VoirDire_Spring 2016 (002)

Voir Dire 

Volume 23 • Issue 1 • Spring 2016 

A PUBLICATION OF THE AMERICAN BOARD OF TRIAL ADVOCATES 

w w w . a b o t a . o r g

2017 2016 

2016 – 2017 Calendar of Events 

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members and others to whom Voir Dire is distributed: 

• Issues or events concerning the history and 

value of the right to trial by jury 

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• Issues or events concerning educating the 

public about the benefits inuring to society from 

attorneys who affirmatively support and steadfastly 

stand by our jury system 

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as practitioners 

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2016 Officers 

President 

Charles H. Baumberger 

President-elect 

F. Dulin Kelly 

Vice President 

Cynthia McGuinn 

Treasurer 

N. Denise Taylor 

Secretary 

William D. Shapiro 

Executive Director 

Brian W. Tyson 

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Editorial Board 

John M. Bickel, Chair 

Pedro Raul Alvarez, Jr. 

Stephen E. Arthur 

Christopher J. Day 

Luke Dove 

Christina M. Habas 

David Grant Halpern 

Jay Harris 

James M. Hartman 

Steven J. Kirsch 

Bruce R. Pfaff 

Timothy S. Richards 

David D. Towler 

Lish Whitson 

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Jack Wurgaft 

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Volume 23 • Issue 1 • Spring 2016 

Inside this issue 

9 

6 Toasts of Celebration, Acknowledgment and 

Remembrance — and Toasts of Hope 

The great ABOTA accomplishments — the American Civil Trial Bar Roundtable, the efforts toward civics 

education and advancement of constitutional ideals — were all made possible by the past innovators of our 

organization and our country. In reflecting on these leaders and their impact on the American judicial system, 

an ABOTA past national president invokes not only affection for the past, but optimism for the future, as the 

contributions and efforts of today’s leaders will continue to carry the torch in protecting shared values and the 

Seventh Amendment. 

— By John V. Phelps 

9 The American Jury 

This presentation stresses the real-life impacts of Constitutional rights and how the right to trial by jury is 

the foundation of those rights. From the Magna Carta to landmark cases throughout American history, 

Constitutional freedoms and the jury trial system continue to evolve and face adversities, demonstrating 

why it is incumbent upon all Americans to understand and value their contract with the government. 

— By Dicky Grigg, Guy D. Choate, Dan Worthington and Tim Newsom 

16 In the Interest of Full Disclosure: Balancing Duty of 

Candor with Courtroom Advocacy 

Modern trial lawyers are faced with a common challenge in identifying the balance between client advocacy 

and complete truthfulness with judges. Attorneys are tasked with a duty of candor as outlined by the American 

Bar Association’s Model Rules of Professional Conduct, and they should strive to uphold this duty to preserve 

individual and systemic integrity. Case study examples illustrate the importance of this duty for both lawyers 

and their clients. 

— By Judge Eric V. Moyé, Victor D. Vital and William R. Stewart 

20 Four Men. All Different. All Alike. 

A Former Reporter Turned Trial Lawyer Traces the Rule of Law. 

The author goes back 50 years in Birmingham, Ala., a troubled place trapped in a tumultuous time. Starting 

as a reporter for the Birmingham Post Herald, he recounts his personal journey from newspaper reporter to trial 

lawyer by highlighting the individuals who shaped his career at each stage and instilled in him the values of 

civility, honesty and respect. 

— By W. Michael Atchison 

26 Distinguishing Due Care from Standard of Care in 

Medicolegal Cases — Does it Matter? 

The strategies and implications of medical malpractice lawsuits continue to evolve with changes in our world. 

A neurosurgical expert witness discusses the roles of liability-focused due care and professional-focused standard 

of care in these suits — demonstrating examples where the two concepts may be difficult to distinguish, and how 

they may affect the approaches, opinions and judgements for judges, attorneys and witnesses. 

— By Robert A. Beatty, M.D. 

28 The Importance of Civility in the Legal Profession 

The Chief Justice of the Minnesota State Supreme Court stressed the importance of holding attorneys and judges 

to the highest professional standards and the impact behavior has on the public’s view of the court system. 

Maintaining a fair, impartial and respected judiciary relies heavily on civil discourse through treating each case 

respectfully, circumventing the pitfalls of competition, and teaching the importance of civility to fellow and 

future attorneys. 

— By Chief Justice Lorie Skjerven Gildea

Continuing Legal Education 

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Toasts of Celebration, 

Acknowledgment and 

Remembrance — and 

Toasts of Hope 

By John V. Phelps 

John V. Phelps of the Arkansas 

Chapter served as the 2006 National 

President of the American Board of 

Trial Advocates. On Jan. 16, 2016, 

he delivered a toast at the National 

Board of Directors in support of 

the Seventh Amendment and the 

American Civil Trial Bar Roundtable. 

We celebrate and toast what you 

have done and what we have done 

together. 

First, there are those who say 

that lawyers who rely on jury trial 

availability are disparately aligned 

and selfishly motivated, according 

to their separate economic interests 

and concerns. But, I toast and say, 

let them come to the American Civil 

Trial Bar Roundtable, where the 

most competitive and distinguishable 

organizations sit round the same table 

of courteous and civil discussions 

and focus instead on common values 

of ultimate and non-discriminate 

justice. 

The shared idealism of our 

better instincts. 

A gathering where the promise 

of private consensus is sought, not 

because it is profitable, but because 

it is right. An ongoing discussion that 

brings determination to an otherwise 

discord of sharp-edged chaos. 

An ongoing expression that 

documents a mutual intent. 

An ongoing revitalization of our 

shared professionalism. 

Not because it is convenient, 

not because it is even necessary, and 

not because it is mandated by any 

outside source. 

But only because it was the 

creation of ABOTA’s perception of 

need, no matter how difficult the 

hope. 

After all, we are the generation 

that chose to go to the moon and do 

the other things not because they are 

easy, but because they are hard. 1 

Why shouldn’t we bring those 

who are different together? 

And so we toast the 

commitment of Michael Colley and 

Claude Smart. 2 And those prescient 

founders who infused the creation 

of the Roundtable — and who made 

your financial contributions more 

akin to the extension of gifts of 

presents for which you shopped and 

chose. 

After all, there is no tax benefit 

to infuse this effort. Only the total 

intent to part with yours for the 

benefit of others. 

And because he was there at 

each of my nine meetings, I toast the 

smiling memory of Jim Gilwee. 3 

Therefore, this toast and the 

balm of its intent is for you, and to 

you, and for all those who will live 

beyond the horizons of our lives. 

But never beyond the horizons of 

our ethos. 

This toast is to you. 

Second, there are those who say 

that the politics inside the Beltway 

are beyond the understanding and 

involvement of ordinary citizens like 

ourselves. That there is too much 

angst, dysfunction and disrespect 

for any one of us to have significant 

access to the inner intentions, the 

inner workings, and the concealed 

agendas of a government so 

willingly susceptible to the strident 

voices of those more wealthy and 

hence more powerful than we are. 

Citizens United did not produce a 

more united citizenship. And so, in 

answer to each such circumstance, I 

toast a friend. 

We understand what is 

happening in government because 

it is told to us clearly and concisely 

through prose wrapped in the 

idealism of annotated explanations, 

experiences, and memories. Perhaps 

if we tried hard enough, and wrote 

enough, and called enough, we could 

learn some of this ourselves. But 

if we investigated alone, we would 

be denied the easy wit, the fullface 

smile, the devilish delight, the 

distinctive discernment, and the 

convivial affection and urbanity of 

William H. Edington. 4 And so this 

toast is for him. 

And, I remind you in passing 

that had not Virginia approved the 

Constitution in large part because 

of the inclusion of the Seventh 

Amendment, America would have 

been denied Presidents Washington, 

Jefferson, Madison and Chief Justice 

Marshall. Only ratifying states were 

allowed Constitutional Officers. 

And so I toast what the Seventh 

Amendment gave to our founding 

history. 

Given all these historical and 

still active truths, how can we step 

back and fail to do our part? 

So again, I toast the common 

and shared hopes and dreams 

that still invigorate our best intentions 

6 

Spring 2016 • Voir Dire

and frame the private parameters of 

our single souls. 

In like manner, if I wanted to 

toast only the personifications of the 

heart and soul of ABOTA’s past and 

present dreams and momentum, I 

would turn toward the deities that are 

the pilasters of ABOTA’s Parthenon 

and raise my glass to Lewis Sifford, 

Gordon Rather and Pat Simek. 5 

But their service alone is 

insufficient for our present need, 

and so I want most to toast the spirit 

of generosity of each of you; as I turn 

to the continued need for your quiet 

financial contributions to support 

this outreach to justice. 

It is the spirit of the gift that 

exponentially defines its ultimate 

effect; for gifts of duty, obligation 

and demand drop cold from the 

hand of delivery and do not warm 

the idealism, which must carry them 

along. 

All our precious things, all our 

precious rights, and all our precious 

hopes are held only by a fingertip of 

affection and never by the grasp of 

covetous force. 

It is only those things, which 

can so easily slip away that provoke 

our strongest love. 

A fingertip away from loss. 

The Seventh Amendment is 

such a thing. 

And so I close with an 

overwhelming deference and toast 

to the generation we represent but 

which daily winks itself out along 

the fading time line of our lives. 

We may not have been the 

greatest generation, but we have 

always been the most idealistic and 

the most romantic. 

And so, I toast the rest of that 

journey for each of us. But during 

that journey’s interim please give 

and contribute money again to 

support what invigorates our shared 

idealism and sustains the reason we 

are here tonight. 

A shared affection and regard. 

And from the wish of my 

favorite poem, and because we are 

in ABOTA, I toast and hope again 

trusting that we will continue to 

share our last great voyage together 

and deserve to touch land upon the 

happy isles and see Achilles, whom 

we knew. 6 

You deserve it as those who 

strove with gods. 

1 

President John F. Kennedy. Remarks made during a 

speech at Rice University, Houston, Texas, Sept. 12, 

1962. 

2 

Michael F. Colley and Claude H. Smart, Jr., are cofounders 

of the American Civil Trial Bar Roundtable. 

Mr. Colley, who passed away in 2015, served as the 

1997 ABOTA National President and was from the 

Ohio Chapter. Mr. Smart is an ABOTA Emeritus 

Member from the Sacramento Valley Chapter. 

3 

James F. Gilwee was a longtime National Board 

Representative from the Sacramento Valley Chapter. 

He passed away in 2007. 

4 

William H. Edington serves as ABOTA’s longtime 

legislative consultant in Washington, D.C. 

5 

Lewis R. Sifford, 2007 ABOTA National President; 

Gordon S. Rather , 1996 ABOTA National President; 

and Patrick C. Simek, 2002 ABOTA National 

President. 

6 

From the poem, “Ulysses” by Alfred Lord Tennyson, 

published in 1842. 

EDITOR’S NOTE: 

Tribute to the Emmanuel AME Church Nine 

Luther J. Battiste III, of the South Carolina Chapter delivered a speech 

at the National Board Meeting for the American Board of Trial 

Advocates in Charleston, S.C., on Oct. 10, 2015, regarding the tragic 

shooting at the Emmanuel AME Church in Charleston, S.C. The Justice 

Department intends to seek the death penalty against Dylann Roof, 

the man charged with killing nine black parishioners last year in that 

event. The speech referenced the friendship between Mr. Battiste and 

Joe Roof, the grandfather of Dylann. The above note was written in 

1999 to congratulate Mr. Battiste for being inducted into the South 

Carolina Black Hall of Fame. 

Voir Dire • Spring 2016 7

The American Jury 

By Dicky Grigg, Guy D. Choate, Dan Worthington, and Tim Newsom

Promoting jury trial system to the community 

The American Jury presentation began through the Law Rules Committee 

of the Texas Chapters of the American Board of Trial Advocates chaired by Dicky 

Grigg of the Austin Chapter. The presentation was originally inspired by Gary K. 

Smith of the Tennessee Chapter. Gary developed a similar program that he used 

when he served as president of the Tennessee Bar Association. 

Our goal was to develop a presentation that would appeal to laypeople 

and educate them on how the right to trial by jury is the foundation of the 

Constitutional freedoms we enjoy as Americans. Dicky was the lead author of the 

original presentation. Dan Worthington of the Rio Grande Valley Chapter was 

the first to speak on how the Second Amendment was subject to the same types 

of attacks as the Seventh Amendment. Dan’s novel approach became the key to 

bringing the Constitution to life in Americans’ living rooms. Guy Choate of the 

Central West Texas Chapter developed the original PowerPoint presentation that 

vividly illustrated our message. 

