emotional distress, and false imprisonment. Plaintiff’s claim of misrepresentation was voluntarily dismissed. Stockett seeks declaratory and injunctive re-lief and compensatory and punitive damages. The parties agreed to the trial of the common-law tort actions before the Court without a jury, and therefore the Plaintiff’s entire case was tried be-fore the Court. This Court has reviewed at length the voluminous testimony and documentary evi-dence received at trial, and has taken argument from counsel, and pursuant to Fed.R.Civ.P. 52(a) makes the following Findings of Fact and Conclusions of Law:

I. FINDINGS OF FACT

1. This is an action for relief under Title VII of the Civil Rights Act of 1964 for sexual harass-ment and constructive discharge, for relief under the Fair Labor Standards Act for violation of wage and hour laws, and for damages for pendent state law tort claims.

2. On February 5, 1988, Plaintiff, Michelle Ann Stockett, (herein “Stockett”), filed a Charge of Discrimination with the Dade County Fair Housing and Employment Opportunity Commission. The EEOC issued Stockett a Notice of Right to Sue, dated May 25, 1988.

3. Plaintiff is a 29 year-old woman, who was employed by the Defendants from December 30, 1985, through on or about April 22, 1987. On December 30, 1985, Plaintiff was accepted for an internship program sponsored by Florida State University, where students are given on-the-job training in the film industry. She worked for a short time as a receptionist before beginning her in-ternship on January 6, 1986. The internship ran through March 28, 1986. After the conclusion of the internship program, Plaintiff remained employed by Defendant corporations until she resigned late in April 1987.

4. Each of the corporate defendants, Limelite Studios, Limelite Video, and DPC is or was a closely-held Florida corporation with its principal place of business at 7355 N.W. 41st Street, Mi-ami, Florida. Limelite Studios, which rents out stages, was incorporated in late 1982. Limelite Vid-eo, which is involved in the business of post-production work and off-line editing including graphic special effects such as clay animation, was incorporated on October 8, 1985. Both are active corpo-rations. DPC, which was incorporated January 27, 1986 and produced video and film pieces, stopped doing business in the summer of 1986 and was involuntarily dissolved in October 1989.

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5. Defendant Frank Tolin is a 71–year old man, who at all times relevant to this lawsuit owned most of the stock in the Defendant corporations and dominated the organization and operation of the Defendant companies. At all material times, he owned approximately 95% of the 7,125 issued shares of Video stock; Ron Fenster owned the remaining 5% of Video stock. Tolin owned all of the issued shares of stock in Limelite Studios. He owned 50% of the stock of DPC. The remaining 50% of DPC’s stock was owned by Ron Fenster. Tolin and Fenster were directors of Video. Initially, Ron Fenster was President of the corporation, Tolin was Vice President and Secretary and Wanda Rayle was Treasurer. Tolin and Fenster continued to hold corporate office throughout 1986 and 1987. At all material times, Tolin was a director of Limelite Studios and was its president. In 1985, other corporate officers included Tolin’s wife, Beatrice, and daughter, Lynn. In 1986 and 1987, Studio’s other corporate officers were Wanda Rayle and Tolin’s son, Henry S. Tolin. Tolin and Fenster were directors of DPC and Tolin was an officer when the corporation was active. Fenster was President of DPC until February 1986 when he resigned and was replaced by Carol Ennace. Tolin was the financial and moving force behind the entire operation. The credible evidence estab-lishes that Rayle was Tolin’s second-in-command. . . .

(2) Toward the end of the shoot, the demon scene for which Nicole Fortier previously had audi-tioned, was shot. Fortier was cast in the part of the demon. Again, the set was closed. Saffire wit-nessed a loud argument between Tolin and Doug Bruce, the first assistant director, about Tolin’s being on the set. Bruce insisted that Tolin leave and Tolin refused, telling Bruce that it was his set, his money and his film. After a few moments, Tolin approached Fortier and said, “I understand that you don’t want me here,” to which Fortier responded, “I’m very nervous, I don’t want anyone here.” At that point, Tolin said, “Do you understand that I pay your salary?” and asked Fortier, whose husband was on the set, to go out with him that night. Fortier said no. Bruce asked Tolin to leave again. Tolin refused again. Tolin fired Bruce. Bruce and Cross both “quit” and everyone left the set. . . .

27. Stockett testified that she felt helpless and was disgusted by Tolin’s advances. Although Tolin sometimes stopped bothering Stockett when she pushed him away, she couldn’t stop him permanently. The advances affected Stockett’s ability to do her job; she became very nervous and went out of her way to avoid Tolin. Stockett regularly cried at the office and during her drive home from work. Stockett testified that she no longer trusts men and is uneasy around them. Stockett has had several jobs since terminating her employment at Limelite, including as a cocktail waitress, as a receptionist with a production firm, some modeling jobs, and work as an “extra.” Stockett now works as a manager of a cosmetic counter at Lord and Taylor. She testified that the reason she en-joys this job is that she doesn’t have to work with any men. Additionally, Stockett’s doctor told her that she was getting an ulcer, and for approximately one year, Stockett has been taking Tagamet for stomach symptoms that include nervousness, burning, and being sick to her stomach. . . .

II. CONCLUSIONS OF LAW

. . . . 53. Stockett is accordingly entitled to back pay from the date of termination of her employment

with Defendant corporations (4/22/87) up to the date of trial (2/20/90), . . . . Therefore, at her rate of $16,380/year base pay, Stockett is entitled to back pay in the amount of $46,305, less $4,401 that she earned from other employment,2 for a total back pay award of $41,904.3

[12] 54. Additionally, because of the working conditions detailed at the Tolin studios, rein-statement would be ineffective as a make-whole remedy, and Stockett is entitled to “front pay.” . . . Plaintiff is accordingly awarded $16,380 in front pay.

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[13] 55. Inasmuch as Tolin was managing agent and principal of each of the corporations, and since the evidence of a pervasively hostile work environment was well known to the principal offic-ers, agents, and employees of the Defendant companies, each of the corporations fairly is responsi-ble for any sexual harassment by Tolin. . . .

[14] 56. As an individual defendant, Tolin, as an agent for a corporate employer, is directly lia-ble for his actions that violate Title VII. Id. . . .

61. We find that Stockett is entitled to recover for the tortious behavior of Tolin. . . . 71. Under controlling Florida law, we conclude that Tolin’s relentless pursuit of Plaintiff and

others warrants special remediation by this Court. The Court will impose punitive damages in this case. . . .

