Lincoln_by John Holcomb

Abraham Lincoln would want you to share news of the State Bar’s great Law Day event. (painting by John Holcomb)

The State Bar of Arizona has a rich tradition of participating in Law Day, that annual national event reminding all of us how valuable the rule of law can be. And this year, they continue that commitment.

I have been privileged to moderate the Bar’s Law Day event a few times. In 2008, our topic was judicial merit selection, and we had a blast with a talented panel of speakers who are lawyers and judges. When I moderated, I had the chance to ask challenging questions that (I hope) led panelists to explore the topic fully.

I recall being offered a deep scowl when I devil’s-advocated a former Bar President panelist with the question, “So why not sign on to Senate confirmation of judges? Our current system came from Missouri, not from Moses.”

The next year, I was the moderator of our program centered on the screening of competing Law Day videos created by high school students. Much of it is a blur, but I do recall that I wore a beard and stovepipe hat to honor Abraham Lincoln. (Good times. No photo survives.)

So my Law Day affection is deep and abiding, and that’s why I am looking forward to this year’s offering by the Bar (no moderating required).

The Bar’s events will occur on Saturday, April 27, and they aim to provide the highest possible testimony to the value of our legal system—by providing actual legal information to those who need it most.

State Bar of Arizona logoThe very ambitious programming will cover four-plus legal topics, and the information will be provided at five locations around the Valley and in Tucson. There will be no charge.

More information on the clinics is here, or contact my colleague Alberto Rodriguez at 602-340-7293 or alberto.rodriguez@staff.azbar.org.

And if any lawyer-readers want to participate by offering her or his services, for one session, a half-day or (dare I ask it?) a full day, also contact Alberto. He is seeking lawyers who can provide information in the following focus areas: landlord/tenant; immigration (there will be sessions in both Spanish and English); divorce, child support and paternity; and bankruptcy and foreclosure. 

Abe Lincoln would have been proud.

And for those who join me in being pleased at the Bar’s commitment to legal services and the value of lawyers and law, let me share one anecdote that I read at my Law Day moderator gig in 2008:

“During the Suez Invasion of 1956, the British Prime Minister was careful to exclude opinions that disagreed with his approach. He specifically instructed that Sir Gerald Fitzmaurice, the very distinguished Legal Advisor to the Foreign Office, and who had strongly and consistently advised that the British action was unlawful, should not be informed of developments: ‘Fitz is the last person I want consulted. The lawyers are always against our doing anything. For God’s sake, keep them out of it. This is a political affair.’”

That quality—of independent and honest counsel—is more valuable and more in need than ever before. Remember to share around the Bar’s Law Day agenda and encourage participation.

stale-fortune-cookie

Cookies may be stale, but the message may last.

Three weeks may be too far past an event to report much value—that is, for most events. But a few speakers I heard in March—and failed to report on in a timely way—still yielded insights I believe are worth sharing. This cookie, as they say, ain’t stale.

The first event to share—the one most distant in time—is the annual Learned Hand Awards luncheon. As always, the three honorees were well chosen. And, in a Learned Hand tradition, just as much was expected of the introducer’s speech as was of the honoree herself.

Justice Scott Bales emceed, and he hit exactly the right note by honoring the anniversary of Gideon v. Wainwright. In a ballroom full of lawyers, the reference was spot on.

Nicole France Stanton at the Learned Hand Awards luncheon, 2013

Nicole France Stanton at the Learned Hand Awards luncheon, 2013

The first award—called the Emerging Leadership Award—went to Nicole France Stanton. Andy Sherwood explained her talented background, as well as her commitment to fight bullying and cystic fibrosis.

Stanton urged all lawyers to find their ethical center.

“Finding your voice as a leader at a law firm does not have to wait until you’re an equity partner,” she concluded.

Terry Fenzl introduces Terry Goddard.

Terry Fenzl introduces Terry Goddard.

Terry Fenzl took a more humorous tack in his introduction of the next honoree, Terry Goddard. He displayed—with accompanying ribbing—a photo of a boyish Goddard being sworn in as Phoenix Mayor in 1984.

But like Learned Hand, Fenzl said, Goddard always spoke up for the rule of law, in the fight over polygamy in a Utah border town, in the use of methamphetamine, in mortgage fraud.

Goddard used his speech indicate his gratitude—a commonplace in remarks like these—but also to hurl some political barbs.