All of the authors then added their own personal touches to the 

presentation. Once the presentation was ready, I contacted organizations 

throughout this area and asked to present it. In the past year, I have given the 

American Jury presentation a dozen times, including civic organizations, labor 

unions, Boy Scout troops, and continuing education seminars. 

While the American Jury presentation was developed by members of 

ABOTA, it belongs to all Americans. It is our duty as ABOTA members to deliver it 

to them. 

— By Tim Newsom 

Tim Newsom is the past president of the Amarillo Chapter of the American Board 

of Trial Advocates and past president of the Amarillo Area Bar Association. 

Constitution is the Contract with 

Our Government 

e have on the 

table a handout. 

It is a pocket 

Constitution that 

we will work into 

our program today. 

It will take you 20 

minutes to read. This is our contract 

with our government, and something 

that regretfully seems to be less 

important every day that marches 

forward. So with that I want to talk 

with you about the American Jury, 

and the Seventh Amendment right to 

jury trial in a civil case. 

Second Amendment 

What I like to do is to start 

off by talking briefly about the 

Second Amendment. The Second 

Amendment, of course, we know is 

our right to bear arms. I doubt there 

are any of you that believe we should 

repeal the Second Amendment. 

However, there was a recent article 

in the Seattle Times and it stated that 

the Second Amendment is no longer 

relevant. The reason our Founding 

Fathers put it in for our protection 

no longer exists and it ought to be 

taken from us. 

[You might say, well Seattle is 

just a bunch of dope heads anyway 

and who cares what they do in 

Seattle where, of course, now you 

can go on any street corner and buy 

a joint. Then I saw that a professor 

at the University of Texas at Austin 

also believes that the Second 

Amendment does not mean what 

we have all been educated to know 

that it means. But, of course, at 

UT they are a bunch of hippies 

anyway. What do we expect out of 

Austin? Texas A&M is not to be left 

out. A full-time professor says the 

time has come to repeal the Second 

Amendment.] 

The reason I mention the Second 

Amendment before we talk about 

the Seventh and the right to a jury 

trial is because the same reasons 

that people give today for taking 

away the right to a jury trial are the 

reasons that people will give you for 

taking away the Second Amendment 

right. I will also tell you that the 

Second Amendment is protected by 

the Seventh Amendment, and we 

will talk about how the Seventh 

protects the Second a little later in 

this presentation. 

Seventh Amendment 

When our Founding Fathers met 

in Philadelphia they insisted that we 

have a Bill of Rights that provided 

for the right to trial by jury. As 

stated by Thomas Jefferson, the jury 

is “the only anchor yet imagined 

by man, by which a government 

can be held to the principles of its 

constitution.” 

As you well know, the first 10 

amendments to the United States 

Constitution comprise the Bill of 

Rights. The Ninth Amendment 

generally states this is not a 

complete list and that we may pass 

additional amendments. The Tenth 

Amendment states whatever is not 

taken by the federal government is 

given to the states. That leaves eight 

substantive amendments. Of those 

eight, three amendments, almost 

half, provide for a jury system. The 

Fifth Amendment establishes the 

grand jury. The Sixth Amendment 

establishes the right to a jury trial 

in a criminal case. The Seventh 

Amendment establishes the right to 

a jury trial in a civil case. 

The right to trial by jury is 

not only in the Fifth, Sixth, and 

Seventh Amendments to the Bill of 

Rights, but is also in Article III of 

the Constitution, which states, “The 

Trial of all crimes, except in cases 

of Impeachment, shall be by Jury.” 

U.S. CONST. ART III. 

The right to trial by jury was so 

important to the framers that they 

insisted on placing it in both the 

body of the Constitution and the Bill 

of Rights. The Texas Constitution 

likewise guarantees an impartial 

jury to a person accused of a crime 

and, as applied to civil cases, states 

the “right of trial by jury shall 

remain inviolate.” TEX. CONS. 

ART. I, §§ 10, 15. If you believe in 

the Constitution of the United States 

and of our state, then you must 

believe in the right to trial by jury. 

Period. 

How we got here is vital to 

know. 


Magna Carta 

So where do we start? The 

Magna Carta was passed in 1215 

because King John, as with all 

kings, was a tyrant. But, King John 

was particularly bad. And so even 

the Nobles of the Land of Gentry 

demanded that a written contract 

be put together to guarantee the 

rights of the citizens against the 

king. So, Magna Carta is one of the 

first documents that gave us the first 

right to a jury trial. From the Magna 

Carta in 1215 you can draw a direct 

line to our Constitution that was 

ratified in 1789. 

I want to talk with you about 

two cases that predate the formation 

of the United States of America and 

provided the movement to the right 

to jury trial. 

Crown v. William Penn 

The first is Crown v. William 

Penn. In 1670, William Penn was 

a man in his late twenties. He 

was leader of his Quaker church 

in London. One Sunday, William 

Penn, as a lot of us do, went to 

church. When he arrived he found 

soldiers had barred and chained the 

doors of the church. So, William 

Penn and the congregation held their 

service on the street in front of 

the church. The King, called King 

Charles II, believed if you did not 

worship in his manner you were a 

traitor. So after the service, the King 

sent soldiers into the crowd. They 

arrested William Penn, shackled 

him, and took him to Newgate 

Prison in London. 

Now in 1670, Newgate Prison 

was known for its brutality. And 

shortly after Penn was in prison 

he is brought to the Old Bailey 

for trial. And when he is brought 

in, Penn asked the Lord Mayor 

who was presiding over the trial, 

“What have I done?” Well as tyrants 

and their lackeys tend to be, Lord 

Mayor did not like to be questioned. 

He had William Penn gagged, 

bound, and placed into a cell before 

the courtroom and denied the 

opportunity to defend himself. 

The case proceeded rather 

quickly with only the King putting 

on evidence of William Penn’s 

alleged treason. After a couple of 

soldiers testified about what they 

had heard, the Lord Mayor turned 

to the jury and said, “Please go 

deliberate and return a verdict 

of guilty against William Penn.” 

So the jury goes down the hall to 

the deliberation room. It is a little 

unclear 350 years later whether it 

was a man named Thomas Vee or 

Edward Bushel, but one of those two 

men was elected as foreman. We 

know they were both on the jury. We 

know that Mr. Bushel had with him 

a copy of the Magna Carta. 

Now in 1670 most people were 

not literate. People could not get 

a copy of their contract from the 

government off of Amazon.com. 

Think about what it meant to Mr. 

Bushel that he carried that with him. 

And so he goes into the deliberation 

room. And they sit down and he 

said, look, this is not the way a trial 

is supposed to be. We are supposed 

to decide the case, not the judge. 

They talk about it for a couple 

of hours and the Lord Mayor is 

growing impatient. The Lord Mayor 

sends the bailiff to retrieve the jury. 

He puts them in the box and he 

said, “Have you reached a verdict 

of guilty?” Mr. Bushel rises, having 

been elected foreman, and says, “We 

have not.” The judge said well you 

are going back to deliberate. One of 

the jurors asked, “Can we have some 

water?” The judge said no. No food, 

no water until you return a verdict of 

guilty. And off they go. They spent 

well into the night. About 10 hours 

later the judge has them brought 

back into the courtroom and he 

asked have you reached a verdict 

of guilty. And Mr. Bushel rises and 

says we have. We find William Penn 

guilty of speaking on Gray Street, 

which was the street in front of the 

church. But, of course, that was not 

the crime. The judge exploded and 

had the entire jury arrested and 

put into jail for 24 hours with no 

food and no water and instructed to 

return with the verdict of guilty. 

They returned the next day and 

did not deliberate very long. When 

they came forward, Mr. Bushel rose 

and announced that they had found 

Mr. Penn not guilty. It would be an 

okay ending except the judge was 

unhappy. He fined the jurors a year’s 

salary and had them imprisoned 

until they paid for contempt. 

One of the things I had forgotten 

to mention is when Mr. Penn had 

arrived for court that first day, he 

removed his hat. The judge ordered 

the clerk to place the hat back on 

his head, and the judge then fined 

Mr. Penn for wearing his hat in the 

courtroom and fined him a year’s 

salary. Both Mr. Penn and the jury 

were shipped off to prison. 

The courtroom was packed. 

This was a very important trial at 

the time, but we did not have CNN 

or Fox or any of the other news 

channels to cover it. We did not 

have instant feedback all throughout 

the day. And so it took about three 

months before word of the jurors’ 

imprisonment leaked out and a 

lawyer traveled from outside of 

London and was able to secure the 

jury’s release. 

Crown v. Peter Zenger 

The second case is Crown v. 

Peter Zenger. The King appoints 

William Cosby to be governor of 

New York. It is 1732 and there 

was an interim Governor serving—a 

man named Governor Van Damme. 

Cosby arrives and says, “I want half 

the salary you were paid waiting for 

me to arrive.” Van Damme tells him 

probably something similar to Van 

Damme’s name. And the answer 

was no. Governor Cosby decides 

he will sue Van Damme. Cosby 

appoints a three-judge panel and 

two of the three judges will be 

named and appointed by Governor 

Cosby. What a shock, it comes out 2 

to 1 in favor of Governor Cosby and 

against Governor Van Damme and 

then to make sure that it is sealed, 

Governor Cosby fires Chief Justice 

Morrison who was the lone dissent 

in the three-judge panel. Chief 

Justice Morrison decides that there 

needs to be a way to communicate 

to the American people, particularly 

the New Yorkers, the abuses of 

Governor Cosby. So Morrison forms 

a newspaper called The New York 

Weekly Journal. But, he has to have 

a printer. Regretfully, there were no 

Kinkos; there was not a Kindle or 

smart phone, all the ways we take for 

granted today that we communicate. 

And so Chief Justice Morrison 

found a man named John Peter 

Zenger. John Peter Zenger was a 

10 


small businessman, an immigrant 

from Germany who bought a 

printing press and started inking 

out a living. 

When they start printing 

this newspaper in 1735 the truth 

was not a defense and if you 

said something critical of the 

government, particularly the King 

or his appointed lackeys, you would 

find yourself in prison. True or not. 

What they will tell you 

historically is the truer the statement, 

the harsher the punishment. Mr. 

Zenger, who is trying to make a 

living simply running a printing 

press, finds himself under the full 

weight of the King of England. 

He hires a lawyer to defend him. 

Governor Cosby has the lawyer 

disbarred. He hires a second lawyer. 

Governor Cosby has the second 

lawyer disbarred. Governor Cosby 

then appoints a brand new lawyer 

known to be loyal to the king to 

defend Mr. Zenger in the libel case. 

Thankfully, the lawyer was also 

loyal to his client. 

As they arrived for trial, the 

presiding judge, also a Governor 

Cosby appointee, starts trying to 

pack the jury with loyalists. The 

young lawyer knew enough to object 

and to fight it and he did a good job. 

When it finished, the judge threw up 

his hands and let the jury be seated 

fairly. One can assume because he 

thought it was a kangaroo court, the 

fix was in, and what did it really 

matter who was seated as a juror. 

So they get the jury in the box and 

as they start trial the young lawyer 

stands up from the counsel table and 

announces to the court that he is 

withdrawing. From the crowd rises 

a man named Andrew Hamilton 

(sounds like he ought to be one of 

the Founding Fathers, but he is not), 

but at the time he was one of the top 

lawyers in the country. 

Andrew Hamilton rises and 

takes the place of the young lawyer. 

They have the trial. The jury is 

out less than an hour. A complete 

acquittal of Mr. Zenger. The judge 

explodes in anger. But from that 

day forward the King of England, 

particularly in the United States, 

stopped using libel as a way to 

squelch dissent. And as you read 

about the John Peter Zenger trial, 

a lot of historians will tell you that 

beyond the Boston Tea Party in 1773 

and Lexington and Concord in the 

spring of 1775, these 12 jurors in 

1735 standing up to the King were 

really the start of the American 

revolution, because it told the King 

that the citizens of the United States 

would simply not stand for it. The 

courage they showed was one of 

the reasons why I think it is an 

important case to talk about. 

What do the William Penn and 

John Peter Zenger trials have to do 

with us today? 

SEC v. Mark Cuban 

Let me talk a minute about SEC 

v. Mark Cuban. Mark Cuban is a 

pretty polarizing guy. Cuban was 

sued by the federal government for 

insider trading. Every expert that 

looked at it said it was not true, it 

was a gross governmental overreach; 

but, nevertheless Mark Cuban is 

forced to trial by the United States 

government. Cuban won. Now we 

do not have a king, but nevertheless 

we have a government who is out to 

get someone and they believe he did 

it and they are not going to listen 

to whether he did or he didn’t. The 

Wall Street Journal, hardly a liberal 

newspaper and hardly a friend of 

jury verdicts, wrote, “One of the 

virtues of the jury system is that it 

invites the average person’s common 

sense to check on the excess of the 

law enforcers” — the government. 