ORDERED AND ADJUDGED that Plaintiff, Michelle Ann Stockett, shall recover from the De-fendants, Frank Tolin, Limelite Studios, Inc., Limelite Video, Inc. and Directors Production Com-pany, jointly and severally, judgment for damages in the aggregate amount of $308,284, appor-tioned as follows:

1. As to Count I, for violation of Title VII, back pay in the amount of $41,904, plus front pay in the amount of $16,380.

2. As to the state torts of battery, invasion of privacy, false imprisonment and intentional inflic-tion of emotional distress, compensatory damages in the aggregate amount of $250,000. Addition-ally, it is

ORDERED AND ADJUDGED that Plaintiff shall have judgment for punitive damages in the amount of $1.00 against Directors Production Company, $5,000 against Limelite Studios, Inc., $50,000 against Limelite Video, Inc., and $1 million against Frank Tolin, for a total of $1,055,001 in punitive damages. Plaintiff’s total recovery in the case, as to both compensatory and punitive damages, shall therefore be $1,363,285. Finally, it is further

ORDERED AND ADJUDGED that Plaintiff, as a prevailing plaintiff in a Title VII action, is en-titled to recover reasonable attorney’s fees pursuant to 42 U.S.C. § 2000e–5(k). A proposed Order of Final Judgment shall be submitted by Plaintiff within fifteen (15) days of this Order.

DONE AND ORDERED.

* * * *

135

YALE LAW IOURNIAL.

A WORD OF ADVICE TO YOUNG LAWYERS.

At this time of the college year a very large number of earnestand intelligent young men are preparing to enter upon the practiceof the legal profession.

I venture to lay before those of them who may read this articlesome of my views regarding what I consider of the utmost im-portance to one who desires to properly and successfully pursuethe practice of the profession of the law.

A lawyer on one occasion suggested to the bishop of one ofthe great churches of the United States that a particular minister ofthe gospel be sent to a certain charge in a western State. Thereverend gentleman very curtly said that the person proposed forthe place was not fit for so important a station, for the reason thathe lacked in experience. Whereupon the lawyer, who was a dis-trict judge, inquired of the bishop if he cared to know what he,the judge, thought the qualifications of a minister of the gospelshould be. The bishop did not seem particularly anxious to knowwhat the other man's views were on that matter, but permitted himto state them.

"Bishop," said the judge, "in my opinion it is of the first im-portance that a minister of the gospel should be a gentleman.Secondly, he should be a Christian. Thirdly, he should be a manof brains and education; and lastly, he should be a person of ex-perience in his profession."

My experience with lawyers has caused me to believe firmlythat the most necessary thing for a lawyer to know, is how to be-have himself,-in the community, in his office, and before thecourt. He should be a man of courteous manners;. dignity, notpomposity; civility, not frivolity; earnestness, not offensive self-assertion.

All men are not born alike. All do not have by nature the quali-ties which attract their fellow beings. Some have qualities whichrepel, notwithstanding the fact that they desire to treat men asthey themselves would be treated.

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ADI'ICE TO Y, OUNG LAWYERS.

Apart from the duty that the lawyer owes himself, lie owes a

duty to his clients to make himself as useful as he can, and, therefore,

he cannot serve his client as he should if he lack in courtesy and

good manners. More than one man has incurred the natural,

human antagonism of a judge on the bench by bad manners in

the court room. The business of the lawyer before the court is

to present his case in the best possible manner, to the end that the

court may fully understand the position taken by counsel, without

in any wise 1having its attention distracted by the bad manners of

counsel. To engage in conversation with other persons in the

court room; to rustle papers; to snarl, snap at, or quarrel with

opposing counsel; to scream or yell in making an argument; or to

do any of the other improper things which are frequently done,

and some of which are too coarse for me to mention in this article,

is to draw away the attention of the court from the matters before

it, and thereby cause it to fail to see or understand the very points

and matters which counsel desires to have it consider and decide in

favor of his client.It is impossible to lay too much stress upon the fact that the

advocate and the counsel are persons who are tryinig to convey the

truth to the jury or the court, with the purpose of having the right

prevail; in other words, the lawyer is the means by which the

truth is to be conveyed. Bad manners are obstacles, and fre-

quently prevent the court from getting the ideas which are sought

to be conveyed.It is of the greatest importance to a lawyer that he should un-

derstand his fellow beings, and, knowing how to treat them,

treat them well and decently, in order that he may not become

persona non grata to the court or the judge thereof, or to any

one else with whom he is trying to prevail.

Fearing that I might disgust the readers hereon, I shall not

enumerate a number of things which are done in a court room

which ought to be, to say the least, avoided. There are some acts

which some lawyers do in the presence of a court, so outrageous and

so distracting, and so destructive of the very purpose for which

courts are instituted. that the presiding judge may not, and does not,

call the attention of the offender to his offensive conduct in open

court for the reason that to rebuke him would be to disgrace him

him forever in the community.

Quite often the judges on the bench are themselves to blame in

matters of courtesy, and thus also the course of justice is inter-

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YALE LAW JOURNAL.

fered with, for the reason that the lawyers on the floor, many ofthem men of refinement and cultivation, are not only offended, butso disconcerted that they lose the thread of their own argumentand are unable to present the case before the court as they should,in the interests of their clients and of justice.

The litigant has a right to a fair, polite, deliberate and impartialhearing; he has a right to the best efforts and most effective serviceof his counsel, and these he cannot have if the counsel is thwartedby the bad manners of the judge, or is handicapped in the perform-ance of his own duties by his own bad manners, which make himdisagreeable to those whose good opinion or whose best judgmenthe desires to obtain.

If, when counsel is presenting his views to the court upon a closequestion of law, he does or says something disagreeable, impolite, oruncivil, offending the court or disturbing the good order thereof,in all probability he may at the very time distract the attention ofthe judge from the main point in the case-the point upon which herelies; and the court, not having its attention called to it, mayoverlook the controlling principle in the case.

Some attorneys seem to be of the opinion that oratory is neces-sary to success. Frequently oratory is annoying when used to thecourt, and therefore good sense and good manners require thatcounsel do not indulge in it, however pleasing he may think it willbe to the auditors not sitting upon the bench. While in some fewcases an orator may influence a jury by eloquence, as the word isusually understood, it is not appropriate or expedient to resort to itbefore a judge who is trying to learn and not to be entertained.The lawyer, who without any apparent intention of attracting at-tention to his style of speech. mode of expression, posture or gesture,presents his case to the court clearly, in grammatical and properlanguage, says what he has to say in as few words as possible, andsits down, is more likely to convince the court of the correctnessof his contention than a man who devotes himself to mannerisms,tries to wax eloquent and prove to the people in the court room, andnot to the court, that he is a great orator, a fine speaker, an elo-quent man, and one who, in the opinion of the people, ought toprevail.