“I remember I got to discuss constitutional law with Russell Pearce,” he said. “Maybe not the highest point of my career, but memorable nonetheless.”

He criticized the efforts of legislators to alter the law regarding recall elections, including making the new law’s effects retroactive.

“They claimed it was the will of the people,” Goddard said, “and not just trying to save Joe Arpaio’s behind.”

“Respect for the rule of law is not common in Arizona,” he concluded.

Charles "Chick" Arnold, 2013 Learned Hand Awards

Charles “Chick” Arnold, 2013 Learned Hand Awards

The final honoree was Charles “Chick” Arnold, of Arnold v. Sarn fame. It was his lawsuit that led to massive changes in the way the State of Arizona addressed the needs of it mentally ill residents.

Arnold’s advocate was Judge James McDougall, and he provided eloquent testimony as to Arnold’s fitness for the award. He recalled how the then-Maricopa County Public Fiduciary filed a class action suit on behalf of his 600 wards, demanding that the state live up to its statutory obligations to provide a “continuum of services” for those who had been deinstitutionalized.

The Maricopa County Board of Supervisors were angered by the action and fired Arnold—only to have to reinstate him after a separate lawsuit.

The stories reflecting courage were touching and remarkable. And that pointed out a fact that I should have noticed in covering years of Hand lunches: The speeches tend to get better and better as the lunch goes on. Not because the speech drafters vary widely in skill level—they all tend to be excellent writers. No, the difference comes from the vastness of life stories that the (usually) older lawyers can marshall.

And so the day opened with ethics and then moved seamlessly to the rule of law, featured by both Goddard and Arnold. Terry Goddard reflected on his career through the prism of that rule, and Arnold did also, always believing that his obligation to his wards trumped his duty to his employer. And for that, all of Arizona should be grateful.

Terry Goddard congratulates Chick Arnold following the 2013 Learned Hand Awards

Terry Goddard congratulates Chick Arnold following the 2013 Learned Hand Awards

Through planning or happy coincidence, the State Bar of Arizona Convention last week concluded with a focus on the big concepts that drive law and make attorneys and judges worthy of the label “professional.”

If any profession is to tease out and examine the necessary concepts that underlie it, a fine way to do that is to observe the profession under stress. For that reason alone, the remarks of the Iraqi Chief Justice were a superlative end to Convention.

Iraqi Chief Justice Medhat Al-Mahmoud

I wrote before about the visit to Arizona of Chief Justice Medhat Al-Mahmoud. If anything, his insights surpassed attendees’ expectations.

He was introduced by ASU Law School Dean Doug Sylvester, who reminded us that Iraq and its environs are not merely the cradle of civilization; they are the cradle of our legal system.

And then the Chief Justice, his Farsi translated by a dedicated assistant, explained what it was like to have that cradle overturned—and smashed to bits.

When the coalition powers dissolved the Iraqi security agencies, he said, those powers aimed to loosen the grip the agencies had on the people. To an extent, they succeeded. But the rule of law was eliminated, as well.

One of the most concrete examples of that elimination was the destruction of the Ministry of Justice by fire.

“But,” said the Chief Justice, “the judges wanted to go back to the court, sit at their desks and perform their duties.”

“The judiciary realized its role in bringing back the rule of law to Iraq, especially in the capital.”

This realization occurred, of course, when the nation was at war and risk was everywhere. Given that, a courageous focus on the rule of law defies belief.

“We had a willingness to rebuild this house, because we consider it ours as Iraqis; [it is] not the government’s.”

That will to rebuild came in the face of terrible personal sacrifice. The Chief Justice noted that in the process of rebuilding the judiciary, 49 judges were killed, and 132 other employees—prosecutors, public lawyers and others—were assassinated.

On June 12, 2003, the Chief Justice was named the Minister of Justice. His charge was to reestablish the judicial institutions.

That restoration is demonstrated by the numbers: In November 2003, he said, there were 575 judges in Iraq. In 2012, there are 1,328. And his first decision in the rebuilding? Bring back to the court women judges. Their numbers have jumped from 7 in 2003 to 76 today.

What drives an individual to face down danger in order to adhere to an ideal? For the Chief Justice, it comes down to each judge.

“The judge himself must believe in the independence of judges. He must believe in the principle of separation of powers. Without that, he cannot deliver justice.”

