Letters to the Editor

The Journal's Sea Change


I write to compliment you on your excellent article on the Alaska fishing industry and its accident record, “The Cemetery Sea,” May. The extensive research writer Lynda Edwards did made your article informative, interesting and readable.

Your article far exceeded the usual ABA Journal articles, which lack depth and background re­search, and end up having little that is informative, interesting or worth the time to read. Please pass on to the editors these comments from a 40-year member of the ABA.

Roger V. Stageberg
Minneapolis


What have you done to the Journal? May’s cover looked like something from Outside magazine.

I fully expect to see “Death Above 28,000 Feet” in the next issue.

May 2009’s was the first issue of the ABA Journal that I’ve actually wanted to read cover-to-cover since … ever, really. Good work!

Norm Osborne
Las Cruces, N.M.


As a former fisherman who worked in the Bering Sea, I am familiar with the cast of characters and found your article entertaining. However, it lacks the sort of depth and objectivity I’ve come to expect from the ABA Journal.

While the article presents several perspectives from plaintiffs lawyers, it includes none from a vessel owner or defense lawyer. This obscures legitimate issues with regard to the Jones Act, negligence and unsea­worthiness standards, and efforts to improve safety in the fleet.

For example, John Merriam boasts of his ability to convince the Wash­ing­­­ton Supreme Court not to follow the 9th U.S. Circuit Court of Appeals in regard to maintenance under the act. Of what significance is this to an ac­tion based on a vessel sinking in Alas­­ka, with claims under federal mari­time law? I would expect discus­sion of removal and its implications for parties to Jones Act litigation.

More regrettably, the article fails to tell us the procedural status of the claims. If litigation is pending, then I can understand the reluctance of the owner and its counsel to speak. The author could still contact industry organizations such as the North Pacific Fishing Vessel Owners’ Asso­ciation to counter the zealous advocacy of the plaintiffs bar.

If the case has been decided, it would be nice to learn of the outcome, especially relating to novel claims such as the applicability of the Liability Limitation Act to these facts and how the court addressed allegations of foreign ownership. Nonetheless, if not yet decided, the article should at the very least identify the case by number and court.

Thank you for a dramatic, engaging depiction of an interesting area of law. Next time, please make an ef­fort to be impartial with the stylized facts, rather than selling the plaintiffs’ case, and put a little more discussion of the law into a legal publication.

One other thing: Only the most in­sensitive journalist would put a description of a bait chopper accident in the same paragraph as a crew­mem­ber’s career change to be a manicur­ist. That was in very poor taste.

James Mize
Los Angeles


While I am not very familiar with the maritime laws, I am connected to the Alaska Ranger in a different way. My husband was on the Munro during the rescue, and some of my friends helped care for the fishermen who were transported to the cutter.

Although the crew of the Munro did not receive due recognition from Coast Guard officials (unlike the res­­cue swimmers and air station crew), they knew the opportunity to save lives was reward enough. I’ve heard that it was during the Alaska Ranger case that many realized or were reminded why they do what they do.

I’d like to honor the crew because they too faced a dangerous situation, persevered against the elements of the Bering, and worked to refuel the helicopters so more saves could be made. I am very proud of all the Coast Guard personnel involved, and my heart goes out to the families who lost loved ones in the icy waters that morning.

Thank you for such a riveting article! The timeline was very helpful, and the journalism—while perhaps biased—created a stunning visualization of the event.

Angela Hammett
Kodiak, Alaska


AIRING HEIRS’ GRIEVANCES

Regarding “In The Cross-Heirs,”  May: Thanks to the ABA Journal and the Heirs’ Property Retention Coalition for giving voice to this vexing problem for heirs’ property owners.

It is surprising that entire com­munities have gone so long without assistance from experts and advocates who promote social and economic justice. This issue represents a great opportunity to empower individuals and communities by clarifying ownership rights and assisting in planful deliberations for land utilization going forward. Thanks to all who are coming together to help.

Robert Wynn
Madison, Wis.


Anna Stolley Persky’s article re­fers to cases in which survivors of Hurri­cane Katrina were unable to access governmental assistance because they owned heirs’ property. In fact, Katrina revealed that heirship problems are pandemic across the Gulf Coast and affect thousands of property owners.

More to the point, the article omits that this crisis was met by the largest assemblage of pro bono attorneys ever to address the problem. Work­ing with the Lawyers’ Com­mittee for Civil Rights Under Law and the Mississippi Center for Justice, the firm of DLA Piper has committed scores of attorneys and support staff to assist more than 100 individuals in Mississippi. To date, the project has unlocked nearly $1 million in homeowner assistance grants for those with title and heirship problems.

The problem of heirs’ property in African-American families stems directly from a long history of racial exclusion and from barriers to legal assistance that existed in the South for most of the 20th century. The legal profession has a special responsibility to address this problem.

David Tipson
Lawyers’ Committee for Civil Rights Under Law
Washington, D.C.


NO PRIDE FOR ‘LIONS’

I am somewhat surprised that all except one letter to the editor concerning “7 Over 70,” March, praised these so-called “Lions of the Trial Bar.” I read the article hoping to be inspired. When I finished, I was ashamed and disappointed.

These lawyers are represented as “the lawyers most of us secretly wish we could be, if only for a day.” Rath­er than fearing that they are a breed “on the verge of extinction,” one might hope that they become extinct.

