Meeting Its Obligations As A Member Of The Community And Improving Services For Its Corporate Clients

Tuesday, August 1, 2006 - 00:00

Anatole France famously observed more than a century ago that "the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." In some respects, the disparate impact of an evenhanded law may be unavoidable, but lawyers, who benefit handsomely from the legal system, have a duty to prevent limited access to legal services from compounding that problem.

At the same time, it is well known that business clients are focused on reducing legal fees and, in particular, are rewarding law firms who can efficiently staff matters. One area of particular concern among law firms that litigate large corporate matters has been securing top notch training for their new lawyers. Gone are the days when even large firms took in matters of all sizes and were able to train new lawyers in the crucible of small-scale business litigation. In house and NITA training for depositions and trial examinations have their place but are no substitute for work with real witnesses and in front of real jurors. The needs of the courts for attorneys in private practice to provide legal assistance to low income persons and to the courts in non-frivolous pro bono matters provide numerous opportunities for law firms and attorneys to satisfy their obligations to the community and to provide the training and skill sharpening needed by new lawyers in business law firms. Young Conaway Stargatt & Taylor, LLP has enthusiastically taken advantage of those opportunities.

One area where the firm has been active is with the Delaware District Court's Federal Civil Panel, which was formed to provide representation to indigent individuals who file potentially meritorious civil cases pro se . Most of those cases have been brought by prison inmates. Cases assigned are by appointment by the district court judges, and Young Conaway has taken four to trial before a jury - winning two - and has others under way. The Young Conaway lawyers appointed to these cases practice primarily in the Delaware District Court, and the cases have proven to be good vehicles to train and expose new lawyers to the district court judges, as well as to maintain the firm's exposure before the district court judges and satisfy our professional obligations.

The first case to go to trial was Atkinson v. Taylor. Atkinson was a prison inmate who filed suit against several Delaware Department of Correction officials, alleging that he had been harmed by extended exposure to environmental tobacco smoke ("ETS") in his cell. The cause of action he attempted to assert had been recognized by the Supreme Court, but not as Atkinson pled it. The court granted a motion to dismiss, without prejudice, and referred the case to the Panel. It was reviewed by Richard Morse, Chair of Young Conaway's Litigation and Trial Practice Section, who, after several meetings with Atkinson, filed a complaint that properly alleged an ETS claim. The complaint also asserted a more substantial claim: Atkinson alleged that he had been repeatedly harassed by one of the defendants in his ETS suit, a prison guard, in retaliation for that suit, and that he was otherwise mistreated by prison guards. Atkinson alleged that he had been deprived of food and medication, repeatedly subjected to unnecessary strip searches, verbally tormented over a prison intercom, and was otherwise harassed. The case was actively litigated, with five separate case dispositive motions and an interlocutory appeal. The case went to trial, where the primary issue was whether the jury should believe Atkinson, who had a record of crimes involving dishonesty, and two inmate witnesses, or the Department of Correction defendants and an inmate who supported their position. At the conclusion of a week long trial, the jury found for Atkinson on the harassment claim and awarded him $100,000. It rejected the ETS claim, finding that while Atkinson had been exposed to unreasonably high levels of ETS, he was not entitled to recover on that claim because the exposure did not cause actual injury.

John Shaw, a complex commercial litigation lawyer and chair of the firm's Intellectual Property Litigation Section, tried two Federal Civil Panel cases on behalf of indigent prisoners to a jury in 2005. In the first case, a prison inmate alleged that he suffered permanent vision damage as the result of an attack by corrections officers. The plaintiff claimed that he was taken to a secluded area outside the prison, ordered to perform kick a 300 pound log while on his hands and knees, and, when he refused, was tackled by eight prison guards and showered with pepper spray. Dawn Jones and Mike McDermott, a third year and first year lawyer respectively, took all of the depositions and each examined four witnesses at trial, including the defense medical expert. Shaw handled the document production, written discovery, summary judgment briefing, supervised the younger lawyers, and conducted the opening, closing, and several witness examinations at trial. After several hours of deliberations, the jury awarded both compensatory and punitive damages to the client. Shaw's second case was not successful, and ended with a defense verdict after three hours of deliberations.

As a result of this and other work, the Delaware District Court awarded the Caleb R. Layton Service Award to Morse in 2002 and 2004 and to Shaw in 2006 in recognition of service to the Court and to the bar of the Court.

Young Conaway not only takes on federal matters, but also volunteers in the Delaware state legal system. In 2005 the firm responded to a plea from Delaware Volunteer Legal Services for help in child custody cases. DVLS is confronted almost daily with requests for help from victims of domestic violence who are engaged in disputes over child custody, and the need for volunteer lawyers far exceeds the number the Family Court bar can supply. DVLS has sought to have several large firms form panels of lawyers who can handle the cases. Young Conaway put together a group of approximately 20 lawyers (both junior and senior) who expressed a willingness to handle the custody cases. The idea was that, while each attorney would take individual responsibility for cases, a group of lawyers handling one type of case in an area foreign to their everyday practices would develop expertise that could be shared among group members. These cases are often contentious and provide good stand-up training for our new lawyers. Because both junior and senior lawyers have volunteered, our newest lawyers can be supervised and trained as part of our volunteer service.

The firm's lawyers have also become active as attorney guardians ad litem in a program administered by the Office of the Child Advocate, a state agency that seeks to serve dependant and neglected children who have been removed from parental custody. Last year 32 attorneys represented the interests of children in 46 cases. The participating attorneys again ranged in experience from junior associates to very senior attorneys. For example, the busiest corporate lawyer in the firm, Dave McBride, represented three children, aged 7, 8 and 10, who had been placed in the state's custody when their mother was charged with endangering the welfare of a child and offensive touching.

The state placed the children with their maternal grandmother, who later sought custody. The father of two of the children, who had not had an ongoing relationship with them immediately prior to the state's acquiring custody, sought custody of his children and permission to relocate them to his home in Pennsylvania. After proceedings were begun to have the father's circumstances investigated by Pennsylvania authorities, he asserted that under the facts of the case he, as the father, was peremptorily entitled to custody. Thus, he sought termination of the investigation and dismissal of a pending custody petition. Believing that continuation of the investigation would be in the children's best interests, McBride wrote and filed a brief arguing that a decision awarding custody to the father would be premature. Along with one of Young Conaway's investigators, he also conducted his own investigation in Pennsylvania.

A custody decision was deferred, and the case proceeded through a number of hearings and conferences with the court. McBride repeatedly met with the children and the adults in their lives, and had the privilege of watching them clamber through Chancellor William Chandler's chambers, where they had been invited while visiting the Chancery courthouse. A little over a year after the case began, Family Court awarded custody of all three children to the grandmother.

Participation in pro bono work is important at Young Conaway, and is considered in compensation and advancement decisions. Young Conaway believes its pro bono clients benefit from its attorneys' efforts. But the firm benefits as well, from the personal and professional satisfaction the pro bono cases provide, and from the experience younger lawyers obtain in handling their cases.

Richard H. Morse and John W. Shaw are Partners of Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware. Mr. Morse chairs the firm's Litigation and Trial Practice Section. Mr. Shaw chairs the firm's Intellectual Property Litigation section. Both Mr. Morse and Mr. Shaw have been recipients of the Caleb R. Layton Service Award by the Judges of the United States District Court for the District of Delaware.

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