Masters of the Courtroom SM. Professionalism

Transcription

1 Masters of the Courtroom SM Professionalism The Hon. Helen Ginger Berrigan, USDC - EDLA Pauline F. Hardin, Jones Walker LLP Roma Kent, Federal Public Defender - EDLA Course Number: Hour of Professionalism CLE December 12, pm 5 pm

2 Helen "Ginger" Berrigan is a United States District Court Judge in the Eastern District of Louisiana and a New York native. She was appointed to the bench by President Bill Clinton in March of She served as Chief Judge of the Eastern District from 2001 until Prior to her appointment as a federal judge, she was a criminal defense attorney for sixteen years. She was also a staff attorney to the Governor's Pardon, Parole and Rehabilitation Commission, and Press Secretary to Mississippi civil rights leader, Charles Evers. Prior to coming South, she served as a Legislative Aide to Senator Joseph Biden and as a free-lance staff reporter to many regional publications. Judge Berrigan is the author of Louisiana Criminal Trial Practice, 2 nd and 3 rd Editions. In addition to her experience as a journalist and lawyer, she has served on the boards or as a member of several legal organizations, including as President of the Louisiana American Civil Liberties Union, President of the Criminal Law Section of the Louisiana State Bar Association and as a member of the Louisiana Association for Criminal Defense Lawyers, New Orleans Association for Women Attorneys, the Louisiana Sentencing Commission, and the Federal Bar Association. She is an Adjunct Professor at LSU & Loyola Schools of Law. She is regular speaker at Continuing Legal Education programs sponsored by area law schools, bar associations and other professional organizations. Among her awards are the Louisiana State Bar Association s Pro Bono Publico Award; the Special Achievement Award from the Louisiana Council for Equal Rights; the Louisiana Capital Defense Project Special Achievement Award; the Justice Albert Tate, Jr. Award from the Louisiana Association of Criminal Defense Lawyers; the YWCA Role Model Award and the _Elaine R. Fisher Award_ presented by the Federal Bar Association for exemplary community, public & charitable service. In recent years, Judge Berrigan has participated in numerous international rule of law programs, sponsored by the State Department, in the area of criminal and human rights law. She has made multiple trips to Pakistan, Azerbaijan,and Bangladesh, as well as single trips to Malawi, and the Republic of Georgia, training judges, prosecutors and defense lawyers. She also has taken part in a death penalty program in China and lectured at several laws schools in Beijing. Judge Berrigan received her Juris Doctor in 1977 from Louisiana State University Law School, an M.A. in Communication from American University in Washington, D.C. and her undergraduate degree from University of Wisconsin.

3 Pauline Hardin is a partner at Jones Walker LLP. in the firm's Business & Commercial Litigation Practice Group, litigating criminal and commercial issues. She has served as the head of the Business & Commercial Litigation Practice Group at Jones Walker. She frequently represents individuals and entities in complex litigation involving parallel civil, regulatory and criminal issues. Ms. Hardin previously worked for the United States Attorney's Office for the Eastern District of Louisiana and served as both First Assistant United States Attorney and Chief of the Criminal Division. Prior to that time, she served as an Assistant District Attorney in charge of the Orleans Parish Fraud Unit. A fellow of the American College of Trial Lawyers since 1994, she has served on its Federal Criminal Procedure Committee.

4 Roma Kent is a 1982 graduate of Loyola Law School. She has been an Assistant Federal Public Defender since July She was with the staff attorney s office of the United States Fifth Circuit Court of Appeals from September 1984 to September 1986 and with the central staff of the Louisiana Fifth Circuit Court of Appeal from September 1982 to September Roma retired from the New Orleans Police Department as a th th lieutenant-platoon commander in the 5 District (upper and lower 9 Ward). She is also a graduate of Louisiana State University and the Academy of the Sacred Heart.

5 Professionalism Panel "Lawyers in Wonderland" Judge Helen G. Berrigan Roma Kent Pauline F. Hardin 1

6 You have a bench trial coming up in a maritime case. Several disputed issues of law are involved and have been briefed, but no ruling has been issued. You learn that the trial judge, who is not well versed in maritime law, recently went on an all day fishing trip with a maritime law professor from a local law school. You are familiar with this professor's views on maritime law and they are contrary to your arguments on the issues in this particular case. You are concerned that the judge may have discussed the case with the professor on the fishing trip. What do you do? What should the judge do, if anything? Assume the above, but add that the trial judge advises all the parties to the case that there was a discussion with the professor about "the law" that relates to the case, but that they should be assured the judge will draw independent conclusions. What do you do? What should the judge do, if anything more? Assume the above, but instead of a law professor, you learn the judge has gone on the fishing trip with another judge from the same court who is experienced in maritime law and likewise holds views adverse to the positions you are taking in the case. What do you do? 2