The Cuban trial was in January 

2014. Even in modern times, we still 

have our government overreaching 

in civil cases. 

West Texas Small Business 

In June of 2015, we picked a 

jury that would decide the future of 

my client’s 30-year business—one 

he and his business partner built 

from the ground up. My client is 

a small mom-and-pop swimming 

pool builder. The pool builder was 

sued by an unhappy customer. This 

was the first lawsuit in the pool 

builder’s history. The customer 

is a billionaire oil and gas man. 

The customer wanted the backyard 

pool—a $600,000 oasis—torn out 

and rebuilt. The customer also 

wanted our client to pay all legal 

fees. The customer wanted more 

than $1 million in damages and fees, 

and had more than enough money to 

push the case with expensive experts 

from the West Coast. Our client 

wanted to be paid the balance left 

on the contract, $77,000, and its 

attorney’s fees. If the customer won, 

our client would have to close its 

doors. It was literally a “make-orbreak” 

lawsuit. 

As the jury was seated, one of 

our clients said, “You mean to tell 

me, that the future of our business 

is in the hands of a 19-year-old 

unemployed young man?” We told 

our client the 19-year-old and the 

others sitting in that box were an 

American jury that would level the 

playing field against this billionaire 

and give our clients’ company its 

only chance of survival. 

After an eight-day trial, we 

listened to the judge read the verdict. 

A complete victory for our client. 

Our client won across the board. 

The customer got nothing; the jury 

awarded our client its last unpaid 

bill and all attorney’s fees. It was an 

overwhelming win. 

Our client had the entire trial 

team take a picture at the courthouse. 

A couple of weeks later, our client 

gave us the same picture with this 

written at the bottom: “Picture 

taken moments before the just and 

righteous 12-0 verdict delivered by 

an American jury... [Our client] will 

be forever grateful to [each trial 

team member including our trial 

technology assistant and stated all 

of our names] and for the service 

of 12 good citizens who dedicated 

eight days of their lives to serve our 

system.” 

I did not write those words. I 

had no input in those words. They 

are words written by a business 

owner whose entire career was 

saved by an American jury. 

You never know when your 

opponent will be wealthier, smarter, 

or more influential than you. The 

American jJury levels the playing 

field for all of us. 

Where Have the Trials Gone? 

Despite the sound, historical 

reasons for trial by jury and these 

modern-day stories, we are seeing a 

stark decline in jury trials. In 2002, 

there were 2,031 civil jury trials 

in Texas. We are down to 969 or 


1,000. So, as the population has gone 

up, the jury trials have been cut in 

more than half and there are a lot of 

reasons for that we are going to talk 

about. Why? 

Federal Preemption 

Federal preemption means that 

if a regulatory agency approves a 

drug, a product, a railroad crossing, 

their decision cannot be questioned. 

Bureaucrats in Washington, not local 

citizens, determine if a product is 

safe. You are forced to accept, as 

the final word, regulations from 

agencies that are influenced by the 

very special interest groups they 

regulate. The regulators often come 

from the regulated industry and 

intend to return to it. True examples 

of the fox guarding the hen house. 

Legislative bodies passing laws to 

limit the power of the jury 

Unfortunately, money — 

big money — is pervasive in our 

legislative process. Because of the 

need to raise huge amounts of money 

for campaigns, elected officials are 

more and more beholden to special 

interest groups. Because the U.S. 

Supreme Court recently struck 

down limits on contributions that 

corporations and individuals can 

make to political campaigns, big 

money will play an even greater role 

in elections. 

Special interest groups, political 

action committees and highly-paid 

lobbyists are successfully chipping 

away at the right to trial by jury. 

These groups are too clever to launch 

a frontal assault on the Seventh 

Amendment; in fact, they give lip 

service to jury trials. But bottom 

line — what do these special interest 

groups want? Special treatment for 

their members. They want laws 

passed that allow them to avoid 

responsibility. 

Appellate Courts Disregarding 

Jury Findings 

The Founding Fathers did not 

trust politics. They tried to establish 

a judicial branch that was free of 

politics. In states like Texas, where 

judges are elected, politics is a 

necessary evil. Judicial races on the 

appellate level are expensive and 

almost always won by the candidate 

who raises the most money. In Texas, 

and in many other states, the largest 

donors to judicial campaigns are 

special interest groups that do not 

want juries examining their conduct 

— insurance companies, large 

manufacturers, big oil companies. 

Like anyone who donates to a 

political campaign, these groups 

fund candidates that agree with their 

political philosophy — candidates 

that do not trust juries. Their 

candidates usually win. 

Appellate judges that do not trust 

juries often substitute the outcome 

they desire for the decision made 

by the jury. When a jury determines 

that a manufacturer, an insurance 

company, or a government entity is 

responsible for damages and must 

pay for the harm they have caused 

— many times an appellate court 

will disregard the jury’s findings. 

A study by the University of Texas 

Law School a few years back showed 

consumers lost more than 90% of 

the time before the Texas Supreme 

Court. When this happens, your right 

to a jury trial has been rendered 

meaningless. 

Mandatory Arbitration 

Do you have a cell phone? A 

credit card? Then you have agreed 

to arbitration and probably did not 

know it. In arbitration, a professional 

arbitrator or a panel of arbitrators 

decides the case, not a jury. There 

is nothing wrong with arbitration 

if it is an arms-length transaction. 

If both parties make a knowing 

and informed decision to have an 

arbitrator, not a jury, decide their 

case. But there is something wrong 

if you are forced to forfeit your right 

to a jury trial by signing contracts 

that, as consumers, we really have 

no choice but to sign. Contracts with 

banks, credit card companies, stock 

brokers. Consumers are required to 

sign these agreements before any 

dispute even exists. 

Many of you have waived your 

right to a jury without even knowing 

it. How can that be an informed 

consent on your part? 

Often when a consumer is forced 

to arbitration, he or she start out 

behind. Even if the arbitrator is fairminded, 

he may be subconsciously, 

predisposed toward the business. 

First, like all professionals, he 

wants to stay employed, to be hired 

again. Who is going to have the 

greater need for his repeated services, 

the consumer or the business? 

Second, arbitrators tend to 

compromise, to split the baby. So, 

even if you have a valid claim, your 

chances of receiving full justice are 

slim. It is you, the consumer, that 

suffers. 

So for Captain Crunch or 

General Mills, they had a policy that 

said if you got to our Facebook page 

and like us, you agree to arbitrate 

any dispute you had with Captain 

Crunch through General Mills. Well, 

people rose up because they will 

take arbitration in buying a car, their 

phone, but not their children’s cereal. 

And so that got rolled back after a 

social media firestorm. 

Revisit the Second Amendment 

Most people acknowledge they 

believe in the Constitution, but will 

ask if the right to a jury trial is 

that important, because most people 

have never needed one. Let’s go back 

to where I started — the Second 

Amendment. None of us want to 

give up our right to own a gun. 

Nor do any of us want the Second 

Amendment rights-restricted. As the 

argument goes, a slight restriction 

now will result in wholesale abolition 

later. Of course, any faction desiring 

to restrict our Second Amendment 

right will not promote an all-out 

weapon ban; they will restrict our 

rights in creative ways that stay 

under the radar to most citizens who 

will only realize the magnitude of 

the restriction after it becomes law. 

What entity has the power 

to stop a creatively disguised 

unconstitutional restriction on your 

right to bear arms? The answer 

is a jury of your peers. Do not 

take my word for it. The National 

Rifle Association has a division that 

performs that very task by enforcing 

the Second Amendment through 

use of the Seventh Amendment. 

See Brett Emison, “Defending the 

Second Amendment,” Kansas City 

Legal Examiner (February 14, 

2013). In addition, the NRA website 

asks people to sign a “Declaration 

12 


of Individual Rights” that lists all 

fundamental rights bestowed upon 

American citizens in the Bill of 

Rights, including the right of trial 

by jury. 

Let me give you another 

example, this time with the First 

Amendment. In the mid-1990s, 

cattlemen in Amarillo sued Oprah 

Winfrey and her talk show guest 

Howard Lyman for comments they 

made on national television about 

beef and mad cow disease. Oprah 

and Mr. Lyman did not defend that 

case on whether mad cow disease 

was scientifically valid. Oprah 

and Mr. Lyman defended that case 

as an infringement on their First 

Amendment rights to freedom of 

speech. The jury agreed and found 

Oprah and Mr. Lyman not liable. 

The U.S. Constitution: Read it 

In conclusion, please take 

your copy of the Constitution. 

Read it. You can read through it in 

20 minutes. When you are at the 

ballgame, restaurant, or coffee shop, 

and the topic of lawsuits and jury 

duty comes up, pull out your pocket 

Constitution and tell your friends 

that juries are protecting their 

rights to own a gun, have freedom 

of religion, and have freedom of 

speech. 

When you are summoned to jury 

duty, go. Recently, former President 

George W. Bush went to jury duty 

in Dallas County just like the rest of 

the Americans that were summoned 

that day. And, you know what, if 

President Bush had been selected to 

be on the jury, he would have gotten 

one vote just like the other eleven 

jurors. A former president, the most 

powerful position on the planet, and 

he gets one vote just like the rest 

of us. 

The fundamental rights given 

to us by the Bill of Rights—freedom 

of speech, freedom of religion, the 

right to bear arms, and the right to 

trial by jury, just to name a few—are 

dependent on one another. We cannot 

pick and choose the fundamental 

rights to enforce. “We must preserve 

and protect each fundamental right 

if we are to protect any of them.” 

We must fight for our fundamental 

rights just as Americans have done 

for over 230 years. 

Excerpts from an interview with 

the Amarillo Globe News: 

“If you believe in the Constitution of the United States and 

of our state, then you must believe in the right to trial by 

jury. Period,” said Tim Newsom. 

“The number of jury trials in Texas has dropped by nearly 

37% in the last 13 years even as the population has 

exploded,” Newsom said. He attributes this decline to a 

number of reasons, but highlights the impact that money 

and influence have on legislators who have the power to 

limit the power and responsibility of juries. 

“We cannot rely upon business and insurance interests 

to preserve jury trials, because business factions consider 

the jury as an uncontrollable risk to their business model,” 

Newsom said. “Politicians are reliant on donations and 

financial support to win re-election,” Newsom said, “and 

often rely on these anti-jury backers to help them get 

there.” 

“Judges on appellate courts also bear some blame for 

substituting their judgment in place of a jury,” he said. 

A University of Texas Law School study showed consumers 

lost over 90 percent of the time before in consumer law 

cases in the Texas Supreme Court. 

“With the erosion of the jury trial follows the erosion of 

other fundamental rights enjoyed by Americans such as 

freedom of speech and the right to bear arms,” Newsom 

said. “If American citizens sit idly by and allow jury trials to 

continue on a declining course, then jury trials run the risk 

of extinction on Earth.” 

One of several solutions is to educate voters and potential 

jurors on the consequences of a declining jury system. 

Newsom handed out pocket Constitutions to attendees. 

Source: Aaron Davis, Amarillo Globe News, March 31, 2016 


In the Interest of Full Disclosure: Balancing 

Duty of Candor with Courtroom Advocacy 

By Judge Eric V. Moyé, Victor D. Vital, and William R. Stewart 

Introduction 

During the allotted 

media day in 

the buildup to 

Super Bowl XLIX, 

Marshawn Lynch, 

star running back for 

the Seattle Seahawks, 

answered each and every question 

posed to him by responding, “I’m 

just here so I won’t get fined.” He 

repeated the statement without 

regard for the nature or content of 

the questions posed: “I’m just here 

so I won’t get fined.” While the 

responses were technically true— 

Lynch had previously demonstrated 

his reluctance to speak with the media 

and really was appearing at media 

days for the sole purpose of avoiding 

a fine—it left media members and 

football fans without helpful answers 

to their questions. 

In the practice of law, judges 

often present lawyers with difficult 

questions. Much like Mr. Lynch, 

many lawyers would probably prefer 

to sidestep the issues or focus the 

Court’s attention elsewhere, such as 

the strengths of their cases, as opposed 

to the weaknesses. Unfortunately, 

lawyers don’t have the luxury of 

responding to every question with a 

prepared “I’m just here so I won’t get 

fined” answer. They are called upon 

to advocate for their clients forcefully, 

and when they do address judges, 

lawyers have an ethical duty of candor 

that requires them to not only state 

the truth, but also to disclose adverse 

authority or facts to the court’s 

attention when opposing counsel has 

not done so. 

