February 2021

Dear Friends:

Happy New Year—here’s hoping!  2020 was an incredible year of political, social and health challenges in both the US and Canada.  It is now time to look forward. I hope that you had the opportunity to watch the inauguration of the 46th President of the United States and the first female Vice President, who is also the first Vice President of black and Indian descent. President Biden and poet Amanda Gorman delivered messages of hope and a call for an end to divisiveness to a bipartisan audience that included former Presidents of both parties. Of course, unity following an election has been a common refrain in U.S. history. Upon his inauguration, Thomas Jefferson said, “We are all Republicans, we are all Federalists,” and called for our citizens to unite with one heart and one mind. Subsequent Presidents from Lincoln to Reagan have made similar remarks. Regardless of your political affiliation, it is important to support our new President as he attempts to unify the country. As President Trump said in his farewell address, “We inaugurate a new administration and pray for its success in keeping America safe and prosperous.” Also noteworthy is that the first phone call made by President Biden to a foreign leader was with Prime Minister Justin Trudeau of Canada, demonstrating a renewed commitment to strong and collegial Canada-U.S. relations.

Like many of you, I wonder what the College can do to be part of the solution to the “uncivil war”. Democracy is strengthened by peaceful free speech expressing different points of view and an exchange of ideas. Our Fellows encompass every end of the political spectrum, yet we are bound together by our fellowship and collegiality. No one is asked her or his political affiliation when joining a College committee. Despite the differences among Fellows, the committees work collegially to achieve common goals in furtherance of our mission statement. Through the Judicial Independence Committee and State and Province Committees, the College speaks out against attacks on the judiciary and against violence threatening democracy itself, regardless of which party is involved. The College also has addressed racial and social justice by creating a new Thurgood Marshall Equality and Justice Award to recognize leaders who have been a champion of justice and equality in all forms. We will soon announce the first recipient of the award and it will be presented at our 2021 Annual Meeting scheduled in Chicago.

The College continues to be very active in addressing administration of justice issues created by the pandemic in both countries. The Advocacy in the 21st Century Committee is reviewing and updating the seven papers it prepared during the summer of 2020. The papers on preparation and trial of civil cases address the effective use of remote video and procedures for its use in depositions, hearings, nonjury trials, and appellate arguments. Another paper addresses the issues to be considered when deciding whether and how to hold a jury trial during the pandemic. Additionally, the criminal law practitioners on the Committee have created an updated paper titled “Ongoing Constitutional Challenges to the Criminal Justice System as a Result of the Covid-19 Pandemic.” Their work product will be presented to the Executive Committee in late February and, if approved, will be available on our website in mid-March 2021.
 
The College also is attempting to meet the challenge of mentoring young lawyers in a world where we have limited face-to-face contact with young lawyers due to the pandemic. Led by Past President Jeff Leon and former Regent Christy Jones, the Mentoring Task Force is seeking ways to involve Fellows, the judiciary, and corporate legal departments in effective mentoring programs. Social scientists tell us that helping others is a way to address not only the needs of those being helped, but also to create satisfaction and a sense of wellbeing in those who seek to help. As Jeff and Christy work to develop these programs, I hope you will be open to participating in their work and mentoring young lawyers. I also hope you will read Jeff and Christy’s description of their efforts in this issue of the eBulletin. 

We are also addressing issues specific to the College that were created or exacerbated by the pandemic. The number of nominees considered by the Board over the last year has decreased by one third. With trials being limited, and primarily virtual, there is limited opportunity to identify and nominate lawyers worthy of Fellowship. Past Presidents David Beck and Sam Franklin have focused on this problem and are working with the Admission to Fellowship Committee to address the issue by looking harder for great trial lawyers, but never reducing our standards. Please take time to identify and nominate trial lawyers whose talent, ethics, and collegiality merit Fellowship.

Registration for the Spring Meeting is now open. Unfortunately, the Spring Meeting is again virtual and not in person in Maui—one of our most popular meeting sites. President-Elect Mike O’Donnell has put together a great group of speakers on a variety of topics. As we recently announced and in a first for the College, we will be addressed by former President Bill Clinton. I hope you will support the College and register to attend.  It will be a great meeting.

Rodney Acker
ACTL President

Register Today and Join Fellows for the Virtual Spring Meeting

General Session - March 4^th & 5^th

President-Elect Mike O'Donnell has lined up an impressive list of speakers ranging from a former President of the United States to the most decorated fighter pilot since Vietnam to a Fulbright Global Scholar.