7 You are a prosecutor in a capital case. The defendant is indigent and has appointed counsel. The defense files a motion for an ex parte hearing to requestfundingfor for various unnamedexperts experts. The defensearguesthe prosecution shouldn't be privy to the defendant's requests because it would reveal trial strategy and because the prosecutor isn't required to reveal to the defendant expert assistance it seeks. What should the prosecutor do, if anything? What should the judge do? In the same case, the judge contacts the prosecutor to inquire whether the, j g p q prosecutor is retaining a jury selection consultant and if so, how much that consultant is costing. The judge likewise wants to know how much the prosecutor's psychological expert is being paid. The judge explains that he wants a "level playing field." You surmise that the defense has requested fees for such consultants. What do you tell the judge? Is the judge's communication appropriate? 3

8 You have had several run ins in past cases with the judge's law clerk who, it seems to you, has an imperial attitude. You have had words with this particular clerk, who has been with the judge a long time. You are concerned that this clerk is influencing the judge's attitude towards you. You have an important motion coming up and very much want to have oral argument, both because you feel it would be helpful but also because you want to address the judge directly about the issues, and not through the law clerk. What do you do? 4

9 You are in trial. The judge has handled the voir dire, and told the jury the various components of a trial. It is now time for the opening statement. You begin by telling the jury that an opening statement is like a road map but the trial judge interrupts you and says, "I have already told them what an opening statement is. Move on to what you think the evidence will show." Is the judge acting appropriately? What do you do? During the direct examination of a witness, the trial judge repeatedly interrupted the lawyer to ask a question or clarify a question or answer. None of the judge's questions or clarifications were prejudicial, but the interruptions are disrupting the attorney's concentration and rattling the witness. What should the lawyer do? 5

10 A witness is testifying before the jury directly contrary to a deposition previously given. Counsel asks for a sidebar and so advises the judge, showing the judge the deposition. The lawyer wants the judge to warn the witness of the dangers of committing perjury. Assuming the judge agrees there is a direct and material conflict in the testimony, what should the judge do? 6

11 A lawyer filed a motion and memorandum in support of the motion, raising several issues. When the ruling comes out, the decision is adverse. However, the lawyer's main legal points were not addressed and some of the facts set forth as established and used to justify the judge's decision were in fact disputed. Other facts, contrary to the judge's ruling, were ignored. The lawyer wants to file a motion for reconsideration but the basis is simply that the judge "blew it" missed the issues and got the facts wrong. What should the lawyer do? 7

12 It's the middle of a jury trial. There are few objections and the judge is resting in his chair, eyes closed. He is not asleep but he looks bored. A couple of the jurors have apparently noticed and have smiled and elbowed each other. Both lawyers are concerned that the judge's demeanor is sending a message to the jury that the case is not important. What should they do? 8

13 The bench trial occurred six months ago and the matter was taken under advisement. No ruling has issued. The lawyer has called chambers several times, politely inquiring of the law clerk when a decision might be forthcoming. She is consistently told "any day now" but still nothing happens. Her client is exasperated with her and with the justice system. Everyone needs closure. What does she do? 9

14 A lawyer has an out of town case in a small community. When he goes to the pretrial conference, it is obvious that the judge and opposing counsel are friends outside of court. During the conference, the judge talks about a social event they attended together and makes other "insider" type remarks. A settlement conference is scheduled at which the clients will be brought. The out of town lawyer is concerned about the judge's potential favoritism and also the appearance of bias in front of his client. What should he do? What should the other lawyer do? 10

15 Trial is scheduled for a month from now and it requires a great deal of trial preparation. The lawyer notices in a flyer he receives that the judge is scheduled to give two talks at an out of state convention the same week as the trial. When the lawyer inquires of the judge's chambers whether the trial will be "bumped" the lawyer is simply told that the case is still on the calendar and be prepared to go forward. Is there anything else the lawyer can do? Is it appropriate for a judge to hold trial dates, knowing the trial cannot be in fact held at that time? 11

16 The judge is notorious for being surly, highhanded and rude to lawyers and litigants. He routinely in open court makes demeaning comments about the lawyer's abilities, interrupts their arguments. What can a lawyer do? 12