This article examines this duty 

by first setting forth the rule-based 

codification of an attorney’s duty of 

candor as presented in the American 

Bar Association’s Model Rules of 

Professional Conduct. It then outlines 

the importance of upholding that duty, 

which impacts clients and counselors 

alike. Given certain societal shifts 

in both the practice of law and in 

our communities generally, there is a 

temptation to emphasize only positive 

information, often at the expense of full 

disclosure. This article then concludes 

with a handful of illustrative examples 

from actual court transcripts that show 

precisely how careful counsel must be 

when advocating for their clients. The 

illustrative examples also demonstrate 

how even counsel with the best of 

intentions can prejudice their clients’ 

positions by failing to scrupulously 

cite facts and case law in a manner 

consistent with the duty of candor. 

Defining the Duty of Candor 

Rule 3.3 of the American 

Bar Association Model Rules of 

Professional Conduct directs that: 

(a) A lawyer shall not 

knowingly: 

(1) make a false statement of 

fact or law to a tribunal or fail 

to correct a false statement of 

material fact or law previously 

made to the tribunal by the 

lawyer; 

(2) fail to disclose to the 

tribunal legal authority in the 

controlling jurisdiction known 

to the lawyer to be directly 

adverse to the position of the 

client and not disclosed by 

opposing counsel; or 

(3) offer evidence that the 

lawyer knows to be false. If 

a lawyer, the lawyer’s client, 

or a witness called by the 

lawyer, has offered material 

evidence and the lawyer comes 

to know of its falsity, the 

lawyer shall take reasonable 

remedial measures, including, 

if necessary, disclosure to the 

tribunal. A lawyer may refuse 

to offer evidence, other than 

the testimony of a defendant 

in a criminal matter, that the 

lawyer reasonably believes is 

false. 

(b) A lawyer who represents 

a client in an adjudicative 

proceeding and who knows 

that a person intends to engage, 

is engaging or has engaged in 

criminal or fraudulent conduct 

related to the proceeding shall 

take reasonable remedial 

measures, including, if 

necessary, disclosure to the 

tribunal. 

(c) The duties stated in 

paragraphs (a) and (b) continue 

to the conclusion of the 

proceeding, and apply even if 

compliance requires disclosure 

of information otherwise 

protected by Rule 1.6. 

(d) In an ex parte proceeding, a 

lawyer shall inform the tribunal 

of all material facts known to 

the lawyer that will enable the 

tribunal to make an informed 

decision, whether or not the facts 

are adverse. 1 

Additionally, the comments to 

Rule 3.3 provide helpful guidance in 

defining the duty of candor. Comment 

2 reminds attorneys that they have “an 

obligation to present the client’s case 

with persuasive force.” 2 

As the rules make clear, that 

persuasive force cannot come at the 

expense of candor. “Performance 

of that duty while maintaining 

confidences of the client, however, 

is qualified by the advocate’s duty of 

candor to the tribunal.” 3 So while 

“a lawyer in an adversary proceeding 

is not required to present an impartial 

exposition of the law,” the lawyer 

cannot “allow the tribunal to be 

misled by false statements of law or 

fact or evidence that the lawyer knows 

to be false.” 4 

This duty extends to 

“circumstances where failure to make 

a disclosure is the equivalent of an 

affirmative misrepresentation.” 5 With 

16 


espect to legal arguments, Comment 

4 clarifies that “[l]egal argument based 

on a knowingly false representation of 

law constitutes dishonesty toward the 

tribunal. A lawyer is not required to 

make a disinterested exposition of the 

law, but must recognize the existence 

of pertinent legal authorities.” 6 

Further, that duty extends so far 

as to the affirmative obligation “to 

disclose directly adverse authority in 

the controlling jurisdiction that has 

not been disclosed by the opposing 

party.” 7 In addition to the American 

Bar Association’s Model Rules, 

many state bar associations or other 

licensing bodies have codified their 

own versions of the duty of candor to 

the tribunal. 

Importance of the Duty of Candor 

Although extolling the merits of 

candor and honesty as virtues in their 

own right is an exercise far beyond the 

scope of this article, an attorney’s duty 

of candor to the court, or lack thereof, 

can have profound impacts for clients 

and their attorneys. These impacts 

may be either short in duration, which 

is seldom, as indicated herein, or 

prolonged, but they are almost always 

negative. 

As it concerns clients, where 

there has been a violation of the duty 

of candor to the tribunal, courts may 

impose sanctions on both the dishonest 

attorney and the client jointly and 

severally, thereby incentivizing 

clients to ensure that their counsel are 

forthright while arguing on behalf of 

their clients. This much is fairly selfevident. 

Additionally, if a lawyer commits 

a violation of the duty of candor, the 

client who is so represented loses 

a significant amount of leverage 

and negotiating strengths moving 

forward. Any existing leverage is 

likely to suddenly erode because 

now there is a new incentive to keep 

the misrepresentations from being 

brought to light in open court. This 

could ultimately lead to a settlement 

on less than favorable terms. 

Finally, clients should also be 

aware that once the court becomes 

aware of an attorney’s breach of the 

duty, it is a near certainty that all future 

arguments and motions to the court 

will be met with increased scrutiny, 

if not downright distrust. This leaves 

clients at a significant disadvantage, 

especially daunting where they may 

otherwise have a meritorious claim or 

defense but may not be in an equitable 

position to assert them. 

For attorneys, a breach of the 

duty of candor is likely to cause 

consequences that outlast imposition 

of monetary sanctions. An attorney’s 

reputation is a key factor clients 

consider when deciding who to retain. 

If prospective clients are aware of an 

attorney’s prior dishonesty, they may 

be less likely to hire him or her. Much 

more significantly from the perspective 

of the practitioner, however, is the 

effective loss of credibility before 

the tribunals. Whether overtly or 

subconsciously, judges invariably 

consider an attorney’s credibility when 

weighing the merits of a lawyer’s 

argument. Further to this point, word 

at the courthouse spreads quickly, 

particularly among judges who are 

regularly restricted from speaking 

to other professionals and therefore 

bond more closely with other judges. 

Without a shadow of a doubt, the 

breach of an advocate’s duty of candor 

before one judge most assuredly will 

soon be known to virtually every judge 

in the courthouse. Finally, malpractice 

insurance carriers who become aware 

of an attorney’s breach of the duty of 

candor may increase the malpractice 

insurance premiums they charge the 

lawyer on the basis that there is an 

increased risk of a malpractice claim. 

Societal Shifts Permeating the 

Profession 

Compounding the issue are certain 

pressures in the legal profession today 

that incentivize winning at all costs, 

and profitability or efficiency at the 

expense of punctilious honesty and 

full candor. Historically, practicing 

law has been viewed as an honest, and 

we would assert, a noble endeavor, 

where advocates and counselors 

seriously adhered to their obligations 

as officers of the court. But pressures 

to increase profitability, bill more 

hours, find new clients, and “win at 

any cost” may be commoditizing this 

once noble profession into something 

far less honorable. As the American 

Bar Association’s Model Rules 

reaffirm, attorneys are “officers of the 

court” charged to protect “the integrity 

of the judicial process.” 8 These 

developments, if left unchecked, 

could lead attorneys to ignore their 

duty to deal honestly when addressing 

courts. 

The struggles attorneys face in 

this regard may be reflective of our 

society’s struggle to balance objective 

fact against naked self-interest. When 

politicians and entertainers of today 

employ spin doctors or public relations 

firms to “manage information,” 

their efforts are typically rooted in 

avoiding disclosure of harmful 

information while emphasizing only 

information which casts them in 

a positive light. News media and 

politics are increasingly partisan. So 

too, are attorneys, who can run afoul 

of the duty of candor by being fast, 

loose, or too glib to the point of 

being dishonest. As shown by the 

illustrative examples below, which 

are actual examples of duty of candor 

breaches witnessed by these authors, 

lawyers can get themselves and their 

clients into trouble when they take 

undue liberty in their arguments or 

statements of fact in court. Often 

this error is simply the result of 

their failure to be circumspect and 

totally candid—revealing the good, 

the bad and that in between—when 

advocating for their clients. 

Illustrative Examples 

Example 1: In the context of a 

Daubert expert witness challenge, an 

attorney represented to the court that 

“the C.V. attached to [the proffered 

expert’s] resume does not indicate 

that he has any expertise providing 

practice with regard to nursing home 

or nursing homecare.” In response, 

the Court, having had reviewed the 

C.V. itself, asked “[d]oesn’t his C.V. 

indicate time [working] in a home for 

the aging?” The lawyer attempted to 

divert to an argument in an alternative 

ground for his challenge to the expert, 

stating “I believe the reference to that, 

Judge, is very attenuated in time.” 

Thusly, while this attorney initially 

represented that the expert was 

subject to challenge based on his lack 

of any experience, his argument— 

more precisely stated—should have 

been that the expert lacked any recent 

experience. When the discrepancy 

between his representation and the 

clear reading of the C.V. itself was 

revealed, counsel then sought to 


apologize, noting that “I was unclear 

in my statements to [the Court].” 

However, by this time the damage 

had been done. The judge noted that 

“that’s not being ‘unclear’…That is 

stating a fact which is not true.” 

The foregoing exchange 

highlights the importance of 

articulating an argument with 

precision. Had the attorney been more 

precise in identifying the grounds for 

challenging the expert at the outset 

(an argument that might well have 

carried the day), noting that the 

expert’s relevant experience was too 

attenuated to count as any experience, 

his duty of candor would have been 

upheld and the point more ably 

advanced. More practically, from the 

perspective of the unfortunate client, 

the issue shifted from the ostensible 

inability of the expert to testify, to 

the lack of credibility of counsel. 

Thusly, this lawyer found himself 

explaining his misrepresentation to 

the Judge rather than articulating his 

position, an unenviable position for 

an advocate. 

Example 2: While arguing a 

motion to transfer, an attorney claimed 

that “the case law is clear that these 

[hearings on such motions to transfer] 

are evidentiary hearings and the Court 

has to have an evidentiary record. 

Pleadings are not the evidence.” In 

response to an inquiry from the Court 

related to the issue of the requirement 

of evidence, the opposing counsel 

responded in the negative and cited 

case law consistent therewith. When 

confronted by the Court with this 

apparent contradiction from his earlier 

assertion that the court must hold an 

evidentiary hearing, the first lawyer 

attempted to “clarify” his statement. 

As the hearing progressed, the Court 

requested that the court reporter read 

back the prior misleading statement of 

law, as opposed to permitting counsel 

to further explain his assertion. 9 

With the example above in mind, 

advocates should always remember 

to avoid overstating the strength of 

favorable case law. In this example, 

the misrepresentation could have 

been avoided altogether had counsel 

simply qualified his statement by 

noting that when there is a dispute on 

the face of the pleadings, the Court 

must hold an evidentiary hearing. 

Sadly, in an apparent attempt to be as 

zealous as possible in his argument, 

Winning at any cost has impacted the legal profession 

Members of the American Board of Trial Advocates are very 

aware and respectful of the nobility and finer traditions of 

our profession. Currently, however, many lawyers, particularly 

younger lawyers growing up in the practice of courtroom advocacy, 

focus entirely on and emphasize zealous advocacy over and to the 

neglect of the duty of candor. 

The “winning-at-any-cost” mentality that has crept into our 

profession should be troubling to us all. Indeed, membership 

in the ranks of ABOTA requires us to elevate “the standards of 

integrity, honor, ethics, civility and courtesy in the legal profession.” 

That includes emphasizing and elevating the duty of candor to 

the tribunal, which requires the experienced and learned of our 

profession, such as the ABOTA membership, to fulfill the solemn 

and continuing obligation to mentor and usher in the next 

generation of young trial practitioners in view of the duty of candor. 

We must not fail to pass along the importance of the duty of 

candor to the younger generation lest the trial practice and the 

professional generally lose its nobility. Not only is this consistent 

with the finest tradition of our calling, which is the practice of law, it 

is sound, pragmatic effective oral advocacy. As is illustrated herein, 

the failure to be candid and totally honest with the court may have 

far-reaching and equally disastrous consequences for the advocate, 

the position, and ultimately, the client. 

— Judge Eric V. Moyé, Victor D. Vital, and William R. Stewart 

counsel was found to be answering 

to the Court for misrepresenting the 

law. Worse yet, the misrepresentation 

actually foreclosed the lawyer’s 

ability to be an advocate for the 

client when the judge denied the 

attorney’s request to “clarify” the 

case law further. 

Example 3: At a previous 

hearing, an attorney represented to 

the court that a bankruptcy petition 

had been filed that day, indeed 

“moments ago.” Counsel further 

represented that the filing necessitated 

the imposition of the automatic stay, 

mandating a continuance of a hearing 

related to the violation of a previous 

order of the Court. The hearing, of 

course, did not go forward, as the 

Court abided the automatic-stay 

requirement. Once the proceedings 

resumed more than a month later, 

the opposing counsel asserted that 

the Bankruptcy petition indeed 

had not been filed as represented. 