Topics will include:

• A Tour Through the NFL: A Team Physician's Perspective
• Quarantine: The Reach and Limits of Government Action
• Access to Justice in the Time of COVID
• An Interview with a Four Star General and Former Commander of Northcom and NORAD

Continuing Legal Education - March 3^rd
The College has again partnered with the Supreme Court Historical Society to bring you an engaging CLE program, 25th Anniversary of the VMI Case: Remembering Ruth Bader Ginsburg and the United States v. Virginia. This program features Ted Olson, FACTL, Professor Paul Bender, then United States Solicitor General, and two of Justice Ginsburg's law clerks who assisted in preparing the majority opinion.

Get Ready to Mix and Mingle - March 3^rd
Join President Acker and First Lady Judy Acker as they kick off the College's first-ever Virtual President's Welcome Reception.  This will be a fun hour for Fellows and their spouses/guests to mix and mingle in their jurisdictions.  The reception will begin with our resident mixologist, Donny Clutterbuck, who will guide us through shaking up our cocktails before toasting and moving off to our breakout rooms. President and Judy Acker will visit the jurisdictions to offer their greetings and to see old friends and make new ones. 
To ensure you receive your cocktail box (included in your registration fee), please register by February 15th.  

Don't miss out!


You can view a complete list of speakers, CLE information and more information regarding the Virtual President's Welcome Reception by clicking here.

Questions? Email: actlmeetings@actl.com.

 

Remedying an Immigrant Incarceration Crisis…
One County at a Time

The information presented in the grant application of the Immigrant Justice Corps (“IJC”) was stunning to many of us on the Foundation Board, and I venture to guess that it will be for many of you, too:

• More than 1,200,000 cases are pending in immigration courts, with one-third of the detained immigrants unrepresented.
• Seventy-four percent of those detained immigrants who are represented by counsel have a successful outcome in their immigration cases, contrasted with three percent of unrepresented detained immigrants.
• Up to sixty-nine percent of detained immigrants in Maryland (the focus of the IJC’s pilot project) are forced to proceed without representation in immigration court because they cannot afford counsel and the government is not obligated to provide counsel at public expense.

In short, with regard to detained immigrants in the United States, we are not just facing an access to justice crisis, we are confronting a humanitarian crisis. Almost seven million children who are themselves United States citizens under the age of 18 live with a parent or other family member who is undocumented, and therefore at risk of deportation. For those children with a parent detained or deported, an average of 70 percent of their household income will be lost within six months of the parent’s removal and incarceration. 
 
It is little wonder, then, that in September of 2020 the IJC launched a two-year pilot program to place Justice and Community Fellows, comprised of newly minted immigration attorneys and advocates, in Prince George’s County, Maryland. These Fellows are serving, and will serve, immigrant residents of that county who have been incarcerated by Immigration and Customs Enforcement (“ICE”), in an attempt to close the representation gap.  In addition, the program is designed to provide data confirming that universal representation does indeed lead to better outcomes. The goals of the pilot project are lofty, but they are also achievable because of the small scale. If it succeeds, this would be the first, or one of the first, systems of universal representation in immigration court. At the same time, the project is expected to build “a pipeline of legal talent representative of the communities being served to increase access to justice,” while collecting data to support the necessity of universal representation nationwide.

While our immigration policies may change with the new administration in Washington, those who are already incarcerated, as well as those whom ICE will continue to detain even if under new guidelines, remain entitled to access to justice. The very fact that the success rate varies so markedly for represented detainees as contrasted with unrepresented detainees demonstrates that true access to justice requires competent and committed legal representation.

The needs are so great, and we need your help now. You can donate today at actl.com/donate.

Because justice can’t wait...

Thank you.
 
Joan A. Lukey
President

 

Advocacy in the 21st Century

The Committee has been busy updating and creating papers providing guidance on trial practice during the pandemic, as well as addressing constitutional challenges presented in the criminal law context, as detailed in President Acker’s message above.

Boot Camp Trial Training Programs 

The Boot Camp Committee is alive and well, and has converted its full-day program to virtual presentations. The first such presentation was for young lawyers in Salt Lake City and involved lectures, demonstrations and panel discussions, presented over three days in January 2021.  Attendance was robust, with over 250 young lawyers. The Committee for the first time shared with the attendees the link to the ACTL free library for young lawyers. The success of the program was in large part due to the leadership of Fellow Andrew Morse and the excellent Fellows and members of the Bench whom he selected for the Program. The Committee’s next virtual program is scheduled for February 4^th for Cincinnati young lawyers under the leadership of Fellow John Gilligan.

