August 2012

Arizona Superior Court for Pinal County

Yesterday, a press release came to my inbox, and it took me a moment to realize that it signaled a historic event.

Typically, when the State Bar of Arizona seeks lawyer applicants for an appellate court or trial court appointment commission, it is a routine event (though it is a prestigious appointment). For example, the Maricopa and Pima County Trial Court Appointment Commissions have been around a long time. In the decades since the merit-selection and retention system was instituted in 1974, many lawyers have served the state by participating in the work of those boards.

(For more detail on merit selection, go here.)

So when something’s been operating for almost four decades, I hope you’ll forgive me for almost missing a related press releases as it sails by me. To my surprise, I spotted the fact that this is not more of the same, but it is about a new commission entirely: the Pinal County Commission on Trial Court Appointments. With that commission, Pinal County joins the ranks of more-populous Arizona counties in their manner of selecting state court trial judges.

The notion of extending the merit-selection system is not without controversy, but the change comes simply through an increasing population. Once the county exceeded 250,000 people, a commission would be formed, as required by the Arizona Constitution.

In the September issue of Arizona Attorney Magazine, we will have a great article on merit selection’s history and new developments, written by the State Bar’s CEO John Phelps and lawyer Kellen Bradley. In the meantime, read about this historic development in Pinal County. And if you are a lawyer in Pinal, you should consider applying to be part of the inaugural panel of this commission. There’s only one first.

Here’s the release:

Applications Being Accepted for Newly Forming Pinal County Commission on Trial Court Appointments

PHOENIX – Aug. 21, 2012 – The State Bar of Arizona, the State’s attorney regulation and consumer protection organization, is currently accepting applications to fill five lawyer openings on the Pinal County Commission on Trial Court Appointments. Results from the 2010 U.S. Census, which reported that the population of Pinal County now exceeds 250,000, triggered the constitutional requirement to create a trial court commission.

The newly forming sixteen-member commission will be responsible for screening, interviewing and selecting judicial nominees for submission to the Governor of Arizona for her appointment of superior court judges in Pinal County. It will be chaired by the Chief Justice of the Arizona Supreme Court (or her designee).

Applicants must be active members of, and in good standing with, the State Bar of Arizona; shall have resided in the state and been admitted to practice before the Arizona Supreme Court for no less than five (5) years; and must have resided in Pinal County for at least one year. There are no applicant restrictions with regard to one’s political party affiliation for these openings. 

Applications can be obtained at the State Bar of Arizona’s Appointment Committee webpage at Completed applications must be submitted to Nina Benham at the State Bar of Arizona by 5 p.m. on Friday, Sept. 14, 2012. Applications can be delivered in person to 4201 N. 24th Street, Suite 100, Phoenix, Arizona 85016-6266; or faxed to 602.416.7529; or submitted electronically via email to

About the State Bar of Arizona Appointments Committee

The mission of the committee is to recommend to the Board of Governors the appointment of members to fill openings on state-wide boards, committees and commissions. Achieve a “balance” in all appointments as they relate to each voluntary professional activity, i.e., age, gender, geography, ethnicity, area of practice. The Committee and the Board of Governors consider all aspects of diversity in their recommendations and appointments.

About the State Bar

The State Bar of Arizona is a non-profit organization that operates under the supervision of the Arizona Supreme Court. The Bar includes approximately 17,000 active attorneys and provides education and development programs for the legal profession and the public. Since 1933 the Bar and its members have been committed to serving the public by making sure the voices of all people in Arizona are heard in our justice system.


Today, more of a question than a talky talky post: Do any of you use an iPad for work?

I ask for a few reasons.

First of all, we are working on the October issue of Arizona Attorney, in which we’ll have some IT for lawyers content. And unlike last year, when we had an iPad story, we don’t have one this year. A reason for that was that no one ever said to me, “Right on, finally some content for the iPad lawyer!”

I would have been happy even without the “Right on.” But it was pretty quiet out there.

Another reason is that I came across this great article, which explains some nifty ways to present using your iPad. That made me think, we should have done something like that in the upcoming issue. But then I remembered my first point above, and I wasn’t so sure.

At home, we have a few iPads, and they are terrific. But it hadn’t really crossed my mind to use them for work stuff, let alone in presentations.

So how about it? Do you use one for work?

Tougher questions now: Have you used them for courtroom presentations?

Would you?

Gary Marchant

Last week, the law school at Arizona State University announced the news that it had been awarded a substantial grant aimed at research into personalized medicine—specifically, the liability issues that flow from it.

The almost-$900,000, three-year grant goes to a team led by Gary Marchant, a professor at the school. The grant was made by the National Institutes of Health’s National Human Genome Research Institute. His project’s title is “Liability in the Delivery of Personalized Medicine: Driver, Impediment, or Both?”