At this subsequent hearing, the 

misrepresenting lawyer admitted that 

“it was not true [that the Bankruptcy 

had been filed the morning of the last 

hearing because the misrepresenting 

lawyer] was mistaken about what 

federal law was” with respect to the 

time of filing a bankruptcy versus 

placing the petition in the mail or 

the federal court’s after-hours filing 

dropbox. 

The foregoing exchange 

illustrates that even where a party 

may be honestly mistaken as to the 

applicable law, that failure to know 

the law accurately caused counsel 

to misrepresent a critical fact to the 

Court. A more candid lawyer would 

have simply noted that the petition 

had been placed in the mail, but that 

he did not know whether or not that act 

constituted filing a bankruptcy action 

under federal law. That key fact was 

simply omitted. Instead, the attorney 

was placed in the difficult position of 

having to explain precisely why he 

was responsible for misrepresenting 

a critical fact to the Court. 

Example 4: During a hearing 

18 


elated to setting aside a default 

judgment, the issue of receipt of mail 

became a central issue. The Court 

posed a question in response to an 

asserted point of law on this issue, 

“You said a moment ago that you 

had case authority that indicated that 

ignoring one’s mailbox was evidence 

of conscious indifference. What case 

is that, please?” When the attorney 

provided a copy of the purportedly 

supporting case, the Court noted that 

the cited case, which referenced an 

admission by a party that he regularly 

left certified mail sitting in his Post 

Office box, “doesn’t seem to stand 

for the proposition you just said, it 

doesn’t seem to be helpful in terms of 

the court’s analysis.” 

During this same hearing, 

another attorney represented that a 

seller had a contractual obligation to 

disclose “any and all environmental 

conditions.” When the Court asked 

where, specifically, this obligation 

was created, counsel stated that the 

contract of sale between the parties 

created this obligation. He then 

stated that the contract provided “that 

[seller] will disclose all documents 

including environmental documents.” 

Noting the discrepancy between the 

clause as represented and the clause 

as read, the Court reminded counsel 

that “that’s not the representation you 

made to me . . .” 

Based upon the fact of having 

two different attorneys making 

misrepresentations during the 

same hearing, the Court seized the 

opportunity: 

“[N]ow both sides have told 

me things that just aren’t true. 

And I find that to be incredibly 

troubling. And just saying ‘I’m 

sorry, I apologize’ is a little bit 

too cavalier when you make 

a representation, a material 

representation to the Court. 

Or when you cite [a case] to 

the Court something for one 

proposition that it doesn’t state 

and I don’t want counsel to do 

that again.” 

This example is particularly 

telling not because on two unrelated 

issues, attorneys for both sides 

managed to breach their duty 

of candor to the Court during the 

same hearing. Rather, because each 

misrepresentation was revealed by 

active dialogue between the Court and 

the counsel, and not based upon one 

lawyer catching the misrepresentation 

of the other counsel. While most 

attorneys consider themselves honest 

people, that does not render them 

immune from committing these 

same kinds of errors, even when 

not intentional. And as the judge 

correctly noted, simply apologizing 

doesn’t adequately remedy the harm 

wrought by breaching this duty. It 

leaves the Court with the difficult 

task of applying increased scrutiny 

upon the arguments and factual 

representations of counsel, which in 

turn can result in delays in rulings, 

multiplied proceedings, and a less 

collaborative environment. 

Even in courts where the judge 

does not typically engage in dialogue 

with counsel, the need for scrupulous 

attention to detail should be selfevident. 

Given the adversarial nature 

inherent in the practice of law, the 

prudent courtroom lawyer should 

assume at the commencement of 

his or her argument that anything 

remotely close to an inaccurate 

statement is going to be recognized— 

and identified—as such by the 

perspicacious opposing lawyer, who 

will direct any such inaccuracy to the 

court. It goes without saying that most 

passionate and compelling citation to 

case law loses all of its impact when 

opposing counsel’s simple retort is 

an observation that the citation is 

inaccurate, doesn’t exist or is from 

the dissent. 

Conclusion 

Just as Marshawn Lynch 

expressed his desire avoid being 

fined, diligent and thoughtful lawyers 

can avoid being fined and incurring 

the other meaningful adverse 

consequences of breaching the duty 

of candor if they consistently remind 

themselves of their duty and make 

a thoughtful, diligent effort to stay 

within its confines. But unlike Mr. 

Lynch, lawyers can’t avoid being 

fined by simply showing up. And as 

the illustrative examples highlighted 

above demonstrate, breaching the 

duty of candor toward the tribunal 

doesn’t necessarily require an 

attorney’s express intent to deceive 

or mislead the court. Instead, it’s 

enough to be cavalier with facts or 

case law cited to the court. Careful 

lawyers should ensure that they know 

both the law and the facts and take 

care to accurately represent them to 

the court. 

To that end, attorneys should 

make careful efforts to know all the 

facts related to their case, to know 

the operative law, and to zealously 

advocate their positions while 

scrupulously addressing the court, 

without hyperbole, exaggeration 

or outright misstatement. Only in 

conducting themselves thusly will the 

most effective practitioners be able 

to effectively and enthusiastically 

represent their client’s interests before 

the tribunal and simultaneously avoid 

breaching the duty of candor. In this 

manner, not only will counsel best 

serve each current and prospective 

client’s interest, but also will preserve 

the court’s and the attorney’s most 

important commodity—reputation 

for integrity. 

This article should not be construed 

as legal advice or legal opinion on 

any specific facts or circumstances. 

The contents are intended for general 

informational purposes only, and you 

are urged to consult your own lawyer 

on any specific legal questions you 

may have concerning your situation. 

Judge Eric V. Moyé presides over the 

14th Judicial District Court of Texas, 

sitting in Dallas (Texas) County. 

Victor D. Vital is a litigation partner 

in Barnes & Thornburg’s Dallas office. 

William R. Stewart is an associate in 

Barnes & Thornburg’s Dallas office. 

1 

ABA Model Rules of Professional Conduct, Rule 

3.3. 

2 

Id. at Comment 2. 

3 

Id. 

4 

Id. 

5 


6 


7 

Id. 

8 


9 

It goes without saying that the technological 

advance of real-time reporting, which permits the 

courts and lawyers to immediately refer to prior 

statements made on the record, should be sufficient 

to remind counsel to be scrupulous in representations 

made to the court and on the record. 


Four Men. All Different. All Alike. 

A former reporter turned trial lawyer traces the rule of law 

By W. Michael Atchison 

Editor’s Note: This is an edited 

transcript of a speech delivered 

at the Southeast Chapters of the 


Convention in Birmingham, Ala., on 

April 15, 2016. 

hen I was first 

a p p r o a c h e d 

about speaking on 

professionalism, I 

accepted, thinking 

that it would be a 

simple task. Not being 

sure of its exact definition, a visit to 

Webster’s revealed professionalism 

to mean the “conduct, aims and 

qualities characteristic to a 

profession.” That didn’t sound too 

exciting. 

Googling the word led me to 

esoteric and scholarly law review 

articles that were impossible to read, 

and to simplistic bar association 

websites filled with trite slogans. 

Further research and reading led me 

to believe that crafting something 

thought-provoking and innovative 

just wasn’t going to happen. 

After all, we know how lawyers 

should conduct themselves. They 

should be diligent in providing 

clients with competent representation 

delivered timely, economically and 

fairly. They must treat fellow lawyers 

with respect and civility while 

recognizing their responsibilities to 

clients and the legal system. The 

Courts are owed their honor, their 

candor and their courtesy. Their 

obligation to society is to serve as 

needed for the public good, integrity 

in all they do, and loyalty to their 

oath as lawyers. And preserving the 

protected confidence that comes 

with practicing law should be selfimposed 

demands. 

That’s about all I could distill 

from everything I read about legal 

professionalism. There just wasn’t 

much sexy there. 

So this will not be a talk on 

professionalism. Instead, I want to 

tell you about some of the people 

whose lives have crossed with mine 

over the years. In order to do so, we’ll 

need to travel back in time some 

50-plus years to the Birmingham of 

the 1960s. 

Birmingham was a troubled 

place trapped in a tumultuous 

time. It had fittingly become the 

primary battleground of the civil 

rights movement. Everything in the 

city was strictly segregated. Schools, 

buses, restaurants, movie houses, 

waiting rooms and water fountains 

were separated by race. The coneheaded 

dunces running the city even 

closed all the public golf courses, 

parks and swimming pools to avoid 

the catastrophe they predicted would 

occur if people of different races 

picnicked, swam or played golf in 

the same place at the same time. 

An astoundingly evil man 

named Eugene Conner, tellingly 

nicknamed Bull, was the 

Birmingham Police Commissioner, 

and he was charged with keeping the 

peace and protecting Birmingham’s 

population. To Mr. Conner, that 

meant using high-powered fire hoses 

to disperse parading school children 

and the siccing of snarling police 

dogs on peaceful marches in Kelly 

Ingram Park. I’m sure you’ve seen 

the pictures. The graphic statues in 

the park of those very large German 

shepherds straining mightily with 

fangs bared to escape their handlers 

is still a scary sight to me. 

At the time I was a very 

financially strapped student. First 

at Birmingham-Southern and then 

at Cumberland. A job was needed, 

and thanks to one of my professors 

at Southern, the Birmingham Post 

Herald offered me a one as a reporter. 

That job later led to a position at 

United Press International in its 

Birmingham Bureau. 

The Post Herald was 

Birmingham’s morning newspaper 

at the time. It had long enjoyed a 

national reputation for the quality 

and content of its editorial staff. It 

was filled with wonderfully talented 

people. Future Pulitzer Prize winner 

and New York Times editor Howell 

Raines worked the copy desk. Clark 

Stallworth, a prolific writer, author 

and award-winning reporter, was 

city editor, and famed feature writer 

Cletus Atkinson charmed readers 

with his bi-weekly columns about 

his dog and their escapes to a Bibb 

County lake. 

It was a sad and tragic time for 

Birmingham, but for a novice reporter 

it was absolutely intoxicating. I 

would cover Ku Klux Klan rallies 

complete with sheets, hoods and 

burning crosses on a Saturday night 

and spend Sunday mornings at one 

of Birmingham’s black churches 

listening to the stirring sermons of 

Dr. Martin Luther King, Jr., and 

other passionate preachers. 

Arthur Shores, one of 

Birmingham’s outstanding lawyers 

and father of Judge Helen Shores 

Lee, calmly shared coffee with me 

one Sunday morning at his kitchen 

table, despite the fact that a green 

box loaded with dynamite had been 

found near his home. Three other 

similar boxes were discovered the 

same morning. Thankfully the 

racist idiots who placed them were 

incompetent that day. 

Downtown Birmingham was 

the scene of many nightly protests 

where police cars were overturned 

and burned, store windows shattered 

and their contents looted. On several 

occasions, shotgun-armed state 

troopers roamed the dark streets. 

1.) Duard LeGrand 

The managing editor of the Post 

Herald was Duard LeGrand. The 

most genteel, cultured and elegant 

man I’ve ever known. His post was 

at a desk in the middle of a cluttered 

and noisy newsroom where he sat 

smoking his Camel cigarettes and 

reading the stories that flowed over 

20 


the wires and out of the teletype 

machines resting against the back 

wall, as well as the local stories 

written by the paper’s reporters. You 

would hear an occasional laugh, 

snort or muttered comment from 

Duard as he worked his way through 

the night’s writings. 

Dishonesty in reporting, 

laziness in fact finding and failure to 

confirm sources were not acceptable 

in Duard’s world. He demanded, and 

usually got, quality work from his 

staff. Despite his disappointment in a 

reporter’s occasional transgressions, 

Duard was invariably civil when 

discussing the shortcomings with a 

chastened writer. 

One of his most abiding traits 

was fairness. The reporter who found 

himself called on the carpet was 

always given a chance to voice his 

side of the story. Duard never aimed 

his criticisms at the person. His goal 

was to correct the sin, it was never 

to crucify the sinner. You always 

knew where you stood with Duard, 

and wherever that was, you were left 

standing with dignity intact. No one 

ever left a meeting with Duard head 

down and tail tucked. 

Everyone — from the lowest 

copy boy to the most powerful 

politician or influential business 

leader — was treated with respect 

and courtesy by Duard, no matter 

how much he might disagree 

with a person’s position. Duard 

acknowledged and accepted their 

right to disagree with him. But at 

the same time, he was no coward. 

He never hesitated to take on an 

unpopular cause if, in his mind, that 

position was the right one. 

The strength of Duard’s 

character continued when he later 

became editor of the Post Herald. 