Complex Litigation 

Continuing its series of published practice guides, including the Use of Demonstrative Evidence and Anatomy of a Patent Case, the Committee is fast at work completing a handbook on electronic evidence. The handbook will explore the challenges facing practitioners and judges in ensuring the authentication of electronic evidence at trial. While the ever-changing technological world can pose challenges for authenticating electronic evidence, this handbook explores how the Federal Rules of Evidence actually provide a solid framework that can be adapted and applied to electronic evidence. The handbook, meant to be used as a guide by both attorneys and judges, explores the law concerning authenticity of evidence and how it can be applied in the digital age to things such as social media, the internet of things, and geolocation data, to name a few. It explores concerns unique to electronic evidence, including the source of the data, who has access to that source, whether the sources records data accurately, and the relative security of the source of the data, among other things. The handbook walks through how to satisfy Federal Rules of Evidence 901 and 902 to authenticate electronic evidence by applying traditional factors in the digital age. It also explores the impact the electronic nature of the evidence has on satisfying other evidentiary rules related to things such as relevance and hearsay.
 
All of this is analyzed with an eye toward providing a useful framework that trial lawyers and counsel can use to authenticate and admit new forms of electronic evidence to keep the courts apace of society, while also arming judges with the tools necessary to evaluate the authenticity, reliability and completeness of that evidence so a determination can be made whether to admit that evidence, and to assess its probative value.

The Committee is in discussions with regards to the publication of the handbook, which we anticipate we will release in collaboration with the Federal Judicial College.  The Committee is grateful for the many Fellows of the College who have contributed to this work by participating in focus groups along with federal judges to review and give input on our draft.

Federal Criminal Procedure

As announced by President Acker in December, the Federal Criminal Procedure Committee issued a statement calling for a moratorium on the executions of four federal death row inmates.  The Committee expressed concern that the imposition of the death penalty during the pandemic is not appropriate given the access to counsel issues created by the COVID-19 pandemic. The number of COVID cases is significantly higher in prison, and that severely restricts the ability of counsel to meet with defendants to prepare petitions for clemency.  The Committee’s full statement is available here.

Gale Cup Moot Court Competition (Canada)

The College is a co-sponsor, along with the Criminal Lawyers’ Association, of the Gale Cup Moot Court Competition, Canada’s bilingual English and French national moot focusing on cutting edge criminal and constitutional law issues. This year’s competition will take place on February 26^th and 27^th, and will be held virtually due to the pandemic. Nonetheless, the moot will offer a unique experience to the law students competing in it. Three Justices of the Supreme Court of Canada will preside over the final round, and President Rodney Acker will present medallions to the top oralists and the trophy to the winning team. 

Meanwhile, the Committee’s plans to revitalize the moot continue. Those plans include rebranding the competition the “Abella-Gale Cup Moot” in honor of retiring Justice (and Honorary College Fellow) Rosalie Abella and moving it from Toronto to the nation’s capital, Ottawa.

National Moot Court Competition (U.S.)

In collaboration with the New York City Bar Association, the Committee completed regional moot court competitions, completely virtually. The competition included 14 hosts, 15 regions, dozens of technicians and volunteers, 151 teams, more than 220 rounds, and more than 300 law students. The Committee is grateful for the excellent participation by Fellows throughout the country.

The semifinal and final rounds will be held, again virtually, the week of February 1st. President Acker will participate in the final round, along with an esteemed panel of state and federal judges and practitioners. The Committee has also formed a long range planning subcommittee to recruit more schools to participate and promote more engagement by Fellows.

National Trial Competition (U.S.)

Along with the Texas Young Lawyers Association, the College jointly sponsors this highly regarded competition every year. This year’s regional competitions will begin this month in 15 regions across the country. For the first time, all of the competitions will be held virtually.  Despite the logistical challenges, Fellows will be able to serve as judges from the comfort of their own home or office.  Fellows interested in serving as a judge may contact NTC Committee Chair, Fellow Susan Phillips.

The National Competition, which will feature some of the finest soon-to-be young trial lawyers, is planned for April 8^th - 10^th, 2021 and will also be held virtually. Hope springs eternal!

Sopinka Cup Trial Advocacy Competition (Canada)

The Sopinka Cup, Canada’s most prestigious national trial advocacy competition, will be held virtually this year on March 18^th - 20^th. Members of the Sopinka Cup Administration Committee (SCAC) will participate as judges, assessors and feedback providers. Virtual regional competitions between law schools across the country will determine the final roster of teams by February 20^th.  The SCAC is confident competitors will continue to be inspired by the art of advocacy.