Therefore, I have thought it proper, through the medium of thismagazine, which is read by so many of the legal profession, tourge earnestly upon those now being graduated from our lawschools the great importance of cultivating manners as well asbrains, in order to succeed in the noble profession of law, whichamong the gentlemen of all professions is recognized as that agencywhich has more influence in maintaining law, order and justice,than any other in the civilized world.

George R. Milburn.

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Snippets I’ve done some digging, and as best I can tell, this story is true:

It was the morning of oral argument and one of the clerks was at Starbucks picking up half a dozen coffee orders to take back to chambers. There was quite a line and when the clerk was finally ordering, the gentleman behind her started huffing with exasperation at the number of orders that she was placing . . . .

Now this Starbucks is the only coffee shop with-in six blocks of the courthouse. The clerk, her judge, and most of the court staff come here daily. . . .

That’s when she first really saw “Red Tie Guy.” He kicked his leather bag across the floor to-wards the coffee pick up area and then dropped down a stack of papers and a Redweld fold-er topped with a brief right where the coffees were to be set for customers. He was a one-man obstacle course between patrons and their coffee. The clerk’s five coffees started to come out and she began the process of doctoring each order, fitting the cups with a lid, and getting them se-cure in the cardboard carrier. She noticed that the brief on top of “Red Tie Guys” stack was a brief on calendar before her judge later that morning.

And that’s when he started yelling at the barista. . . . Back in chambers, the clerk relayed her coffee-run experience while the team reviewed the

calendar . . . . Red Tie Guy’s case was early in the calendar so the courtroom was full. As appellant he

placed his documents at counsel table and proceeded to the lectern. Without waiting to hear from the court, he launched into his “May it please the court,” to which he was interrupted immediately with, “I don’t know. It sounds like you had an awful difficult time getting your coffee this morning.”

Everything stopped. . . .

Wendy McGuire Coats, Red Tie Guy: A True Story of the Overpowering Influence of Facts Outside The Record, Appellate Issues (Sept. 2015). PLEASE NOTE: DO spend a few minutes finding and reading the full story!

• • • • •

This story was much easier to check, and it also seems to be true:

Virginia Beach lawyer John G. “Jack” Crandley has been disciplined again by the Virginia State Bar for directing sarcasm at other attorneys.

This time, the penalty could trigger a 90-day suspension under terms of a previous discipli-nary order. . . .

A circuit judge found Crandley in contempt of court after a 2013 trial. Judge H. Thomas Padrick Jr. said Crandley had been continually rude and sarcastic to witnesses, despite the judge’s admonishment. Padrick said Crandley also improperly argued with the judge, display-ing anger at one point, and personally attacked opposing counsel throughout the trial. . . .

Peter Vieth, Lawyer disciplined again for sarcasm, Virginia Lawyers Weekly (Oct. 23, 2015).

• • • • •

On this story I have no idea, but the comments fit the practice of law:

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. . . Is Ray Donovan or Jonathan Strange more fun for you?

Ray Donovan is more fun. Ray Donovan is more of a family because we’ve been doing it for four years now. We do have a laugh. Ray Donovan is very dark and very serious. As actors will tell you, the darker and more serious the material, the more jokes that go around set. It’s a counterbalance. The hardest thing to do and most miserable films are comedies. . . .

Aaron Couch, ‘Jonathan Strange’ Star on Early Hesitations, Author’s Surprising Set Visit, Hollywood Re-porter (June 6, 2015).

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CASE MANAGEMENT SYSTEM

Title: Case Management System

Acronym: CMS

Originator:

Department/Agency Name: U.S. Department of Justice Major Organization Subdivision: Environment and Natural Resources Division Street Address: 950 Pennsylvania Ave., N.W. City: Washington, DCZip Code: 20530 Country: United States Hours of Service: 9:00 a.m. - 5:30 p.m.

Abstract:

The Case Management System (CMS) contains information on matters and cases under thejurisdiction or consideration of the Environment and Natural Resources Division (ENRD). In addition,the CMS selectively contains information on ENRD-initiated cases assigned to, or shared with, U.S.Attorneys’ Offices. The CMS contains information such as case titles, certain court filing dates,statutes at issue, and names of Division personnel assigned to matters. The CMS also containsinformation on the time spent by Division staff on matters and cases.

Purpose:

The purpose of this system is to maintain identifying information about all actual or potential casesand related matters under the jurisdiction or consideration of the ENRD. The automated case trackingand timekeeping function of this system are maintained to monitor, manage, and evaluate theDivision's litigation and related activities.

Access Constraints:

All ENRD employees are allowed access to the CMS after appropriate training. Access is passwordprotected and integrated into the Justice Consolidated Office Automation Network. Some informationin the system is not available to all employees because it is protected under the Privacy Act orconcerns criminal proceedings or other privileged matters. Persons outside the ENRD are not allowedaccess. 141

Updated April 13, 2015

Use Constraints:

Users of the CMS are restricted to only those functions and data necessary to perform assignedtasks.

Agency Program:

The Environment and Natural Resources Division has responsibility for a broad variety of affirmativeand defensive litigation relating to the protection, use and development of natural resources andpublic lands, wildlife protection, Indian rights and claims, cleanup of hazardous waste sites, acquisitionof private property for federal use, prosecution of environmental crimes, enforcement of environmentallaws, and defense of environmental challenges to government programs and activities.

Sources of Data:

Data contained in the CMS come primarily from pleadings and other court filings and records, as wellas from Division sources, client agencies, foreign governments, and Federal, State, and local lawenforcement agencies.

Order Process:

Requests for information should be submitted in writing to the following office: U.S. Department ofJustice, Environment and Natural Resources Division; Law and Policy Section; Freedom ofInformation Act Office, P.O. Box 7415, Ben Franklin Station, Washington, DC 20044.