He butted heads with a variety 

of people he felt were doing a 

disservice to Birmingham, the state 

and the country. But in so doing, 

Duard wrote editorials that were 

thoughtful, filled with facts, oldfashioned 

common sense and devoid 

of personal vendettas and sarcasms. 

There was no posturing. There was 

no preening. History has proven his 

positions were the right ones. 

Two incidents stand out in my 

mind when thinking of Duard and 

the Post Herald. The first was, of 

course, the Sixteenth Street Baptist 

Church bombing that took the lives 

of four girls. The horrific brutality 

of that morning almost brought the 

Post Herald newsroom to its knees. 

Since the bombing occurred on a 

Sunday after the Birmingham News 

had gone to press, the Post Herald 

was slated to be the first local paper 

to report on the disaster. 

Duard was devastated, for he 

knew what was coming — more 

bombings, more shootings, more 

riots and more deaths. However, he 

soon composed himself, marshaled 

the forces of the paper and prepared 

the story and the many sub-stories 

surrounding it for publication the 

next day. There was a job to be 

done, and in typical Duard fashion 

he made sure it was completed with 

honest excellence. His pride in, and 

fulfillment of, his work was never 

more evident. 

The second occurred late one 

night when the Associated Press 

National Wire suddenly sounded 

10 loud beeps, a signal that a story 

of major importance was about to 

be transmitted. Duard snuffed out 

his cigarette and shuffled over to 

the teletype machine as the words 

slowly rolled off the printer. He 

tore the article off and went back 

to his desk to read it. After a few 

moments, he moaned softly and 

began to cry. 

The story was about the murder 

of Mrs. Viola Luizzo, a 39-year-old 

Detroit housewife and mother of 

five who had traveled to Alabama to 

join the protestors. Mrs. Luizzo had 

been shot in the head while riding in 

a car with a black male. A member 

of the Klan, who was with three of 

his fellow Klansmen — including 

one who was an FBI informant — 

fired the fatal shot. Again, there was 

a story to be covered, and Duard set 

aside his personal feelings and went 

to work. 

Whenever I think of Duard and 

the effect he had on my life, I’m 

reminded of that kind, brilliant man 

who, by words and deeds, showed 

a room full of crusty, old reporters 

and a group of impressionable young 

people that integrity in one’s work, 

honesty in everything, civility, 

courtesy, respect and fairness to 

all, candor, dignity and courage — 

no matter how difficult or costly 

— are far more important than 

money, position or title. 

He was a true professional and I 

wanted to be like him. 

2.) Abe Berkowitz 

Halfway through my second 

year in law school, my wife Sheila 

got a substantial raise, which meant 

I could go on part-time status with 

UPI and work only the weekends. 

However, I still needed a supplement 

to my UPI wages. The UPI Bureau 

— a big name for a tiny office with a 

desk, a teletype transmitted and four 

teletype machines — was in a corner 

of the Post Herald newsroom, and I 

saw Duard every night. I happened 

to mention my hunt for a second job, 

and he immediately called a lawyer 

friend to see if there was an opening 

in his firm for a clerk. The lawyer 

was Abe Berkowitz. There was an 

opening. I was hired. And another 

person of heroic stature entered my 

life. 

A native of Meridian, Miss., 

and a graduate of the University 

of Alabama School of Law, Mr. 

B. couldn’t get a job anywhere in 

Birmingham in 1936. So he hung out 

a shingle and went to work, building 

a practice that ended up as one of the 

city’s most respected. A man short 

in height, Mr. B. always appeared 

much larger due to his bigger-thanlife 

persona and resonating bass 

voice. He ran his then-small firm as 

an extension of family, and the quiet 

competence and camaraderie that 

permeated its uncluttered hallways 

and neat offices were extraordinary. 

There was one set of rules, and they 

applied to everyone — from Mr. B. 

to the newest associate. There were 

no exceptions. 

Abe was a problem solver, a 

master communicator, and a skilled 

negotiator. Rich people and poor 

people, blacks and whites, Christians 

and Jews all sought Mr. B. when faced 

with difficulties. And he tackled 

their problems with an untiring 

dedication to their resolution. A true 

advocate for quality in all its forms 

— and a trusted confidant — his 

advice was never given to advance a 

personal agenda. 

Mr. B. was also called upon 

frequently to mediate lawsuits, 

contract disputes and disagreements 

between lawyers. These weren’t 


today’s formalized mediation 

sessions. They generally consisted 

of lawyers trying their differences 

at his feet and then, more often 

than not, accepting the Solomon-like 

solution. 

Abe’s demeanor in the 

courtroom and his courteous 

deference to judges were truly 

from the old world. Institutional 

respect was something Mr. B. 

demanded, not only from himself, 

but from everyone who worked with 

him. And in the negotiations and 

mediations, Mr. B. made certain that 

his opponent always had a way to 

save face. Embarrassing opposing 

counsel or making them look bad in 

front of a client was of no interest to 

Mr. Berkowitz. 

He was a stickler for compliance 

with the rules of law and lived by 

a strict code of ethics far more 

stringent than the one which governs 

lawyers today. I remember one day 

watching him write a check to his 

firm for $1.20 to reimburse it for 

stamps he had used on personal 

mail. 

Abe’s noble and quiet generosity 

gave hope to the lives of many. When 

it came time to pay tuition for my last 

semester at Cumberland, there wasn’t 

any money to be found, and dropping 

out was a growing fear. Somehow, 

Mr. B. got wind of the situation 

and invited me to lunch, where we 

talked about everything from politics 

to public transportation. Abe never 

learned to drive and took the bus to 

work to and from work every day. 

The one thing we didn’t talk 

about was my financial situation. But 

after lunch, Mr. B. steered me to the 

First National Bank, introduced me 

to this somber, dark-suited banker 

and told him to loan me enough 

money to pay the tuition. He did, 

and I was able to finish law school. 

It wasn’t until several years later, 

long after the note was paid, that 

I learned Mr. B had guaranteed it. 

He never told me. I am sure that 

very conservative banker would have 

never considered making a loan to a 

penniless law student in the absence 

of Abe’s signature. 

Abe didn’t limit his passion to 

law. He was heavily involved in a 

number of civic organizations and 

was a vital force in the attempts 

to reform Birmingham’s city 

government. He also was one of the 

nation’s leaders in supporting the 

state of Israel. Mr. B. was always 

getting these mysterious packages 

and letters from Israel — many of 

them stamped “Official Business.” It 

wouldn’t surprise me a bit if he had 

been a secret member of the Mossad, 

Israel’s version of the CIA. 

Mr. B.’s name comes up often 

when older Birmingham lawyers get 

together. There must be a thousand 

stories about him. My favorite has 

to do with, of all things, umbrellas. 

Abe owned several and was never 

without one. He would catch the 

bus every morning with one tucked 

under his arm, and it would be 

there when he returned home that 

night. Umbrellas were expensive 

possessions back then. 

On one occasion, Mr. B. took 

four of them to a store downtown for 

repairs. That left him without one 

for the day, a rare occurrence. After 

lunch at a restaurant on 20th Street, 

Mr. B. absent-mindedly picked up 

an umbrella as he was leaving. Its 

owner, a rather humorless stout lady, 

saw what had happened and ran 

Mr. B. down on the sidewalk, a 

napkin still tucked in her blouse. 

In reclaiming her umbrella in the 

middle of a crowded sidewalk, she 

accused this most law-abiding man 

of being a thief. 

Thoroughly chastised and 

not wanting to repeat his honest 

mistake, Mr. B. retrieved the four 

newly renovated umbrellas that 

evening before getting on the bus 

to go home. Who should be sitting 

on the front row of the bus but the 

stout lady? Upon seeing Mr. B. and 

his four umbrellas, she looked at 

him and sarcastically said,” Well, I 

see that you have had a very good 

day!” 

When I think of Mr. B., I 

picture this physically small man, 

dressed to the nines, sitting in 

his beautiful office surrounded 

by a lifetime of achievement. 

He was a walking library of 

history and literature, a man 

who recognized that the law he 

so loved was always changing and 

that a dedicated practitioner must 

constantly re-educate himself. 

Words like clear communicator, 

master persuader and problem 

solver link themselves with dignity, 

integrity, honesty, civility, respect, 

fairness and candor when Abe 

comes to mind. 

He was a true professional, and 

I wanted to be like him. 

3.) Judge Clarence Allgood 

Chief Judge Sebourn Lynne 

didn’t like criminal cases, so he 

and Judge Clarence Allgood, 

along with Judge Hobart Grooms, 

decided that Allgood would handle 

all such matters. I suspect half the 

moonshiners in North Alabama had 

an extra snort of white lightning 

when they got the news. No criminal 

defendants or convicted felons were 

ever treated with more courtesy than 

in the Allgood courtroom. Judge 

was always looking for a drop of 

goodness or a dollop of redemption 

that would allow him some leeway 

in deciding whether a man went to 

prison or went home. 

In his dealings with lawyers, 

Judge was fair but firm. He expected 

counsel to be prepared, to respect 

the courtroom and to represent 

their clients as they would want to 

be represented. He made certain 

lawyers honored their positons as 

officers of the Court and in the 

process, handled their client’s cases 

in a competent manner. 

In chambers, Allgood was no 

different. The judge defendants saw 

on the bench was the same judge his 

office staff saw when the robe came 

off. There was no hidden agenda or 

oversized ego in play. Judge did not 

like problems and, like a successful 

lawyer, he promptly returned all 

telephone calls, answered each letter 

on a timely basis and responded in 

some fashion to every request made 

of or to him. 

One of Judge Allgood’s great 

strengths was his recognition 

and acceptance of human frailty 

and weakness. He had enormous 

sympathy for a man with no 

education who was forced to make 

a batch or two of whiskey so he 

could feed his family when no jobs 

were available. Many of the criminal 

defendants who came before him 

were repeaters. 

As new judges were added, they 

took over part of Judge Allgood’s 

criminal docket. Al Bowen, a former 

Assistant U.S. Attorney and retired 

22 


criminal defense lawyer, tells a 

wonderful story of counseling with a 

defendant shortly before his trial was 

to start in Judge Allgood’s court. The 

man, a long-time moonshiner, was 

no stranger to Allgood’s docket. As 

the defendant and Al were discussing 

the case, Judge Jimmy Hancock, 

a stern-faced, no-nonsense, newlyappointed 

judge, walked into the 

court and took the bench. The 

obviously surprised and suddenly 

panic-stricken moonshiner turned to 

Al and cried out in fear, “Where’s 

Clarence?” 

Judge Allgood was a masterful 

writer when forced to put pen to 

paper. Despite his writing talent, 

Judge believed memorializing the 

spoken word was a special event, and 

he often said, “Never write anything 

unless you have to.” I doubt such a 

philosophy would survive in today’s 

practice of law where everything 

must be confirmed in writing. 

Like Duard and Mr. B, Judge 

Allgood recognized what he felt 

was an obligation to help those less 

fortunate. He worked enthusiastically 

to raise money for the Crippled 

Children’s Clinic and was involved 

in numerous civic endeavors. One 

story above all exemplifies his 

compassion and generosity. It’s 

best told by his long-time secretary, 

Virginia Tidwell, as quoted in Steven 

Coleman’s biography of Judge 

Allgood. Next to his wife, a petite 

woman named Bully, Ms. Tidwell 

was the most important female in 

Judge’s life. Here is her story: 

It was a cold day in 1972 

and the cavernous courtroom was 

especially cold. A young, slightly 

built and ill-appearing young man 

from Jasper was on trial, facing 

a three-year sentence for stealing 

government property. As the day 

wore on, Judge Allgood noticed that 

the shivering defendant, dressed in a 

short-sleeved shirt and thin trousers 

appeared to be having a chill. Judge 

motioned his long-time bailiff to 

the bench, whispered something to 

him, and the bailiff disappeared into 

the judge’s chambers. He returned 

with Judge Allgood’s favorite old 

green checkered sport coat. The 

trial was interrupted momentarily 

when, without a word, the bailiff 

helped the defendant into the jacket. 

At the end of the day, the young man 

was led away to serve his sentence, 

still wearing Judge Allgood’s coat. 

Ms. Tidwell got on the judge when 

he returned to the Chambers, asking 

what Mrs. Allgood would say when 

he arrived home in shirt sleeves. 

“Ah, the Judge said, Bully never 

liked that coat anyway.” 

When I think of Judge Clarence 

Allgood, I can almost hear the creak 

of those leather bindings in his 

wooden legs as he walked to his car 

or to lunch. His left arm was always 

hooked around my right elbow. I like 

to think it was out of affection and 

not need. 



4.) Ed Conerly 

In the fall of 1970, I left the 

quiet courtrooms and hushed 

chambers of the Federal Building 

for the loud, profane and chaotic 

offices of McDaniel Hall & Parsons. 