Teaching of Trial and Appellate Advocacy

On December 4^th, 2020, under the joint sponsorship of the Temple University School of Law and the Pennsylvania State Committee, the fourth annual Masters of Litigation program was presented to more than one hundred participants. The program provided four hours of CLE credit while teaching advanced advocacy skills in the areas of ethics, evidence, courtroom technology and virtual litigation in the time of pandemic. The annual program is designed for lawyers of all practice areas, but places special emphasis on providing training for public service and public interest lawyers by funding their tuition through a grant from the Foundation of the College. The founding force for the program is Professor of Law Jules Epstein of Temple Law who was a presenter along with Fellows Kenneth Murphy, Catherine Henry, Thomas J. Duffy, Robert Welsh, several faculty members from Temple, and the Honorable C. Darnell Jones of the United States District Court for the Eastern District of Pennsylvania.  Fellows Nancy Gelman, Joseph Crawford, Linda Hoffa, William Ricci, Catherine Recker, and John Conti and John McShea, state chair and vice chair, respectively, have acted as course planners and presenters committed to the long-term success of the program. Presented in prior years on Temple’s campus, this year’s program was entirely remote using Temple’s IT facilities.

Fellow Engagement Task Force

President Acker has created a Task Force on Fellow Engagement to review the findings and implement the recommendations of the engagement process review conducted by McKinley Advisors. The Task Force, led by Fellows Cal Mayo and Michelle Awad, will initially focus on refining and defining volunteer roles, and creating a centralized and accessible clearinghouse for this and other information on volunteer opportunities and expectations. The Task Force expects to present its first recommendations for consideration by the Executive Committee and the Board of Regents during the upcoming Spring Meeting.

Mentoring Task Force

President Acker has asked Past President Jeff Leon and Former Regent Christy Jones to help renew the excellent efforts of the Mentoring Task Force to find ways to promote the mentoring of young trial lawyers. Indeed, the need for young trial lawyers to be able to learn trial skills and the importance of civility in trial practice has become even more acute with the lack of face to face contact necessitated by the pandemic. The 2019 Task Force Report Mentoring the Next Generation of Trial Lawyers—Developing Excellent Trial Lawyers in an Era of Diminishing Trials, provided a blueprint for the College and Fellows, with multiple recommendations for law firm/in-house trial training programs, bar associations, the judiciary, corporate counsel and the College itself. To date, Jeff and Christy, along with the Chairs of several College Committees are considering:

• developing a program for contacting corporate counsel for assistance in providing experience and making available in-court opportunities for junior trial lawyers
• organizing and making accessible teaching materials to help junior trial lawyers in need of mentoring (particularly to those who do not have access to the programs offered by many law firms)
• organizing and making accessible to the Judiciary in the United States and Canada a catalogue of initiatives undertaken by courts in various jurisdictions that offer increased opportunities for junior lawyers to appear in court, to make submissions and to examine and cross examine witnesses
• promoting wide circulation of papers produced by the College’s Task Force on Advocacy in the 21st Century that would be of particular interest to junior trial lawyers in providing direction on effective advocacy in virtual hearings
• in addition to publicizing and making available the College’s existing trial and appellate skills video programs on a broad basis to the legal profession, developing programs, videos, vignettes and other teaching aids on particular topics such as “confronting your fear in the courtroom”, “advocacy tips for dealing with difficult witnesses, judges and opposing counsel” and “the importance of civility in trial practice”; and
• encouraging fellows to find new ways to mentor during the pandemic (when there is less opportunity for younger lawyers to observe and interact with more senior counsel) and to take advantage of potential increased opportunities in virtual hearings to give junior counsel a meaningful role.

In order to be effective, all of these initiatives will require the assistance of Regents, State and Province Chairs and Committees.  Stay tuned for more information. There will be many opportunities to get involved and we hope you will be an active participant and join the “Mentoring Challenge”.

 

Samuel E. Gates Litigation Award
To honor a lawyer or judge, whether or not a Fellow of the College, who has made a significant, exceptional and lasting contribution to the improvement of the litigation process.  The person selected might be a trial practitioner, a judge, a teacher, a writer, a legislator, an administrator, or initiator of organizations or programs, or some other person whose work has been substantively significant or who has inaugurated or advanced significant programs.  To view past recipients, click here.
Chair: Hon. Roy B. (Skip) Dalton, Jr.

South Carolina Fellows pledged $100,000 over a five-year period to the USC School of Law for naming rights to a seminar room.  The Fellows met and exceeded their pledge in three years!  The Fellows plan to decorate the room with information and memorabilia about the College and its South Carolina Fellows.