Contact for Further Information (if different from originator):

Department/Agency Name: U.S. Department of Justice Major Organization Subdivision: Environment and Natural Resources Division Minor Organization Subdivision: Law and Policy Section Name of Unit: Freedom of Information Act Office Street Address: 950 Pennsylvania Ave., N.W.City: Washington, DCZip Code: 20044Country: United States Hours of Service: M-F, 9:00 a.m. to 5:30 p.m. Telephone: (202) 514-1442 FAX: (202) 514-4231 E-Mail Address: [email protected]

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AUTOMATED CASE MANAGEMENT SYSTEM (ACMS)

TITLE: Automated Case Management System

ACRONYM: ACMS

ORIGINATOR:

Department/Agency Name: U.S. Department of JusticeMajor Organization Subdivision: Executive Office for U.S. TrusteesMinor Organization Subdivision: Office of Research and PlanningName of Unit: Database Management Systems DivisionStreet Address: 441 G Street, NW, Suite 6150City: WashingtonState: D.C.Zip Code: 20530Country: United StatesHours of Service: 9:00 a.m. to 5:30 p.m.Telephone: 202-616-2188FAX: 202-616-1174E-Mail Address: [email protected]

ABSTRACT: ACMS is a database that stores records on bankruptcy cases, including case identifiers, estate details,and a history of case hearings, reports, pleadings, appointments, and fees.

PURPOSE: ACMS was designed to manage bankruptcy cases filed throughout the United States and to ensure thatcases are administered in accordance with the Bankruptcy Code. The system is used to provide information to theU.S. Trustees on case status, hearing dates, names of the trustee and attorney assigned and other data. It is alsoused to provide a variety of accounting and management reports.

ACCESS CONSTRAINTS: Access to this data is limited to employees within the United States Trustee Program inorder to perform their official duties. Administrative, physical, and technical safeguards, such as user IDs andpasswords, are in place to protect the integrity of the data.

USE CONSTRAINTS: Users of the ACMS will be restricted to only those privileges necessary to perform assignedtasks.

AGENCY PROGRAM: The U.S. Trustee Program is charged with promoting the efficiency and protecting andpreserving the integrity of the bankruptcy system. ACMS is one of the tools utilized to accomplish this mission.

SOURCES OF DATA: Data contained in ACMS is obtained from bankruptcy petitions filed by the debtor with thebankruptcy court as well as actions taken by the Bankruptcy Courts and the Office of the U.S. Trustee.

RESPONSIBLE OFFICE FOR DISTRIBUTING INFORMATION (if different from originator):

Department/Agency Name: U.S. Department of JusticeMajor Organization Subdivision: Executive Office for U.S. Trustees

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Updated May 14, 2015

Minor Organization Subdivision: Office of General Counsel (Attn. FOIA Counsel)Name of Unit: Street Address: 441 G Street, NW, Suite 6150City: WashingtonState: D.C. Zip Code: 20530Country: United StatesHours of Service: 9:00 a.m. to 5:30 p.m.Telephone: 202-307-1399FAX: 202-307-2397E-Mail Address: [email protected]

ORDER PROCESS: A request for access to a record from ACMS must be made in writing with the envelope andthe letter clearly marked "FOIA Request." Include in the request your full name, complete mailing address, and otheridentifying data you may wish to furnish to assist in making a proper search of our records, such as a case name,docket, number, and location of Court where the bankruptcy was filed. For further information regarding the filing ofinformation requests, see our FOIA home page at www.usdoj.gov/ust/foia.htm.

OFFICE OF CONTACT FOR FURTHER INFORMATION (if different from originator):

Department/Agency Name: U.S. Department of JusticeMajor Organization Subdivision: Executive Office for U.S. TrusteesMinor Organization Subdivision: Office of General Counsel (Attn. FOIA Counsel)Name of Unit: Street Address: 441 G Street, NW, Suite 6150City: WashingtonState: D.C.Zip Code: 20530Country: United StatesHours of Service: 9:00 a.m. to 5:30 p.m.Telephone: 202-307-1399FAX: 202-307-2397E-Mail Address: [email protected]

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Privacy Impact Assessment for the

OPLA Case Management System

DHS/ICE/PIA-036

June 26, 2013

Contact Point Peter S. Vincent

Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement

202-732-5000

Reviewing Official Jonathan R. Cantor

Acting Chief Privacy Officer Department of Homeland Security

202-343-1717

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ATTACHMENT C

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

Lisa Gregory, et. al.

Plaintiffs, Civil Action No: 2:12cv11

v. Belfor USA Group, Inc.,

Defendant.

RULE 16(b) SCHEDULING ORDER

Subject to any motions now pending, the parties having reported to the Court in

accordance with Federal Rule of Civil Procedure (hereinafter “Rule”) 26(f), the Court ORDERS

as follows (only the court, by order, may approve extensions of time):

1. Trial shall commence on October 2, 2012, at 10:00 a.m., at Norfolk.

Unless otherwise ordered by the court, the party intending to offer exhibits at trial shall place them

in a binder, properly tabbed, numbered, and indexed, and the original and two (2) copies shall be

delivered to the clerk, with copies in the same form to the opposing party, one (1) business day

before the trial. The submitting party may substitute photographs for demonstrative or sensitive

exhibits.

2. The party having the burden of proof upon the primary issues to which

potential Rule 702, 703 or 705 evidence is directed shall identify expert witnesses to be proffered

upon such an issue by name, residence and business address, occupation and field of expertise on

June 4, 2012. The disclosure outlined in rule 26(a)(2)(B) shall be made on July 5, 2012. In

addition to the disclosures required by Rule 26(a)(2)(B), the same disclosures shall be made on the

same dates regarding all witnesses proffered by a party for the purpose of presenting evidence

under Rules 702, 703 or 705 of the Federal Rules of Evidence, whose first direct contact with the

case or the parties occurred subsequent to the filing of this action. Rule 702, 703 or 705

disclosures intended solely to respond to, contradict or rebut evidence on the same subject matter

150

disclosed by another party pursuant to paragraph (a)(2)(B) of Rule 26, or pursuant to this order,

shall be made on August 16, 2012. Any rebuttal disclosure by the party bearing the initial burden

of proof shall be made on August 21, 2012, and shall be limited as to source to expert witnesses

previously identified. Further rebuttal to Rule 702, 703 or 705 evidence shall be permitted only

by leave of court.