McDaniel Hall was a combination 

of “Animal House” and MAD 

Magazine. But it had work, lots and 

lots of it. Files were stacked in chairs, 

on office floors and overflowing 

cabinets. If you wanted a career in 

the courtroom, you couldn’t do much 

better. 

At one end of the office was 

Jack Hall, a tough ex-Marine, who 

was either sitting behind his desk 

dictating on a file or running laps at 

the YMCA. One of 13 children born 

to a country preacher in Holly Pond, 

Jack appreciated hard work and the 

fruits of that labor. He never spent a 

penny without agonizing over it. 

At the other end was Bill 

McDaniel. Bill never met a dollar 

he didn’t spend, a sporting event he 

wouldn’t bet on, or a drink he didn’t 

enjoy. But he was a whiz in defending 

automobile accident cases and spent 

untold days successfully trying them 

– and just as many nights drinking 

and eating with clients, potential 

clients, or anyone else he could talk 

into joining him. 

McDaniel and Hall were the 

original Odd Couple. Jack was 

serious. Bill was fun. Jack never 

took his coat off. Bill always wore 

pajama bottoms under his suit pants. 

Jack expected long hours of work in 

the office every day. Bill expected 

long hours of play in a restaurant 

every night. Jack was looking for 

associates to rack up large billing 

fees. Bill was looking for associates 

to pick up large dinner bills. 

It was a no-win situation for a 

new associate. I needed help. 

I turned to a lawyer who had 

joined the firm as a partner a month 

or so after me. He was a lateral hire, 

from what was then Lange Simpson 

and now is Adams & Reese, where 

he had been its lead trial lawyer for 

years. His name was Ed Conerly. 

If Duard LeGrand was tea and 

crumpets and Abe Berkowitz was 

champagne and caviar, Ed Conerly 

was buttermilk and cornbread. He 

was tall, a little unkempt and usually 

looked a bit haggard. 

My request for a short meeting 

was greeted by Ed’s suggestion that 

he would pick me up the next morning 

and we would have breakfast and 

talk. That sounded good to me 

until Ed said he would be waiting 

outside our house at 4:00 a.m. The 

next morning, I was standing by the 

mailbox when Ed drove up. I got in 

the car, Ed handed me a Styrofoam 

cup of coffee from a nearby diner, 

and we headed to the office. And so 

began my true education in the art of 

practicing law. 

A pattern was set that would 

continue off and on for nine years. 

If neither of us had work outside 

the office, Ed would swing by and 

get me at 4:00 a.m. on the dot. 

We would work for an hour or so 

and then walk across the street for 

breakfast. Usually Ed talked and I 

listened. You could give Ed a few 

facts in a case, and he would come 

up with the most compelling opening 

statement or closing argument you 

would imagine. And his ideas for 

examination and cross-examination 

were brilliant. 

Ed, who died last year, was 

the complete lawyer. He was a 

comprehensive researcher who had 

the uncanny knack of remembering 

not just published opinions and their 

names, but where they might be 

found in the reporters. His brief 

writing and written correspondence 

were elegant in their simplicity and 

clarity. Legalese never held much 

sway with Ed. You wouldn’t find 

a “prior” or “subsequent to” in a 

document that originated from 

his office. “Wherefores” and 


“thereafters” never had a chance. 

I don’t think Ed had an enemy 

in the world. He was respected and 

looked up to by lawyers and judges. 

He never failed to accommodate the 

needs of his fellow practitioners and 

could hold a confidence as good 

as any priest. Ed had the courtly 

manners of the Old South, and his 

work ethic was legendary. 

When a client hired Ed, they got 

a true advocate. One who spared no 

effort in learning everything there 

was to know about his client or its 

products. Ed knew that to persuade 

a jury, he must believe in the case. 

One of his clients was Ford Motor 

Company. Ed was called upon to 

defend the first Pinto case tried in 

America. 

For you younger people, Pintos 

were Ford’s first stab at making a 

subcompact car. For reasons of cost, 

space and weight, the gas tank and 

filler cap were positioned behind the 

rear axle rather than in front or on 

top of it. Pre-production crash tests 

by Ford, all videotaped from various 

positions, revealed punctures in the 

gas tank and a breaking loose of the 

filler pipe in relatively low-speed 

rear impacts where the tanks were 

shoved into the axle. 

The slow-motion shots 

highlighted the spewing of fuel from 

the holes in the tank and spray rom 

the torn pipe. It was obvious that gasfed 

fires were going to be a problem. 

And they were. Ed convinced himself 

that there was no one safe place in a 

car for a tank filled with gasoline – 

and that the behind-the-axle position 

was as good as any. Ford’s in-house 

engineering expert agreed and gave 

glowing testimony in deposition. 

Unfortunately for Ford, a Jefferson 

County jury disagreed and rendered 

a verdict in excess of $1 million, a 

huge sum in those days. 

Afterwards, the Ford expert, Ed 

and I packed our briefcases and 

headed to the parking deck to go 

home and lick our wounds. No one 

said a word. When the elevator doors 

opened on the third level of the deck, 

sitting directly in front of us was 

a Pinto belonging to Judge Claude 

Hughes’ bailiff. No one had said a 

word. As we walked by the Pinto, 

our in-house expert turned around, 

gave it a healthy kick and said, 

“Goddamn piece of shit.” No one 

else said a word. I’m not sure even 

that dissuaded Ed from the belief 

that his client’s product was a good 

one. 

Ed never overtly demanded 

anything from those working 

with him. He simply went about 

the practice of law with diligence 

and integrity, and in so doing set 

a shining example. The loyalty his 

attitude engendered made certain no 

one was going to let Ed down with 

slipshod work. 

Outside the office, Ed had 

a vibrant and interesting life. He 

was one of Alabama’s foremost 

authorities on Indian artifacts and 

had an enormous collection of 

arrowheads and spear points. He 

was held in high esteem by antique 

dealers and museum curators for his 

expertise in Chinese porcelain, art 

glass and timepieces. 

We tried other cases together 

and spent hours working as a team 

in preparing for them. Most were 

victories, thanks to Ed’s courtroom 

skills and talent. He was the best I 

ever saw. 



Lives of dignity and simplicity 

As life moved on, priorities 

changed, ambitions got derailed, and 

options narrowed. I never got to be 

an editor like Duard. I never got to 

really run a law firm like Mr. B. I 

never got to the federal bench like 

Judge Allgood. And I quit going 

to work as early as Ed when I 

left McDaniel Hall. But each man 

has shadowed me for the past 45 

years, making certain the lessons 

they taught were neither ignored nor 

forgotten. 

The memory of Duard’s big 

black pencil carefully editing a 

sloppily written story is a constant 

reminder to write clearly, succinctly 

and truthfully. 

Mr. B.’s soothing assurances 

that all problems could be solved 

by good lawyers working together 

without rancor have often saved me 

from behavior that would later be 

regretted. 

Judge Allgood’s constant 

compassion, tempered only by his 

staunch belief in the rules of law, 

has provided needed courage to take 

and hold positions in the face of 

opposition. And to do it, hopefully, 

in a manner that would have made 

Judge proud. 

And Ed, well, Ed taught me 

how to be a lawyer, and I can’t 

imagine knowingly doing anything 

that would disappoint him. 

They all lived lives of dignity 

and simplicity with respect and 

fairness to everyone, and with the 

moral strength so necessary when 

faced with decisions laced with 

ethical and legal consequences, the 

kind lawyers confront every day. 

All were financially successful, 

and yet neither money nor material 

things were the motivating factor 

in their careers. The money that 

came to them was a by-product of 

the skills and effort with which they 

conducted their chosen professions. 

Their aims were simply to be 

the best. No matter what measuring 

stick was used. 

Four men. 

All different. 

All alike. 

All professionals. 

They’re warmly nestled together 

in my memory by lives and careers 

filled with fairness, dignity, honesty, 

ethics, a sense of right and wrong, 

civility, respect and a love for the 

rules of law and all they mean. 

In a career spanning almost four 

decades, W. Michael Atchison’s 

dedication to civil trial litigation has 

resulted in serving as lead counsel 

in a variety of cases throughout the 

Southeast, both in state and federal 

courts. 

24 


Distinguishing Due Care from 

Standard of Care in Medicolegal 

Cases — Does it Matter? 

By Robert A. Beatty, M.D. 

Over the decades, 

resolution 

of medical 

malpractice 

lawsuits has 

evolved almost 

exclusively to the 

negligence rule, applying standard of 

care that factors in technical changes 

in medicine. These by necessity 

require expert witnesses for defense 

and plaintiff in order to place the 

issues into the context of a changing 

world. The prescient and very 

workable formula by defining the 

standard “that the doctor must have 

and use the knowledge, skill, and care 

ordinarily possessed and employed 

by members of the profession in good 

standing” has universal acceptance. 1 

However, the use of the word 

“care” is not defined. Care could 

imply “due care,” which traditionally 

is dealt with by the rule of strict 

liability. But as Epstein has written, 

the similarities between negligence 

and strict liability are so great that 

the vast majority of cases are decided 

the same way under each rule. 2 

As a neurosurgery expert witness 

for both plaintiff and defense, I have 

observed that due care issues have 

become more common. However, 

both due care and standard of care 

frequently play a role in the same 

case. Due care is traditionally 

considered under the strict liability 

rule and is usually a prima facie case 

based on manuals and protocols, 

which prescribe warning, proper 

usage, etc. in an industrial setting. 

In the medical world, national 

consensus groups of well-meaning 

experts have published goals and 

treatment algorithms while being 

careful not to state that deviations 

from these recommendations breach 

the standard of care, for example, 

whether the management of the 

head injured patient does or does 

not require a brain scan. 3 The same 

reluctance to establish standards 

applies to journal and textbook 

authors and editors who recognize 

there are few absolutes in medicine. 

A dogmatic statement appearing in 

a medical book or article or even a 

judicial decision does not by itself 

establish a definitive standard of 

care. 

There are a number of reasons 

why due care cases have become 

more common. In 1996 the Joint 

Commission on Accreditation of 

Health Care Organizations adopted 

a formal policy addressing events 

in hospitals which were described 

as “sentinal events” severe enough 

to cause death, permanent harm, 

or severe temporary harm which 

requires intervention to sustain life. 4 

These events chiefly include due care 

deviations, common sense deviations 

constant in time and independent of 

technical changes, such as surgery 

on wrong body part or wrong 

patient, instrument or object left in 

a surgical patient, wrong blood type 

transfusion, radiation treatment to 

wrong part of body, infant abduction 

or discharge to wrong family, rape 

in the acute care setting, unexpected 

death in a full term infant and suicide 

in the acute care setting. Most of 

these are prima facie cases. 

It is not always clear who is 

responsible for these events, the 

physician or a hospital employee. 

For example, an older edition of 

Prosser and Keeton on torts states 

that the operating surgeon may be 

required to “keep an eye” on the 

sponge count rather than leave it to 

the nurse. 5 Those of us trained in 

the Harvey Cushing neurosurgery 

tradition are taught never to lift one’s 

eyes from the surgical field. Further, 

the universal use of the microscope 

and, recently, robotic surgery make 

it nearly impossible for the surgeon 

to keep track of the sponge count. A 

deviation here is the responsibility 

of the hospital and does not fall 

under the concept of respondiate 

superior. By making these comments 

I have shifted a rather clear due care 

deviation to one of standard of care, 

not so clear. 

In 2001 the term “never events” 

was introduced by The National 

Quality Forum, which lists the 

sentinal events plus others totaling 

29 currently. 6 Included on this list 

are several that should never happen 

but do happen even with the best 

of care. Examples include serious 

injury or death of a patient who falls 

or is able to get out of restraints 

or climb over bed rails. Another 

is when a patient receives care by 

someone impersonating a health care 

provider. These are not due care 

guidelines with the same certainty as 

wrong person or wrong site surgery. 

One of the most significant 

never events is death or serious injury 

because of failure to follow up or 

communicate laboratory, pathology, 

or radiology results. One of the few 

due care protocols, developed by 

the American College of Radiology, 

is the requirement for a radiologist 

to communicate a significant 

radiographic result to the ordering 

physician. 7 This protocol outlines 

timely, common sense exchange of 

information, constant in time and 

unrelated to technological changes, 

a due care concept easily understood 

by a jury. 

Another growing influence on 

medical care has been the emphasis 

on cost containment. In each of the 

five medical journals I read monthly, 

there are one or two articles justifying 

certain medical practices based on 

cost containment, usually limiting 

testing. Twenty years ago there were 

26 


none. We are now seeing defense and 

plaintiff lawyers using the support of 

these articles, a recommendation not 

always in the patient’s best interest. 