Imagine thinking that there is a “disturbing and unhealthy trend” afoot because very few cases actually go to trial today. Imagine actually waking up in the morning hoping to “[kick] somebody in the ass that needs it.” Imagine boasting of physically assaulting a witness in the court­room, joking that a judge referred to a defendant as a “little turd” or admitting to deliberately lying to a jury about the source of a quote.

Are we to emulate attorneys who can’t seem to find a better adjective than the F-word or who refer to people as being “full of shit”? Imagine practicing law believing that mediation is “bullshit,” that the root of mediation is “mediocrity,” and that it is “actually an effort by elitists in our society to control how disputes are decided.” Apparently this is how lawyers can become billionaires.

Then, to add insult to injury, you ask, “In the age of the vanishing trial, how can the young lawyers of today develop the kind of art and skill their elders wield so well in the court­room?” Spare me.

Let me remind you and all at­tor­neys of the February President’s Mes­­sage, “A Lawyer at Heart,” in which ABA President H. Thomas Wells Jr. writes, “We can learn from Lincoln’s approach to prac­ticing law: … ‘Discourage litigation. Persuade your neighbors to com­promise when­ever you can. Point out to them how the nominal winner is often a real loser: in fees, expenses and waste of time. As a peacemaker, the lawyer has a supe­rior opportunity of being a good man. There will still be business enough.’ ” This is the mark of the truly professional lawyer.

Michelle Rippon
Asheville, N.C.


DUTIES TO CLIENT COME FIRST

Thank goodness that “Follow the Middle Road,” May, George A. Kuhlman’s attempted rationalization of the ABA’s most recent ethical faux pas, reminds us that the ABA rules have no binding effect on lawyers. This is a move that should be ignored! The ABA’s compromise of the duties of client loyalty and confidentiality to accommodate lawyer mobility is not the mes­sage our self-regulated profession ought to be sending to the public.

By adopting the amendments to Model Rule 1.10, the ABA House of Delegates offers so-called screening as a mechanism for relieving an alleged burden that might otherwise inhibit lawyer migration. But what of client loyalty? Why must clients be required to run to some tribunal to protect their interests simply because their trusted counsel wants to change jobs and even switch sides?

We can only hope that our state ethics authorities reject the sophistry inherent in the new rule and stick with the guidance offered by ABA Formal Ethics Opinion 96-400, to wit: A lawyer’s pursuit of employment with a firm or party that he is opposing in a matter may materially limit his representation of his client, in violation of Model Rule 1.7(b). Therefore, the lawyer must consult with his client and obtain the client’s consent before that point in the discussions when such discussions are reasonably likely to materially interfere with the lawyer’s professional judgment (emphasis supplied).

No doubt—times are tough. However, maintaining the integrity of client loyalty and ensuring the protection of client confidences are bedrock principles that bolster our self-regulated status. These precepts must not be compromised simply to make job hunting a little easier.

Robert P. Cummins
Former Chair, ABA Standing Commit­­tee on Professional Discipline
Chicago


JUSTICE FOR WHOM?

I did as your article “Do-Over,” May, suggested and read the handbook that the Standing Committee on the Federal Judiciary uses to conduct its evaluations.

After doing so, two thoughts occurred to me. First, compassion, listed as one of the evaluation criteria, seems an odd trait to look for in someone whose job it is to interpret the existing law. Furthermore, it seems directly at odds with another criterion set forth in the handbook: freedom from bias.

If a justice would have compassion for one litigant, would he or she not be expressing a bias for one party to litigation and a bias against the other? Second, I have heard Presi­dent Barack Obama’s decidedly nonjudicial expression of the qualities he is looking for in a nominee: “the em­pathy to recognize what it’s like to be a young teenage mom,” or to be gay, poor or black. I will be interested to see whether the committee is able to continue to insist as it evaluates the next nominees that such qualifications may be desirable in a legislator but are the antithesis of what a U.S. Supreme Court justice ought to be.

Kevin Loughrey
Littleton, Colo.


IMPROVING E-DISCOVERY

Regarding “In Search of the Perfect Search,” April, about the endeavor to turn digital data into a collection of case-relevant documents: Has anyone considered the speed of indexing?

A typical Boolean search-indexing tool takes 9 to 25 gigabytes an hour to create an index for doing searching. To index multiple terabytes of data in a midsize-to-large corporation could take months.

Most companies have no way to do an efficient enterprise index with today’s current technology. The first step needs to be data culling for a corporate environment before in­dexing so that the target data set is in the gigabyte size range. The data culling operation could be done at hundreds of gigabytes an hour. Once the data has been culled down to a responsive set, then it makes sense to apply search tools.

Alan Steinberg
Tempe, Ariz.


Here’s an idea: why don’t we cre­ate a national data bank of keywords? The way it would work is lawyers would plug into the data bank their proposed lists of keywords, and the system would gen­erate a much more comprehensive list.

The data bank would be built via ongoing contributions of attorneys involved in e-discovery. So, if an attorney, using the national data bank, uncovers a relevant document that was not picked up via his use of the data bank’s list, he would add whatever the missed keyword was to the data bank, and the list would grow from there.

Rick Fein
Rockville, Md.


CORRECTION

In “The Born Prophecy,” May, Brooksley Born was incorrectly described as the first female to head a major law review. Mary Honor Donlon appears to have been the first, as editor of the Cornell Law Quarterly in 1919.

The ABA Journal regrets the error.

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