3. Discovery shall be commenced timely and, except as to expert witnesses,

shall be completed by plaintiff(s) on or before July 24, 2012; by defendant(s) on or before

August 21, 2012. “Completed” means that interrogatories, requests for production, and requests

for admission must be served at least thirty (30) days prior to the established completion date so

that responses thereto will be done on or before the completion date. All subpoenas issued for

discovery shall be returnable on or before the completion date. Unrepresented parties may

request subpoenas of witnesses for depositions or trial, but such requests must be accompanied by

a memorandum containing the name, address and purpose of the testimony of each witness and be

approved in advance of issuance by a judge or magistrate judge of this court. Such approval shall

not preclude any witness from contesting a summons. In accordance with Rule 5(d), depositions

upon oral examination and upon written questions, interrogatories, requests for production,

requests for admission, notices for depositions and production, requests for disclosure of expert

information, expert information, disclosures, and answers and responses or objections to such

discovery requests shall not be filed with the court until they are used in the proceeding, or

ordered filed by the court. Discovery improperly submitted will be discarded by the clerk without

notice to counsel. The party taking a deposition or obtaining material through discovery is

responsible for its preservation and delivery to the court if sought to be used by any party or

ordered filed.

4. All discovery of experts, and all depositions taken by the proponent of a

witness for presentation in evidence in lieu of the appearance of the witness at trial, shall be

concluded on or before August 28, 2012.

5. The pretrial disclosures required by Rule 26(a)(3) shall be delivered to all

counsel and unrepresented parties on or before August 29, 2012, and filed with the Court at the

final pretrial conference as part of the final pretrial order. Any objections to this disclosure shall

be delivered to all counsel and unrepresented parties on or before September 5, 2012, and, if

unresolved, will be heard at the final pretrial conference. The failure to deliver timely objections

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to Rule 26(a)(3) disclosures shall constitute a waiver of the right to object. Wherever delivery to

counsel or unrepresented parties, as opposed to the Clerk, is required by this order, facsimile

transmission or equivalent electronic transmission during normal business hours on the due date,

accompanied by simultaneous service by mail, shall be considered timely.

6. An attorneys’ conference is scheduled in the office of counsel for plaintiff

or, if the plaintiff is unrepresented, at the office of counsel for the defendant whose office is

located closest to the courthouse at Norfolk on September 7, 2012. Counsel and unrepresented

parties shall meet in person and confer for the purpose of reviewing the pretrial disclosure

required by Rule 26(a)(3), preparing stipulations, and marking the exhibits to be included in the

final pretrial order outlined in paragraph 7. With the exception of rebuttal or impeachment, any

information required by Rule 26(a)(3) not timely disclosed, delivered, and incorporated in the

proposed final pretrial order shall result in the exclusion of the witnesses, depositions, and exhibits

which are the subject of such default.

7. A final pretrial conference shall be conducted on September 14, 2012, at

11:00 a.m., at the courthouse in Norfolk, at which time trial counsel and unrepresented parties

shall appear and be prepared to present for entry the proposed final pretrial order setting forth: (1)

a stipulation of undisputed facts; (2) identification of documents, summaries of other evidence,

and other exhibits in accordance with Rule 26 (a)(3)(A)(iii) to which the parties agree; (3)

identification of Rule 26(a)(3)(A)(iii) materials sought to be introduced by each party to which

there are unresolved objections, stating the particular grounds for each objection, and arranging for

the presence of any such materials at this conference; (4) identification of witnesses in accordance

with Rule 26(a)(3)(A)(i) indicating any unresolved objections to the use of a particular witness and

the grounds therefor, and designating those witnesses expected to testify by deposition in

accordance with Rule 26(a)(3)(A)(ii); (5) the factual contentions of each party; and (6) the triable

issues as contended by each party. While preparation of the final pretrial order shall be the

responsibility of all counsel and unrepresented parties, counsel for the plaintiff, or if the plaintiff is

unrepresented, counsel for the first-named defendant, shall distribute a proposed final draft to all

other counsel and unrepresented parties on or before September 12, 2012. Unresolved

objections shall be noted in the proposed final pretrial order, but disagreements concerning the

content of the final draft shall be resolved before the final pretrial conference, at which time the

parties shall present a complete and endorsed proposed draft of the final pretrial order. Failure to

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comply with the requirements of this paragraph may result in the imposition of sanctions pursuant

to Rule 16(f).

8. Trial by jury has been demanded. Proposed voir dire and two sets of jury

instructions (TYPED IN CAPITAL LETTERS), shall be delivered to the Clerk on or before

September 25, 2012.

9. Motions

a. Disposition of motions for summary judgment is left to the discretion of

the court, and such motions may or may not be addressed prior to trial.

b. Counsel must file a brief in support of their motion or response to a motion

as required by Local Civil Rule 7(F).

c. Briefs may not exceed the page limits set by Local Civil Rule 7(F)(3)

without an order of the court.

d. Counsel filing a dispositive or partially dispositive motion against a pro se

party must comply with the notice requirements of Local Civil Rule 7(K).

e. The original signature of counsel of record must be on all pleadings and

motions filed with the court. Local counsel are required to sing the pleading. See Local Civil

Rule 83.1(F) for counsel’s responsibilities.

10. ADR has neither been requested nor ordered in this case. If the parties

agree upon a settlement, counsel for one of the parties shall immediately notify the court by

facsimile mail directed to the clerk’s office with copies to all other counsel of record. If an

endorsed dismissal order is not received within eleven (11) days of receipt of the facsimile notice

by the clerk, the court may enter an order dismissing the case with prejudice and retaining

jurisdiction to enforce settlement.

________________________________________________ Raymond A. Jackson

United States District Judge

Date: March 12, 2012

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Snippets Project management started long ago . . .

. . . and continues today:

For a nifty depiction of what has happened between long ago and today, go here: visual.ly/brief-history-project-management.

• • • • •

These morsels of wisdom and sound advice are on page 189 — in the “new section on civil pretrial case management” — of a book that every lawyer who appears in federal court (or even just works on matters that might end up there) should have:

The judge and the parties share case-management responsibility. The parties exercise first-level control and are the principal managers of their cases, but they do so under a schedule and other limits established by the judge. Many parties will not manage, or will manage in ways that are disproportionate to the needs of the case, or will otherwise frustrate the just, speedy, and inexpensive determination of the action. Judges

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may meet their own responsibility for the efficient resolution of cases both by guiding the parties to sound self-management and by intervening to impose effective management when necessary.

Active judicial case management is an essential part of the civil pretrial process. No party has the right to impose disproportionate or unnecessary costs on the court or the other side. Many parties and lawyers want and welcome active judicial case management, viewing it as key to controlling unnecessary cost and delay.

Can you find it? What is its title? When was the first edition published? How much will it cost you to get your very own copy of the latest edition of this invaluable resource?

• • • • •

This will not be on the quiz, but you should look at it anyway: www.capterra.com/law-practice-management-software/. How many project management products do you see? The last time I visited I stopped counting at 50.