In the school’s press release, Professor Marchant is quoted:

“Liability is likely to be an increasingly important driver of personalized medicine, but it can be a double-edged sword. Our goal in this project is to first understand the dynamics and likely trajectory of liability in the field of personalized medicine. We then will try to shape liability impacts to be a positive rather than detrimental influence on the deployment of personalized medicine technologies and knowledge.”

More from the announcement is here.

National Institutes of Health logoIf you read Arizona Attorney Magazine, you have read Gary’s work before. (Professor Gary Marchant is the ASU Lincoln Professor of Emerging Technologies, Law and Ethics at the Sandra Day O’Connor College of Law, and Faculty Director of the College of Law’s Center for Law, Science & Innovation.)

Gary’s collaboration with us at Arizona Attorney came in 2007, after he and I “met” on a national telephone conference on the topic of personalized medicine. Pleased to hear another Arizona voice on the conference call, I sent him an email while we all chatted. He followed up by graciously agreeing to write something on the topic for us.

The result was an October 2007 cover story on personalized medicine. In that article, he included a substantial portion on liability issues, so we may have gotten a preview of his study’s focus. Here is some of what he said then:

“One looming legal issue is the potential liability risks that PM may present for pharmaceutical manufacturers, genetic test providers and health care professionals. …

“All drug manufacturers now routinely collect genetic information of patients enrolled in pharmaceutical clinical studies. A manufacturer may face liability if these data show that certain genotypes are more susceptible to adverse side effects to a drug that is subsequently marketed without adequate genetic warnings. Drug manufacturers are legitimately concerned that genetic data of unknown or ambiguous significance at the time it is collected will be seen in hindsight by a jury in a product liability case many years later, relying on new evidence available at the time of trial, as evidence of a genetic susceptibility for which a warning should have been provided. Drug manufacturers are also concerned that pharmacogenomics will limit the sales of their new blockbuster drugs to specific genotypes within the population, and may be vulnerable to “failure to test” claims if they do not diligently investigate potential genetic susceptibilities to their drugs that may reduce their market by 50 percent or more. …

“Health care professionals are likely the most vulnerable to liability risks associated with PM. State-of-the-art diagnosis, prognosis and treatment of disease will increasingly rely on genetic characterization of the patient and his or her disease. Yet many doctors lack any training in genetics. And even those who have understanding lack the infrastructure and guidance needed to effectively use the pharmacogenomic information that is increasingly appearing on drug labels. … As the nation’s leading medical institutions implement new PM tests and knowledge as they emerge, the standard of care will shift rapidly, leaving many physicians behind. These doctors may increasingly face the risk of lawsuits if they fail to consider genetics adequately when prescribing a drug with known severe side effects or recommend the wrong course of treatment for a tumor with a genetic profile suggesting a different approach.”

To read Gary’s complete insightful cover story, go here.

Congratulations to Gary, and to the law school. We look forward to the results of the study, which should yield insights for policymakers and lawyers alike.

David Remnick, The New Yorker editor in chief who carves out time to write

David Remnick, The New Yorker editor in chief who carves out time to write

The role of magazine editor ain’t exactly digging ditches, as a sometime-friend has advised me. And he’s right: My work tasks never involve picks, hoes or laying pipe. A fellow appreciates that, especially when the Phoenix temperatures hit 116 or so.

But (you knew a “but” was coming) sometimes when I face a stack of documents requiring close scrutiny, or when I have to somehow trim a lawyer’s sentence that is as long as a page, or when I must decide whether an attorney’s success on the tennis court is really (really?) worthy of inclusion in the People column … then, I begin to gaze out the window into the shimmering heat island and think, That’s not so bad.

Of course, that’s just temporary insanity, because I’m always able to remind myself of an important fact: Despite an ever-flexible list of “Other Tasks as Assigned,” I am, to a large extent, paid to write. So, dammit, stop gazing out the window.

That fantastic job benefit comes to mind on this Change of Venue Friday, as I think about the recent new-President profile I was privileged to write last month. And I am reminded every year that although that annual profile holds its challenges, it never fails to be a rush to interview people about important matters, and then to transform those conversations into something—occasionally—revealing.

The “revealing” part of the profile-writing job can make you feel you’re on a ledge, let me tell you. For it is straightforward enough to put someone’s resume into narrative form—and I’ve done that, when on a short deadline. But to go beyond, and to say something essential and insightful about a person, requires a large investment of time and energy. It requires that a writer become so conversant about the subject that she or he can confidently draw some conclusions—conclusions that may not be inked in the four corners of a notepad, or uttered in the stream of anecdotes from secondary interviews.

Besides the views into Bar leaders, I’ve gotten quite a few chances to write profiles, and I always feel like I have more to learn. And one way I aim to learn is by reading as many profiles as I can. One of my favorite spots to locate fantastic, rip-out-and-save profiles is The New Yorker. I routinely find myself drawn into a profile on a topic or on a person for whom I have had zero interest before I opened the magazine. But before I know it, I’ve encountered a new favorite “true story.”