The Chief Justice concluded: “Success for justice in Iraq is success for justice all over the world.”

ASU Law School’s Daniel Rothenberg then spoke of the Chief Justice’s willingness to share credit with others. Yes, Rothenberg said, we should admire the “extraordinary quality of patriotism of all Iraqis who put their life on the line” in the pursuit of justice.

But, he added, we also must grasp how important the Chief Justice was to the rebuilding of justice.

Also speaking at the session was Tom Monaghan, a former United States Attorney for the District of Nebraska. His focus that afternoon was on his work from 2003 to 2005 in Kosovo as the U.N.-appointed director of justice.

For those lawyers who are interested in assisting in rule of law initiatives around the globe, panelists suggested they look here.

The day after Convention, I heard from an Arizona lawyer who was beyond pleased at the Chief Justice’s appearance at the event. I’ll end by letting her speak for herself:

“I decided at the last minute to attend the bar convention this year. I drove three hours to Phoenix, mostly to see this man speak, but not knowing what to expect. Well, I was in tears for a good part of his talk—something to do with his passion and sincerity and the beauty of spoken Arabic. But what really enthralled me was the realization that this little guy was a great big hero, because he resurrected the justice system in Iraq. I realized that you can live without electricity, or sanitation, or any of the other necessary amenities of civilized life for a lot longer than you can live without a system of administering justice. These two hours were really all I came for, and it was all I needed. Now I can go back to the practice of law, knowing that it really does make a difference, no matter how much money I make, no matter how tedious and frustrating. Thanks, state bar, for the inspiration. I needed that!”

Judge Pendleton Gaines, 1944-2011

It was reported this week that Judge Pendleton Gaines has died. That is a tremendous loss to many here in Arizona and around the country. And on this Change of Venue Friday, I recall an entirely enjoyable encounter I once had with Judge Gaines.

The occasion was Law Day in 2008. I had been asked by the State Bar of Arizona to moderate a panel discussion on the Rule of Law. (You always know a topic is important if it gets All Initial Caps.) It was to be held at the Maricopa County Supervisors’ Auditorium in downtown Phoenix, right next to the Superior Court.

Now, I enjoy that kind of gig, but I had to pause. The Rule of Law? The likely audience was (1) students from area elementary schools and high schools, (2) some lawyers, (3) some homeless people who like cookies, and (4) Superior Court Judges in need of COJET credit.

And, as they say, in no particular order. Would they even enjoy this?

I had to ensure that the panel would reflect a variety of viewpoints, for as panelists chatted about a political hot-potato like merit selection of judges, audience members might get riled if all the views were on one side. (“Merit selection” had been fighting words for a while by then, so much so that we titled our February 2006 cover of Arizona Attorney Magazine “Fair Courts Under Fire.” A few months later, another state bar magazine not too far away ran almost the identical cover—but that’s a story for another day.)

I also had to think hard about how we could make this interesting for a diverse group of people.

As it turns out, I think we got a “C+” on the first criterion; most of the panelists came down on one side of the issue. But on the second, we got a (self-graded) “A.” And Judge Gaines played a huge part in that.

The panel I moderated that day in April 2008 had panelists:

  • Barbara Rodriguez Mundell, Presiding Judge, Superior Court for Maricopa County
  • Maurice Portley, Judge, Arizona Court of Appeals
  • Pendleton Gaines, Judge, Superior Court for Maricopa County
  • Dan McAuliffe, State Bar President
  • Ed Novak, State Bar President-Elect

That’s a great group of folks to sit around and talk about anything. But on an issue like merit selection, they were fantastic.

Except for Penny Gaines, I had met and worked with all the panelists before. Judge Gaines, I met that morning.

Maybe that accounts for my pleasant surprise at the Judge. What he exhibited that day was a jurist’s calm, even when fellow panelists (yes, Dan, that would be you) grew impassioned and inflamed at some of my questions. (My favorite was when I asked why we couldn’t add Senate confirmation to merit selection. After all, “Our current system comes from Missouri, not from Moses.” Dan McAuliffe nearly leaped out of his seat at that one.)

Judge Gaines also brought a scholar’s dedication to the task. He had done a remarkable amount of research, and was able to provide facts, figures and anecdotes to our presentation. That took the conversation far beyond opinions and into the realm of education.

He had a courteous and courtly demeanor. Like other effective lawyers before him, he knew that his arguments carried more persuasive value when uttered with a considerate tone.