• • • • •

If the other readings for today have left you with the impression that case and project management sys-tems consistently advance human productivity and general excellence, pause for a moment to consider this classic from what was then the General Accounting Office (it now has a different, more managerial name):

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© 2010 The Corporate Executive Board Company. All Rights Reserved.

Dan Currell Executive Director

Speaking Well ™

Public speaking is always a challenge. The subject matter may be important, but it’s usually not inherently exciting. Your job is to make it exciting. Your success will largely turn on whether you can do that in a way that the audience can follow and remember. There is a great deal the speaker can do to control the room and make the session fun and productive, but most speakers fail on the basics. Below I’ve laid out what I believe are the basics.

Forget what you learned

Nearly every piece of “received wisdom” with regard to public speaking is either wrong or irrelevant. It does not matter where you put your hands, how you stand, or what you wear. You almost certainly aren’t talking too fast – news anchors speak at 140 words per minute or more. It is not a big problem if you say “um”. Your speaking style doesn’t matter much, within limits. Two things matter: (i) confidence and (ii) passion for the subject matter.

Skeptical? Think of your favorite university professor, the one with a gift for teaching. Was she a paragon of grooming and posture? Maybe, but I doubt it. My image of the gifted university professor is “eccentric and disheveled”. If posture and elocution and where you put your hands really matter, why do great teachers sometimes come with a slouch and a weird accent?

The great ones are passionate about their material, and that passion leads to confidence. Their gift for teaching consists in confidently conveying that passion to their students. They are great teachers because of that passion. They can dress funny and lean on the lectern and put their hands in funny places and it just won’t matter.

Most speeches and presentations get this backwards: a well-dressed person with no apparent passion for her subject carefully articulates points that I don’t care about and can’t remember – because she didn’t seem to care either. Now, perhaps she cared – but she was too constrained by the painfully reticent social conventions of public speaking to convey her passion. This is the true root cause of failure.

My comments below are culled from feedback given to speakers after over a hundred presentations on a wide variety of topics. I have grouped them under two headings – “Attitude” and “Technique”. To be clear, Attitude comes first because it is the most important: confidence and passion. Technique is helpful as it will allow you to convey your passion in a clear and orderly way.

rdavies

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© 2014 The Corporate Executive Board Company. All Rights Reserved. Page 2 of 3

ATTITUDE

Start With Confidence. The first few minutes of a presentation will win or lose it. They should be your best-prepared, but it should not feel to the audience that you have memorized your opening. What you must convey at the beginning is natural confidence and a passion for the subject matter. So – what should you do?

Start by Owning the Room. Call the room to order and begin. You must own the room from the beginning – this is part body language, part vocal presence, and a large part your determination that the floor is now yours. The convention of sheepishly asking the group to take their seats bleeds authority away from the speaker before s/he has even started. Never do that.

Start With Content. Never start with logistics and administrative notes – start with real content. The makers of James Bond films figured this out long ago – start with an action scene, and then run the opening credits. Why would you bore your audience with opening credits before they even get to see anything?

For goodness sake, don’t start by saying asking everyone politely to sit down and then telling them where the bathrooms are and other “throat-clearing” pleasantries that chew up the first three minutes. Get right to the very best stuff, then double back to the minimum necessary logistics and pleasantries. You only have the full audience’s full attention for the first minute or two. After that, you have a rolling 75% of the audience paying attention and the other 25% spacing out.

Forceful Clarity: Be Half As Long and Twice As Good. Never half-say something, half-do something, or half-commit to a point. Never hedge your bets or seem tentative. Commit to the points you are making, and make them. Everything you do is done with purpose and clarity. Done right, this will mean that you repeat yourself very infrequently. Repetition can be used as a device for emphasis, but the vast majority of repetition is unconscious, stems from a failure to say things right the first time, and signals to the audience that they don’t really need to listen to every word. If you are confident and clear the first time in what you say, you can be tighter and more efficient – and repeat yourself much less.

Be Happy to Be There. Don’t just smile – that’s not enough. You must genuinely be happy to be there. It will dramatically change the feel of the room and the audience’s receptiveness to your message.

Silence is Power. You can instantly assess a public speaker’s effectiveness by noticing her use of silence. Great speakers are comfortable with silence, and they use it. Most speakers fear silence, and constantly try to fill the silence with words. This is the reason we say “um” – we have an intuition that we must fill the room with words. Silence is always more powerful than “um”. And silence is often more powerful than any of the words that could take its place. Great speakers embrace silence, and they use it to control the room.

Believe It. Do you believe your message? Are you showing me that you believe it? If you can answer yes to both, you win. Everything else is mere technique. And even technique doesn’t matter that much if you are showing me that you believe it – that is, if you are being successful in showing me that you believe your message, you are, one way or the other, probably nailing many of the technique points laid out below.

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© 2014 The Corporate Executive Board Company. All Rights Reserved. Page 3 of 3

TECHNIQUE

All Points Are Not Equal. Decide on a short list of points that are most important and make a plan to ensure that the audience knows each of those most-important points by the time you’re done. So, for example, in a 30-minute, 10-slide presentation, you should not devote three minutes to each slide. Find the three slides that matter most and spend five or more minutes on each of those. The other seven should be used to sharply frame the key points.

Don’t Address the Slides. Address the Audience, Using the Slides. Speakers most often fail because they focus on the information (normally, slides) while the audience happens to be in the room. Often, the audience is watching the speaker as he has a conversation with the screen.

You are not here to teach information; you are here to teach people. Ask yourself, what two or three things do I have to say to these people? How can I best use the slides to get those points across?

Don’t Talk What. Talk Why. Presentations are interesting when you focus on “why?” Why are we talking about this? Why should we care? Why is this hard? Why do we believe we should change? Why are we showing you this information (as opposed to some other)? By contrast, presentations are deadly boring when you just focus on “what” – describing facts. Sure, facts must be conveyed – but they should be conveyed through the lens of why. We must always know why we are looking at this?

Transition With Purpose. Never, ever say the words “next slide”. You are not announcing train stops. Instead, move from one slide to the next by telling the audience why we are going to page 21. What is it that pages 1-20 left unresolved that necessitated page 21? Why aren’t we done? This keeps the audience involved and threads the pieces together into a narrative whole. It requires a total mastery of where you are headed – one often gets the impression that the speaker is saying “next slide” in order to discover what’s on it. Sometimes the audience should be surprised by the next slide. You should never be.

Manage the Clock – Openly. Time management disasters loom over most presentations. Speakers usually get through about ten percent of the presentation in the first half of the allotted time, and then accelerate to a breakneck pace to get through the rest. This is bad in every respect.

