decisions || front matter

Front MatterSource: Litigation, Vol. 35, No. 3, DECISIONS (Spring 2009)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760705 .

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The Journal of the Section of Litigation American Bar Association

Vol. 35 No. 3 Spring 2009

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Table of Contents Litigation Spring 2009 Volume 35 Number 3

Opening Statement-Robert L. Rothman-1

From the Bench: The Ethical Effective Advocate-Thomas M. Reavley-3

DECISIONS

Thoughts on Safeguarding Judicial Independence: An Interview with Justice Sandra Day O'Connor-Elaine E. Bucklo and

Jeffrey Cole-6

My Experiences Representing a Guant?namo Detainee-H. Candaee Gorman-10

Wrestling with the Judge Who Wants You to Settle-Campbell Killefer-17

Trial Teams and the Power of Diversity-Karen L. Hirschman and Ann T. Greeley, Ph.D.-23

The Modern Beauty Contest-Andrew Schaeffer, Gary Rindner, and Yuri Mikulka-29

The Trial on Paper: Key Considerations for Determining Whether to File a Summary Judgment Motion-Michele L. Maryott-36

Settling Civil Litigation: Odds and Ends-William Lynch Schaller-42

Telecommuting-?Scott L. Nelson-47

The Forensic Neuropsychological IME-Michael J. Hannan, III-52

Legal Lore: Magna Carta-Robert Aitken and

Marilyn Aitken-59

Sidebar: The Real World-Kenneth P. Nolan------ 63

Advance Sheet: Thoughts on Impeachment-Robert E. Shapiro-65

Literary Trials: The Black Cat-Edgar Allen Poe-72

Litigation (ISSN 0097-9813) is copyright ? 2009 by the American Bar Association, all rights reserved. Litigation is published quarterly by the Section of Litigation, American Bar Association, 321 N. Clark St., Chicago, IL 60654. Periodical postage paid at Chicago, IL, and additional mailing offices. Postmaster: Send address changes to Service Center, ABA, 321 N. Clark St., Chicago, IL 60654. Annual subscription price for Section of Litigation members is $10 and is included in Section membership dues. Any mem? ber of the ABA is eligible for Section membership. Institutions and individuals not eligible for ABA membership may subscribe for $140 per year. Individual copies are $40, plus postage and handling, and are available from the ABA Service Center at 800/285-2221. Issues published more than two years ago are available from William S. Hein & Co., www.wshein.com, 800/828-7571.

Material contained herein does not necessarily represent the position of the American Bar Association or the Section of Litigation. All material in Litigation is protected by copyright. No part of the text or images may be reproduced; stored in a retrieval system; or transmitted in any form or by any means, electronic, mechanical, photocopy, recording, or otherwise, without the prior and express permission of the publisher.

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Decisions Litigation is all about decisions. We make them every day, based on reasoning, experience, research, and maybe a touch of intuition. We argue about them and bill for them. We also counsel clients about the law so they can make informed decisions of their own. But when conflicts arise that adver? saries cannot resolve, our legal system confers on a special few?jurors and judges?the power to make enforceable decisions.

This issue looks at decisions of all kinds, on matters rang? ing from judicial independence to the personal choice of

working outside the office.

? A judiciary that is independent, and whose judgments arc

followed, requires constant safeguarding. This is one of the observations of former Supreme Court Justice Sandra Day O'Connor in an interview with two Litigation editors, Hon. Elaine E. Bucklo and Hon.

Jeffrey Cole. Justice O'Connor supports a move away from the purely partisan elections of judges.

? A decision to respond to an e-mail in 2005 changed the life of author H. Candace Gorman, who agreed to undertake the defense of two detainees at Guant?namo. She writes about the difficulties in representing one

detainee, Abdul Hamid Al-Ghizzawi, who has been lan?

guishing at Guant?namo for seven years, while she has been required to work with secret documents at a secret office where she has her own secret drawer.

? Does the trial judge in your case remain an impartial decision maker if he forces you into a settlement con? ference that he conducts? Campbell Killefer doesn't think so. That judge becomes a "settlement judge" who can create serious problems, and risks, in your case. Mr. Killefer suggests several different tactics that may help you when a judge wants you and your client to settle.

? When it comes time to choose a trial team, what should

you look for? According to Karen L. Hirschman and Ann T. Greeley, Ph.D., it's diversity. Every case is dif? ferent, and so is every venue. When you assemble the

right trial team made up of diverse members?in terms of race, gender, and ethnicity?you create personality and

power dynamics that can win over judges and juries.

? In this new economy, clients are adjusting the way they select law firms. Authors Andrew Schaeffer, Gary Rindner, and Litigation Associate Editor Yuri Mikulka dispel the mys? tery and frustration behind business pitches, and explain what works and what doesn't work. They note that some things never change, like the positive response to a thoughtful and researched presentation that is tailored to the client

? A motion for summary judgment is not always appropriate. But Michele L. Maryott writes that, in most cases, you should

prepare for filing that motion just as you prepare for an even? tual trial, laying the groundwork for it right from the start. She cautions that there are downsides to filing a motion for

summary judgment, especially if you think your chances of

winning are slim.

? Settlement is the most common outcome of litigation, but each settlement is potentially unique. Author William Lynch Schaller looks at the basic ground rules for anyone venturing down the settlement path, and writes about the odds and ends involving releases, insurance, protective orders, trade secrets, and the special problems inherent in paying someone hush money.

? Do you ever imagine working away from the office, at your home, or at some remote place far from the madding crowd? Scott L. Nelson often works 3,000 miles outside his Washington, D.C., office, in a small town in Oregon. He writes about telecommut?

ing, how new technology has spurred its growth, and the very practical things you need to do to make it work.

? An important tool used to prove?or disprove?that a person has cognitive impairment or mental disability is the foren? sic neuropsychological independent medical examination

(LME). Attorney Michael J. Hannan, III, explains how this

type of testing is done, what it can show, and how it can be used at trial.

?Stephen Good

Litigation Spring 2009 Volume 35 Number 3



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