Finally, he had a dry sense of humor that lightened what could have been a dreary lunchtime meeting. But don’t take my word for it. Read (below) Judge Gaines’ 2006 “Rules on Pending Motions,” specifically his ruling on “Plaintiff’s Motion to Compel Acceptance of Lunch Invitation.” And do not skip the footnotes.

(A hat tip to Udall, Shumway & Lyons attorneys Candyce Pardee and Brian Allen for reminding me of this classic bit of legal humor from Judge Gaines.)

All of these are qualities that seem in short supply these days. I count myself as privileged to have gotten to work with the Judge on that occasion.

As we reported the other day, details on a memorial service for Judge Pendleton Gaines will be released soon by the Superior Court.

In the meantime, here is Judge Gaines, in his own writing:

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2003-020242

07/19/2006

Docket Code 019

CLERK OF THE COURT: A. Beery, Deputy

JUDGE PENDLETON GAINES

FILED: 07/21/2006

PHYSICIANS CHOICE OF ARIZONA INC. v. MICKEY MILLER, et al.

Counsel (Plaintiff): DAVID A SELDEN

Counsel (Defendant): DOW GLENN OSTLUND

DAVID ROSENBAUM

ROSENBAUM & ASSOCIATES PC

650 DUNDEE RD

STE 380

NORTHBROOK IL 60062

RULINGS ON PENDING MOTIONS

The Court has reviewed the pending motions. Two will be granted. The others will be deferred.

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to “Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case. The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel.1

[FN1: Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.]

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.”

There are a number of fine restaurants within easy driving distance of both counsel’s offices, e.g., Christopher’s, Vincent’s, Morton’s, Donovan’s, Bistro 24 at the Ritz-Carlton, The Arizona Biltmore Grill, Sam’s Café (Biltmore location), Alexi’s, Sophie’s and, if either counsel has a membership, the Phoenix Country Club and the University Club. Counsel may select their own venue or, if unable to agree, shall select from this list in order. The time will be noon during a normal business day. The lunch must be conducted and concluded not later than August 18, 2006.2

[FN2: The Court is aware of the penchant of Plaintiff’s counsel to take extended cruises during the summer months.]

Each side may be represented by no more than two (2) lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.3 A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS § 12-331(5).

[FN3: Alcoholic beverages may be consumed, but at the personal expense of the consumer.]

During lunch, counsel will confer regarding the disputes identified in Plaintiff’s motion to strike Defendant’s discovery motion and Defendant’s motions to quash, for protective order and for commission authorizing out-of-state depositions.4 At the initiative of Plaintiff’s counsel, a brief joint report detailing the parties’ agreements and disagreements regarding these motions will be filed with the Court not later than one week following the lunch and, in any event, not later than noon, Wednesday, August 23, 2006.

[FN4: The Court suggests that serious discussion occur after counsel have eaten. The temperaments of the Court’s children always improved after a meal.]

Defendant’s Motion to Strike Proposed Amended Complaint

To demonstrate to counsel that the Court has more on its mind than lunch, the Court has considered Defendant’s motion to strike Plaintiff’s proposed amended complaint. The motion will be granted.

Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme. It violates the Court’s order of July 22, 2005, permitting the Plaintiff to file “an agreed-upon form of Amended Complaint to clean up housekeeping matters.” It is not the “short and plain statement” required by Rule 8(a)(2). It is a pleading of a type specifically condemned in Anserv Insurance Services, Inc., vs. Albrecht, 192 Ariz. 48, 49-50 (1998) (trial court should have stricken 269-page, 1322-paragraph complaint). Most importantly, it violates the observation of French philosopher Blaise Pascal, who concluded a long letter with an apology, saying he “had not the leisure to make it shorter.” Since this is a 2003 case with no end in sight, Plaintiff’s counsel has the leisure to make his complaint shorter.

IT IS ORDERED:

1. Plaintiff’s motion to compel Defendant’s counsel’s acceptance of lunch invitation is granted on the terms and conditions set forth above.

2. The parties are directed to file the joint report referred to above.

3. Further action on the parties’ pending discovery motions is deferred pending receipt of the joint report.

4. Defendant’s motion to strike Plaintiff’s proposed amended complaint is granted.

5. The oral argument set in this division on August 2, 2006, at 9:15 a.m. is vacated.