The idea of the best profile being a “true short story” is an ideal, and it comes from a terrific magazine editor. If you have a few minutes on this Friday, watch this brief video with David Remnick, New Yorker editor in chief, on “The Art of the Profile.” I have to agree with his assessment of how fortunate the profile-writer is. For, as he points out, writing is an opportunity to carve something artful from what is almost always a mundane task-list of a day. Much better than ditch-digging.

If you’re in a hurry, here is some of Remnick from the video:

“Let me be honest with you: You’re failing all the time, all day long, all week long, all year long. And when you can write something, and publish something, do something out of the ordinary, that is a little funny, or a little insightful, or more artful, maybe—maybe maybe maybe—you don’t disappoint. I think constant disappointment is a very good spur to sometimes doing something halfway decent.”

“If you’re really self-satisfied all the time, you probably are a lousy writer.”

Or a lousy lawyer, chef, or ditch-digger, I would guess.

(Remnick reminds me of writer David Rakoff, who passed away this week. Among many things, Rakoff was the author of Half Empty, a paean to pessimism.)

Let’s hear it for the creative power of disappointment! I wish for you an unsatisfying—but creative—weekend.

I recently described a national award that the Florence Project won. The legal services organization was recognized for its commitment to justice and its creation of valuable pro se materials.

The award, along with a $50,000 check, was given by the American College of Trial Lawyers.

Lindsay Marshall, Florence Project Executive Director, receives the award check from Thomas H. Tongue, President of the American College of Trial Lawyers, August 14, 2012.

On Tuesday, I took a drive down to Florence to attend the award event. It reminded me once again how fortunate Arizona is to have such dedicated individuals who daily commit to justice.

(Because the law world is so fascinating, I can’t help but share one oddity in the proceedings. A distinguished Fellow of the ACTL was speaking at the event, and he was emphasizing to the audience how impressive the achievement of the Florence Project staff and board was. He pointed out that it would be formally announced at the annual meeting of the ACTL. There, in a huge Manhattan banquet room, the Project would be described to hundreds of “trial lawyers and their wives.” Their wives? Did he just say “their wives,” as if women are not trial lawyers? Indeed, he did. But his genuine affinity for the Project and its mission—as well as the check he bore—guaranteed that bygones would be bygones.)

In an upcoming issue of Arizona Attorney Magazine, I’ll tell a little more about the day’s events (you can go directly to that page by clicking here). But in the meantime, you can see one photo above. More are available here on the Arizona Attorney Facebook page.

A Sept. 15, 2012 curling event will raise money for the Maricopa County Bar Association.Maybe it’s the unending Arizona heat. Or maybe it’s the curious U.S. affinity for most all things Canadian. Whatever it is, I am strongly considering taking to the ice to aid access to justice.

At an event in one month, on September 15, a select few will stroll onto an ice rink in a fundraiser for the Maricopa County Bar Foundation. And once they’re on the ice, they get to … curl.

Not up on your curling? Let Professor Wikipedia help you out. As the incredibly long and detailed “curling” entry opens:

“Curling is a sport in which players slide stones across a sheet of ice towards a target area which is segmented into four rings. It is related to bowls, boule and shuffleboard. Two teams, each of four players, take turns sliding heavy, polished granite stones, also called “rocks,” across the ice curling sheet towards the house, a circular target marked on the ice.”

The whole entry is here.

In a heat-defeating decision, the Foundation paired with the Coyotes Curling Club, and they decided that people may like supporting access issues. But they may like it even more if they can be cool and push huge and heavy stones about on the ice.

Well, that didn’t come out quite right, but you get the point. Oddly enough, Sisyphus faced an endless struggle to push a boulder up a hill. But you may be able to lighten others’ load by putting some muscle into a granite disk.

The chilly and fun opportunity is limited to the first 50 registrants—and no skates are involved! Shall I go? Will you?

Let me know.

Here is the registration form.

More about the Maricopa County Bar Foundation is here. And show a little warmth by liking the Coyotes Curling Club on Facebook.

And here is the location, and a map:

The Ice Den

9375 East Bell Road
Scottsdale, AZ 85260

Arizona Chief Justice Rebecca White Berch has issued a call for nominees for the judicial system’s highest awards. Nominations close August 24.

According to the Court, it “will present one award to each of the following groups: Probation, Limited Jurisdiction Courts, General Jurisdiction Courts, Individual Achievement in Accomplishing the 2010-2015 Vision, and one At-Large Award for outstanding contributions in meeting the goals of Justice 2020 A Vision for the Future of the Arizona Judicial Branch 2010-2015, as outlined in the Judiciary’s plan for continuing to improve public trust and confidence in the Arizona court system.”

More from the Chief Justice is here. Click here for criteria, and here for the nomination form.

And here is the Court’s strategic plan titled Justice 2020.

Chief Justice Rebecca White Berch

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