NATIONAL MEETINGS

2021 Spring Meeting
March 3-5, 2021
Virtual Event

2021 Annual Meeting

REGIONAL MEETINGS

Northwest Regional Meeting 
(Alaska, Alberta, British Columbia, Idaho, Montana, Oregon, Washington)
July 8-11, 2021
The Hotel Alyeska
Girdwood, Alaska

Tenth Circuit Regional Meeting
(Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming)
August 26-29, 2021
Ritz Carlton, Bachelor Gulch
Avon, Colorado

Downstate New York Fellows Meeting,  Tuesday December 15th, 2020:  President Acker attended the Downstate New York Virtual Meeting, hosted by New York Chair Rich Strassberg. 

Rich gave a short welcome and then introduced President Acker for his scheduled remarks.  President Acker spoke about the work of the Advocacy in the 21st Century Committee, the Fellow Engagement Project, and the College’s focus on mentoring.
 
Regent Larry Krantz then introduced the main speaker. The speaker was Larry’s former law school professor and then federal Judge Leo Glasser, EDNY. Larry was the Judge’s first law clerk. Judge Glasser is 96 and beloved in New York. The program was a pre-recorded 45 minute fireside chat interview with Judge Glasser. Larry took us through Judge Glasser’s career beginning with his parents' immigration to the U.S. from Russia in the 1920s, life as a young boy in NYC, fighting in WWII and then his legal career. The presentation included family photos from along the way.
 
Following the fireside chat, Judge Gleeson gave some remarks. It was clear that not only the Fellows, but also the other EDNY judges hold Judge Glasser in high esteem. Following Judge Gleeson’s comments, there was a brief Q & A which consisted mostly of congratulations to Judge Glasser from the Fellows, including Past President Bob Fiske.  
 
The meeting concluded with Judge thanking the group and commenting how much he respected and appreciated the ACTL.

Ontario Fellows Virtual Holiday Event, Thursday, December 17, 2020:  The Ontario Fellows held a holiday Zoom meeting, hosted by Chair Pat Santini.  Although the meeting was scheduled on short notice, it was well attended.  The crowd was lively, and it was obvious that the group has a great deal of affection for each other.  

Pat started the meeting with a bartender from a famous local bar in Ottawa.  The bartender was entertaining and gave the recipe and a demonstration on how to mix two festive holiday cocktails.  

Regent Sandy Forbes spoke briefly to the group commenting how she missed everyone and how good it was to see everyone even if just on camera.  Sandy then introduced President Acker to say a few words.  Rodney tried his hand at “happy holidays” in French (as provided by Pat Santini) and that gave everyone a good laugh.  President Acker then gave a brief summary of the ongoing work of the College, including Advocacy in the 21st Century, The Fellow Engagement project and the status of the Spring meeting.  Rodney gave particular attention to the task force on mentoring that is being co-lead by former President Jeff Leon and former Regent Christy Jones.  Jeff Leon was in the audience.

The group was then divided into 2 breakout rooms—Ottawa and Toronto—where the Fellows engaged in great conversation and catching up.

Alabama
Robert G. Tate, ’89, Birmingham, January 9, 2021

Alberta
James E. Redmond, QC, ’82, Edmonton, January 9, 2021

British Columbia
Joseph J. Arvay, Q.C., ’12, Vancouver, December 7, 2020

California
Paul H. Coffee, ’84, Ventura, November 19, 2020
John F. Van De Poel, ’78, Orinda, July 30, 2020

Florida
David B. King, ’98, Orlando, December 18, 2020

Illinois -Downstate
Stuart R. Lefstein, ‘83, Rock Island, December 26, 2020

Minnesota
Robert T. White, ’79, Stillwater, December 8, 2020

Mississippi
William F. Goodman, Jr., ’72, Jackson, January 7, 2021

Missouri
Walter D. McQuie, Jr. ’76, Montgomery City, January 17, 2021

New Hampshire
Thomas H. Richards, ’88, Sunapee, October 20, 2020

New Jersey
David A. Parker, ’78, Marlton, January 8, 2021

New York - Downstate
Sheldon H. Elsen, ’86, Scarsdale, March 27, 2020

Ohio
Charles W. Kitchen, ’79, Broadview Heights, November 7, 2020
Patrick F. McCartan, Jr., ’76, Cleveland, November 30, 2020
Forrest A. Norman, ’82, Hudson, June 5, 2020

Texas
V. Bryan Medlock, Jr., ’07, Dallas, December 11, 2020