Only you can control how long the presentation goes. Nobody else is going to help you. So own the clock, and own it visibly. Set time parameters at the outset, and “put the clock in the middle of the room” – so to speak. Make it a part of the session from start to end – e.g., “Let me check on time – we had planned to go until 4:00 p.m. – is that still OK? . . . You can see that we are just getting to 3:30 p.m. now – and we’re entering the second of three sections . . . for us to reach a conclusion on Section III, we’ll need to move through the next four pages by 3:45 at the latest – so let’s plan for that.”

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©Corporate Executive Board 2006 1

Confidential

PRINCIPLES FOR MANAGING DATA PRESENTATIONS How To Avoid the Disasters I’ve Had

Dan Currell AER data presentations are very high-risk moments in your career. A page of data is a Rorschach test for the audience: there is no telling where they will take it. Without a strong leader, your AER will become a Lord of the Flies re-enactment. You will play Piggy.

When you put data in front of an audience, they don’t have enough time to figure out what it means. They have only enough time to figure out what the data is—what it basically says. e.g., that executives prefer CIOs who are chummy to CIOs who are gruff. This is just a data point—on its own, it doesn’t mean anything. Our job is to tell the audience what it means. If we fail in that job, the audience will carry that data point off and reach their own conclusions. And they will feel that we didn’t teach them anything; we just supplied some data.

There are three key points to remember:

(a) Audience Members Will Attack the Data: There is something affronting about

being presented with a massive data set and told (implicitly) that it’s right. Audiences will always try to ‘fight back’ at the data during the early phase of a presentation. Our job during this phase is to let them resist, but calmly and confidently show them that we know the data front-to-back, it is accurate, and it supports our core teaching.

(b) Audience Members Will Try to Find Their Own Meaning: The audience will

try to work out for themselves what the data means. During this phase, they will disagree, they will consume precious time, and they will almost always be wrong. Our job, from the moment we start talking—from before any data is shared—is to show that we have a compelling account of what the data means, and (implied) they do not need to test novel hypotheses. We will carry them through the material.

(c) But Audience Members Will (Almost Uncritically) Accept Our Meaning:

Audiences will sometimes attack our interpretation of the data—but most often, they will largely accept our interpretation. The same people who will attempt to attack our data will happily accept our account of that data. So our job is to start telling the story and conveying the core teaching points as early as possible. We need to be conveying what the data means from the moment we start the presentation.

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Confidential

Five Things to Get Right

1. Control the Audience’s Experience. For data presentations, you are the master and guide; you must control of the whole room at all times. Don’t just show them the data. Instead, create the entire audience experience. Use the data to tell them a story that teaches, and remember that it’s the only the story that matters. See #2.

Sample Scripting

“In the next three pages, I am going to review our methodology for this research, and I am going to show you how we used our access to _00 C_O’s to shed light on the problem of ________. I’ll ask you to hold your questions about methodology until I’ve covered these three pages, and then I will pull up for us to field any questions that you might have. After that, I will take us through more details on the key conclusions that I have already shared—and those are the real objective of this study.”

2. It’s Not About the Data. The point of the session is not to review the data and

discuss methodology. The point of the session is to teach insights that will improve how members manage their businesses. The data itself should never be the center of attention. That said, the audience will fixate on the data until you show them a compelling account of what the data teaches them. Sample Scripting

Wrong: “On page __, we see how executives scored the importance of speed of service in comparison with quality of service—as you can see, speed scores highest.”

Right: “In the course of our research, we wanted to know which is more important—speed or quality? So we asked _00 executives what they preferred—fast service, or slower, high-quality service? If you turn to page __, you will see a finding that surprised us: executives consistently prefer fast service, even when there is a quality penalty. We show that with the bar on the left.” Also, see above (#1) sample scripting on asking the audience to hold their questions as you cover methodology. It is important to contain early questions. See also #4 below.

3. It’s Not About the Details. Data and methodology are about details, but

management insight is rarely about details. We must take the details seriously,

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Confidential

but constantly pull the audience back up to the teaching. Once you have gained the audience’s confidence that you are masterful with the details, they will trust your interpretation. For winning their trust, see #4 below.

4. Questions: Stand and Deliver. In every data presentation, there is a First

Question. The First Question is a pin-drop moment in which the audience is deciding on your credibility. That question will invariably be about some detail of the methodology or data. Typical examples are “How have you defined ____?” or “What did you include in ______?” In response to the First Question, you absolutely must do the following:

Ø Square your shoulders to the person asking the question

and look directly at him or her. Ø Do not refer to your notes, binder, or anything at all. Ø Answer the question correctly and succinctly. Answer

it with a clear factual answer—not a reference to the appendix, not a “look on page 13”, nothing but “we defined ____ as ________.”

Ø Ask, “Does that make sense?” Ø Then keep going.

I have laid this out in some detail because it is in stark contrast to how we usually manage questions at CEB. But the goal here is very different. The First Question is unavoidably a volley in the battle for control of the room. You must conclusively demonstrate that you own the room and you own this content. Once you have answered the first few questions clearly and succinctly, the tone of the room changes as your credibility has been established; hostile questions will stop.

5. Discussion Management: Three Principles. Discussions during presentations

can be unruly. Because data can be interpreted many ways – remember, it’s a Rorschach Test – the audience can put much effort into creating, testing, and rejecting hypotheses about what the data means. This is a total waste of time. Instead, discussion should focus on how the teaching we have supplied can be applied in member organizations. In order to make this happen, we must control the discussion before it starts.

Sample Scripting

a. Foreshadow It: “In the next two pages, I am going to talk about how leadership traits affect workforce engagement. And after we have covered

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Confidential

those pages, we are going to pull up for a conversation—and when we get there, I want us to talk about how those leadership styles tend to present in your organizations, and what you have done to foster the types of leadership you are looking for.”

b. Control It: Establish that this is your show. Moreso than with a typical

AER discussion, you are in charge. “I’m going to start with Jerry and then move to Tom. And I’ll mention – in the spirit of fair warning – that I haven’t forgotten what you said during introductions, Bob—I’ll want us to come back to you before we’re through, too.” Taking this approach early on puts you in the driver’s seat.

c. Get Out of It: To bring a lively discussion to a close, you have to let the

audience know in advance that they need to back off so that they can get to the next great thing. “Let’s move down to Alice—and I’ll take two more thoughts after her. Then we’ll move on what we believe every recruiting executive’s key priorities should be in 2007.”