Medical decisions are often made by 

reasoning that a certain complication 

or outcome seldom occurs. If 

a complication never occurs, this 

argument is supportable. But if 

there is even a 10% occurrence, the 

argument is not supportable. The 

10% who have been hurt have been 

hurt 100% by a cost containment 

medical decision and present a strong 

case both for defense and plaintiff 

depending on the facts of the case. 

My experience with 

neurosurgery malpractice cases 

is that the majority are based on 

communication deviations or failure 

to diagnose and treat new neurologic 

symptoms after surgery in a timely 

fashion. 

Consider the patient who has a 

spinal operation, and during the first 

night is found by the nurse not able 

to move her legs. The nurse clicks 

a template item on the electronic 

record that asks about movement 

but fails to communicate this change 

to the surgeon nor enters into the 

record details of his examination. 

The electronic record entry has, in 

his mind, fulfilled his responsibility 

but has created a false sense of 

security. This is a due care: common 

sense deviation. Among possible 

measures hospitals should take 

to prevent this deviation would 

be focused orientation of nurses 

requiring notification to a head nurse 

at the minimum. Electronic record 

modifications that require entering 

a comment in the record for each 

template positive response could be 

required by insurance companies 

with whom the hospital has contracts. 

Consider also the case of an 

obese man who had a back operation 

and spent three weeks at home 

essentially chair-ridden. At his first 

post-operative office visit, he notes 

on the questionnaire that he has 

had some shortness of breath. The 

physician assistant concludes that 

the back brace is the cause, clicks 

the electronic template but fails to 

ask any follow-up questions such 

as presence of chest pain, cough, 

or shortness of breath while seated. 

The patient returns home and a few 

hours later suddenly dies from a 

pulmonary embolus. Here again, 

the electronic record has created 

a false comfort level. This case 

has elements of both due care and 

standard of care. There was no 

communication between the assistant 

and the surgeon, who is ultimately 

responsible for establishing 

standards of communication in 

his office. Communication in the 

hospital between the physician and 

his own assistant introduces the issue 

of responsibility of credentialing the 

assistant by both the physician and 

the hospital. 

An egregious, timeless deviation 

from due care is for the physician not 

to tell the truth to the patient. All 

too frequently I have encountered 

cases of misplaced spinal screws 

used in spinal fusion surgery that 

the surgeon has identified but did 

not communicate to the patient 

when the patient asked why he or 

she developed a numb, weak leg. 

A misplaced screw by itself is not 

necessarily a deviation from the 

standard of care. Not explaining the 

complication to the patient when 

asked is a deviation from due care. 

Another due care situation 

which I consider close to a never 

event is the failure of a surgeon 

to diagnose and treat immediate 

post-operative patient symptoms, 

especially neurologic symptoms of 

numbness, weakness, loss of bladder 

and bowel control, cognitive changes, 

level of consciousness changes and 

intractable pain. Although other 

surgical specialties experience postoperative 

complications, neurologic 

complications are often devastating 

and demand timely diagnosis and 

treatment. There is a golden, timedependent 

window of opportunity 

that, if used, may prevent the patient 

from worsening or may even reverse 

some symptoms. Some of these 

cases are communication failures 

by the hospital personnel or by the 

physician’s own assistant, placing 

them closer to a due care case than 

standard of care. If the surgeon is 

fully aware of a neurologic change, 

decides not to evaluate, generally by 

a radiographic study, communicates 

his reasoning to the patient or family, 

the case is judged by standard of 

care. The surgeon might determine 

that for some reason an invasive 

diagnostic procedure or transporting 

the patient for an MRI scan might 

cause more neurologic damage or 

even death. In this case the surgeon 

must document his or her physical 

findings and reasons for any 

actions he or she might or might 

not take. This documentation greatly 

strengthens a defense case to the 

standard of care rule. Relying only 

on documentation by a physician’s 

assistant considerably weakens the 

case, placing it to be judged by the 

due care rule. At deposition, the issue 

often arises regarding one expert’s 

qualifications to testify about the 

standard of care by a physician in 

another specialty. In general, one 

specialty is not qualified to testify 

about another specialty’s standard of 

care, but if there are stand-alone or 

parts of care that can be identified 

as due care violations then, in my 

opinion, one expert specialist is 

permitted to testify about another 

specialty. 

Finally, does it really matter to 

distinguish due care from standard 

of care? Probably not, but lawyers, 

expert witnesses and judges might 

find it helpful in crystalizing their 

strategies, opinions, and judgments 

in these complicated cases in which 

both rules may play a role. 

Robert A. Beatty, M.D., has more 

than 50 years of experience acting 

as a neurosurgical expert witness 

for both plaintiff and defense. He 

is currently an emeritus clinical 

professor of neurosurgery at The 

University of Illinois School of 

Medicine in Chicago. 

1 

Keeton W. P. Prosser and Keeton on The Law of 

Torts. Fifth Edition. West Publishing Company, 

St. Paul, Minn. 1984, p.187. 

2 

Epstein R. A. Case and Materials on Torts. 

Aspen Publishers. New York, Eighth Edition 

2004, p.141. 

3 

Guidelines for the Management of Severe Head 

Injury. Brain Trauma Foundation, AM. Assoc. 

Neurological Surgeons. The Joint Section of 

Neurotrauma and Critical Care, 1995. 

4 

The Joint Commission on Accreditation of 

Health Care Organizations. Sentinal Event Policy. 

1996. 

5 

Keeton. op cit; 204. 

6 

National Quality Forum. Never Event. 2011. 

7 

Cascode P, Berlin L. American College of 

Radiology Standard for Communications. Am J 

Roent 1999; 1439-1442. 


The Importance 

of Civility in the 

Legal Profession 

By Chief Justice 

Lorie Skjerven Gildea, 

Minnesota Supreme Court 

Editor’s Note: The following 

speech was presented at the 

National Board Meeting of the 


in Minneapolis on May 14, 2016. 

Good morning. Thank 

you so much for 

having me today. I am 

here this morning to 

express my gratitude. 

I want to first thank 

all of you for coming 

to Minnesota for your meeting today. 

I also want to congratulate our 

Minnesota members for being selected 

ABOTA’s Chapter of the Year. 

I have a tremendous amount 

of respect for the work of your 

organization, especially your focus 

on professionalism, ethics and 

civility in the legal profession. I’ve 

seen the power of civility from both 

in front of and on the bench. And 

I firmly believe that civility and 

professional ethics are the core of 

a fair and impartial judicial system. 

As Chief Justice Warren Burger 

once stated, ”Lawyers who know 

how to think, but [who] have not 

learned how to behave are a menace 

and a liability — not an asset — to 

the administration of justice.” The 

Chief continued by suggesting that 

“the necessity for civility is relevant 

to lawyers because they are living 

examples — and thus teachers — 

every day in every case and in every 

court. And their worst conduct will 

be emulated…more readily than 

their best.” 

I agree with the Chief. I fear the 

irreparable harm that can be done 

to the public’s trust and confidence 

in the court when attorneys — and 

judges — fail to hold themselves to 

the highest professional standards. 

Our State Supreme Court is 

responsible for judicial and lawyer 

discipline in Minnesota. We see the 

devastating impact these breaches 

have on the lawyers involved, 

their clients, and on our system 

as whole. Each time we issue an 

opinion in a discipline matter, we 

shine a light on behavior that can 

erode respect for the judiciary. And 

further jeopardize the reputation 

of our legal profession. But we 

must do this work. We must police 

ourselves. 

The people who enter our 

courtrooms are often facing some 

of the most difficult or challenging 

moments in their lives. They 

deserve to see judges and attorneys 

acting in a way that reflects 

what is best about our nation’s 

justice system, and be able to take 

comfort that no matter the 

outcome, their particular case 

will be heard in a fair, impartial 

28 


and respectful manner. 

I don’t think any judge or 

attorney would disagree with 

those aspirational goals for our 

profession. And yet, on occasion, 

we are reminded of how far we have 

to go to reach those goals. I see it 

when I am called upon to decide on 

discipline for attorneys or judges. 

The public sees it when the 

media reports stories of boorish or 

unethical behavior in the courtroom. 

You see it in your own practice 

— whether it be another attorney 

cutting corners, playing fast and 

loose with the rules. Or creating 

a hostile work environment in the 

courtroom or in your offices. 

If we are to combat incivility 

and unethical behavior in our 

profession, we need to first 

understand its origins. When I look 

at this issue, I tend to see incivility 

falling into two broad categories: 

The first is when a judge or attorney 

loses sight of the gravity of court 

proceeding. Or fails to recognize 

the inherent power of the courtroom 

on the lives of those who enter it. 

When an attorney or judge 

starts to view the courtroom as just 

another place of business, it can 

lead to behavior that does not befit 

the dignity of our judicial system. 

Similarly, an attorney or judge can 

quite easily fall into routines — and 

act in ways that appear too casual 

or informal for a court of law. 

The result of this behavior 

is that the people who enter our 

courtrooms lose faith that the 

people trying and hearing their 

case are not taking the matter as 

seriously as they should. 

One of the most important 

lessons I have learned from serving 

on the bench is that people who 

come to court generally are willing 

to accept a court’s decision — even 

if it is an unfavorable one to them 

— as long as they believe they 

were given a fair and thorough 

hearing. It is when people believe 

that the court system treated their 

case flippantly or dismissively that 

they lose faith in our ability to 

resolve their issues and mediate 

their disputes. 

In the Minnesota Supreme 

Court courtroom located in our State 

Capitol, we have an inscription 

chiseled above the main public 

Ultimately, 

teaching the value 

of civility is about 

helping attorneys 

understand that 

they can be 

zealous advocates, 

while remaining 

valued colleagues, 

trusted peers and 

respected courtroom 

opponents. 

entrance that faces the bench. 

The inscription is a quotation 

from John Locke: “Wherever law 

ends, tyranny begins.” I find that 

inscription so valuable. It serves 

as a reminder of the important 

responsibility that comes with 

being in that courtroom. 

I think all attorneys can benefit 

from taking time occasionally 

to remind themselves of their 

important role in our justice system 

— and how the arguments and 

decisions we make so deeply impact 

the lives, rights and freedoms of 

others. What one of us does is a 

reflection on all of us. 

The second way that we see 

incivility creep into our work is 

when a legal professional begins to 

treat the law as just another contest 

— a competition to see which side 

comes out on top and which side 

is the loser. When attorneys focus 

their practice of law in this way, 

they often begin to see civility as 

a sign of weakness. Taken to the 

extreme, they may begin to see our 

rules of conduct and procedure as a 

roadblock to their personal success. 

As experienced trial attorneys, 

the people in this room can have 

a profound impact in helping 

combat this type of thinking in 

our profession. Most importantly, 

we can hold ourselves to the 

highest professional standards and 

exemplify to others the power of 

civility. 

But we can also take a more 

active role. There is such a 

great need in our profession for 

experienced attorneys to support 

and mentor young attorneys. Part of 

that mentoring needs to be teaching 

others that civility in the law is not 

a sign of weakness. Nor does it 

mean that we can’t argue, disagree 

or levy justifiable criticism. In 

fact, civility at its core stems from 

the assumption that people will 

disagree. Civility provides us with 

a path to do so in a way that is both 

fair and respectful. I know that all 

of you understand this. 

We are grateful for the 

tremendous contributions of 

ABOTA’s Civility Matters ® program. 

And all of you here today who 

have helped promote the importance 

and value of civility to others in 

our profession. This impressive, 

nationwide effort has helped reshape 

the conversation over professional 

ethics among attorneys across the 

country. It has helped reinforce that 

civility is not only an important 

responsibility we all share, but a 

key element of providing effective 

counsel to clients. 

Ultimately, teaching the value 

of civility is about helping attorneys 

understand that they can be zealous 

advocates, while remaining valued 

colleagues, trusted peers and 

respected courtroom opponents. 

It’s about reminding attorneys of 

the crucial role they play in the 

justice system. And the incredible 

responsibility they are entrusted 

with in being members of our legal 

profession. 

It’s about showing attorneys 

that civility is a tool to preserve the 

fair and impartial administration 

of justice. And that professional 

ethics help provide a level playing 

field for everyone who enters our 

courtrooms. 

Thank you, again, for your 

invaluable efforts to promote 

civility in the legal profession. 

Thank you for all you have done 

— and all that I know you will do 

for the cause of justice in our great 

nation. 


This is not your traditional 

ethics program! 

Civility Matters presentations provide a 

guide to proper conduct for lawyers. 

ABOTA chapters host Civility Matters programs throughout 

the country. The hour-long programs are fast-paced, 

interactive and entertaining. CLE is available in most states. 

To find out more: 

800.932.2682 

CivilityMatters@abota.org 

www.abota.org

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