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© 2011 The Corporate Executive Board Company. All Rights Reserved.

Dan CurrellExecutive Director

A Brief Guide to Brief Presentations ™

Brief presentations are considerably simpler than long ones – often occupying a defined space in a broader meeting, and often done via teleconference or webinar. This doesn’t reduce the importance of a speaker’s effectiveness – in fact, catching the audience’s attention and focusing it on a few key messages can be difficult when the meeting or event is crowded with other speakers or agenda items. But a brief presentation should be easier because the speaker can establish her goal for the presentation more easily and convey it more directly than in a longer session. This is the point of presentations, after all – ensuring the audience knows your key message and takes away a few important related details. Brief presentations make this easy to do – as long as the speaker clearly knows and conveys the goal and the few key details she hopes to convey.

Below, a few key guidelines for brief, effective presentations using slides.

Confidence and Passion: confidence and passion for the subject matter are more important than anything else. If you have these two, you can break every rule that follows and still do awfully well. Most speakers don’t convey either of these things, let alone both. Focus on it – let this be the last thing crossing your mind before you start.

Nail the First Minute. The first minute of a short presentation must establish clearly why the topic is important to this audience. This can be said directly and without referencing slides: simply tell the audience why this topic matters, and what you hope to convey in the next few minutes. For many brief presentations, this is all you hope to achieve in total – you can win it in the first minute.

Be Half As Long and Twice As Good. Presentations run long because speakers waffle and equivocate. Never half-say something, hedge your bets or seem tentative. Commit to the points you are making, and make them. Making clear, declarative statements is the quickest, clearest way to speak – and your audience will appreciate the simplicity.

Pick Your Two or Three Key Points. Before you start, decide which points are more important than the others, and make a plan to dwell on those. For example, in a 10-minute, 5-slide presentation, you should not devote two minutes to each slide. All slides are not created equal. You must plan for this. It won’t happen on its own.

Always Talk Why. “What” (description) is boring. “Why” (reason, rationale) is captivating. Always be telling the audience why we are interested in this, or looking at that, or deciding on the other thing. Don’t bore them with too much descriptive “what” – take them to the “why”.

Then – a four-step method for treating each slide in a presentation:

1. Move In: Transition from one page to the next by answering why we are going there. 2. Basic Point: Once arrived, state the basic point of the page. Likely, reference the title or a major feature of the page. 3. Detail: Cover one or two key details that illuminate the basic point, making clear reference to some detail(s) on the

page. 4. Re-State the Basic Point: Reiterate, more briefly, the basic point – and set up the “why” that moves you back to #1

(Move In for the next page).

Rinse and repeat. This is a microcosm of every brief presentation – but bear in mind the admonition above that not all pages are created equal. Put more emphasis, time, energy and emphasis into the one or two pages you really want to emphasize.

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ADVISORY SERVICES

PRE-PRESENTATION CHECKLIST ™

1. Goals: I know the three main things that the group will get out of the presentation, and I know how and when they will get them.

Yes! Sort of. Hmmmmm.

2. Discussions: I know the two or three discussions that will likely be most important to this group, and I know on

what pages in my materials those discussions should probably happen.


3. Starting Out: I know exactly what I am going to say in the first 60 seconds of the presentation.


4. Introductions/Setting Context: I know how I am going to have the room introduce themselves, establish mutual goals for the meeting, or otherwise set up the organizational context for the meeting.


5. Danger Points: I know where this could go seriously awry, and I have a plan to manage it.


6. Time Management: I know how I will handle the material if I have half as much time as planned.


7. Confidence: I am crystal clear on why this topic is important to this audience, right now.


8. Actionability: I know what actions the audience should take as a consequence of this meeting, and I have a plan for making those actions clear and feasible from the audience’s perspective.


9. Conclusion: I know how I will create clarity at the end of the meeting as to what was accomplished in the meeting, and what needs to be done next in order to take action on the content of the meeting.


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Dan Currell

2012 Sample Script

The script below is certainly not perfect. It’s a selection from a script for the CELC AER in 2012. But I am using it to illustrate a few key points, which it does have elements of, and which are critical to effective script writing in my view. Here are the key items:

(a) Spoken English. We are taught to write in written English. But we don’t talk in written English, and any script written in that style will feel uncomfortable to any speaker. (This is why “scripts don’t work for you”. It’s written in the wrong language. And you need more practice.)

(b) Mapping. Tell the audience where to look. 30% of them are lost anyhow. Don’t say “next page” – they’ll be just as lost. Say the page number. When they look there, they should hear you using the very words that appear on the page. Don’t say words that mean the same thing, or

are similar. Say the same words. Otherwise, they’ll get lost again. It needs to be easy to follow along.

(c) Context. Tell the audience why they are looking at this thing. How does this thing relate to the thing they saw on the last page, and how does it relate to what they’ll see next?

(d) Discussions. Tell the audience when and what you want to discuss, and tell them that five minutes before you want it to happen. Script that in several pages in advance.

(e) We’re All On The Same Team. The voice is “us”, not “me/you”. We’re all on the same team here. We’re on the members’ side.

(f) Universal Problems: Problems are defined to apply to everyone. We only discuss problems that the whole membership has.

(g) Exportable Solutions: The solution isn’t exciting because Cisco created it; the solution is exciting because it can be exported to everyone.

(h) Meanings, Not Numbers: Nobody cares that something scored a 3.2. They only care what it means. What does that mean? How does that help me? What is the real value? Data is a means to an end. We often treat it as an end in itself.

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✯ EXEMPLARY LEGAL WRITING 2012 ✯

•MISCELLANY•

LETTER TO PATRICK WENSINK

Jack Daniel’s, July 12, 2012

Christy Susman & David Gooder†

Editor’s note: The letter on the next page addresses an issue related to the two images on this page — the classic American icon on the left and the more recent homage below.

† Christy Susman is Senior Attorney, Trademarks, and David Gooder is Chief Trademark Counsel at Jack Daniel’s Properties, Inc. Copyright © 2012 Jack Daniel’s Properties, Inc. Reprinted with the kind permission of Jack Daniel’s, the authors, the recipient. The trademark JACK DANIEL’S appears courtesy of Jack Daniel’s Properties, Inc. JACK DANIEL’S is a registered trademark of Jack Daniel’s Properties, Inc.

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The Legal Profession (Davies) 2016 (spring) syllabus 2015-12-14

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Transcript of The Legal Profession (Davies) 2016 (spring) syllabus 2015-12-14