by Nefertari Elshiekh On July 23rd, we wrapped up this year's Summer Forum, with the sixth panel focusing on Criminal Law & Death Penalty. The panelists included: Brandi Harden, Harden & Pinckney, PLLC Callie Heller, ABA Death Penalty Representation Project Daniel Levin, White & Case Bridgette Stumpf, Network for Victim Recovery of DC Liz Wieser, D.C. Office of the Attorney General’s Public Safety Division D.C. Office of the Attorney General's Public Advocacy Division's Stephon Woods facilitated our conversation. Bridgette began by talking about the wide array of services with which her organization provides victims. In DC, which sits at a unique nexus of federal and local law, survivors face additional barriers with regard to accountability and transparency because of the lack of elected prosecutors that many local jurisdictions have. Brandi then went on to describe how growing up in Texas as the only black child in her elementary school impacted her view of the law. Her firsthand experiences with an unfair justice system and her Texan perspective shaped her decision to become a lawyer as she felt she had a responsibility to ensure poor people had exceptional representation even if they couldn't afford a lawyer. Brandi highlighted one staggering statistic: Harris County, in Texas, has more death sentences than anywhere else in the country, and this resonated with Callie, who practiced in Harris County. Callie pointed out the lack of resources provided to attorneys involved with death penalty cases. She helps connect pro bono counsel, who are crucial in filling those gaps, with where the need is greatest. Callie also alluded to the interplay of racial injustice in the work she does through a policy example in North Carolina, where the Racial Justice Act allowed death row inmates to see a commutation of their sentence to life in prison if race was a factor in imposing the death penalty. However, the Act was later repealed, which caused contention over what happens to the six inmates that had applied for or were granted relief while the law was in effect. In June, the North Carolina Supreme Court held that applying the repeal retroactively violated the constitutional prohibition on ex post facto laws. This is a prime example of the importance that policy work plays alongside individual representation in addressing systemic racism in the criminal justice system. In continuing this discussion of racial injustice, the panelists addressed alternative methods to prosecution and the role the Black Lives Matter movement plays in each of their respective organizations. Liz elaborated on the D.C. Office of the Attorney General's restorative justice program, which addresses accountability for some crimes by focusing on the harm done to victims. This approach aims to empower victims while still holding offenders accountable. Bridgette echoed the impact of such a program by noting that when asked, many victims did not want to necessarily engage in a punitive process, but rather wanted to have a conversation that allowed them to elucidate the harm that was done to them. Brandi expressed her hope that the Black Lives Matter movement is exposing the need to redirect resources to better serve and protect the community. From his own experience in working on cases that address gang violence, Daniel described how the people involved in gang violence often had long criminal histories that started with minor crimes committed when they were juveniles. Without another alternative, they were "thrown into the criminal justice system, and it was a spiral that led to more and more criminal behavior." He stressed that as a society we have not done enough to find alternatives to help individuals and give them opportunities to get out of that spiral, but it can be beneficial to everyone to shift resources to these areas. He ended with encouraging the audience to "have discussions, invite people in, and listen to them." Catch up on the conversation and discover pro bono opportunities on social media using #SumFo2020. Nefertari Elshiekh is the 2020 Washington Council of Lawyers Summer Intern.
Washington Council of Lawyers hosted a Litigation Skills Series training on Mediation on Friday, February 7, 2020. The training gave participants a strong foundation of negotiation theory followed by the opportunity to put what they learned into practice. Melissa Reinberg, mediator and adjunct professor at Georgetown University Law Center and Executive Director of Negotiation Works, led the group through a discussion on effective client preparation, how to use leverage in negotiations, and how to manage the mediation process to a successful outcome for clients. Then the sixteen participants participated in two mediation sessions, one as an attorney and one as a client. Through a landlord-tenant fact pattern rife with (intentional) inconsistencies and vital facts known only to the landlord and the tenant, participants were tasked with coming up with a mediation strategy and then putting that strategy into use with an experienced mediator. After the mediations, the Honorable John M. Mott, Senior Judge at The Superior Court of the District of Columbia and current neutral with JAMS Mediation, Arbitration and ADR Services addressed the participants. He spoke about the importance of mediation as a tool for advancing justice and advocating for our clients. The program concluded with a debrief led by Melissa Reinberg, in which participants put together best practices for preparing clients and guidance on the best roles lawyers can play during the mediation. The observations and universal takeaways included those listed here. Best Practices for Attorneys in Preparing Clients: Discuss mediation process Empower client Make sure client understands process is voluntary Discuss what is likely to happen at mediation Find out what client wants and why (i.e., client’s interests) Explore what the client thinks the other party wants and why (ie, the other party’s interests) Help client identify best/worst outcomes Help client identify walk-away alternative/likely outcome if there’s no agreement (ie, BATNA) Consider monetary and time costs to client if case is not settled in mediation Discuss whether client’s goals are realistic in light of the facts and the law Figure out what evidence to bring/present in the mediation Clarify what client is comfortable sharing; distinguish between sharing with all parties vs just the mediator Discuss overall mediation strategy Clarify roles of lawyer and client during mediation (ie, who will speak when) Set up how client will communicate with lawyer during the mediation Decide who will respond to offers (client or lawyer) before going into the mediation Best Roles for Attorneys in the Mediation Process: Guide client but don’t take over Simplify and clarify the process/facts/evidence for client; translate legalese Manage details (eg, do the math calculations) Help client stay focused on current issues being discussed Help prevent client from being sidetracked by collateral disputes Help the client control his or her emotions Manage relations between parties Expand and clarify your client’s perspective Flesh out and reinforce the client’s “good story” Keep an eye on the legal issues, and put client’s facts in legal context (if it’s helpful) Be prepared to jump in and address harder issues so client doesn’t have to Help the client take a step back to evaluate offers and options before accepting or rejecting them Know when to take a break in order to speak to your client about assessing or reassessing options Spin out the contingencies and consequences of the proposals being discussed Engage in reality testing; make sure options under consideration are workable for all Guide your client’s negotiation strategy Mediator comments: Counsel clients by reality testing and let them know what could happen if mediation fails In joint sessions, remember the other side may be hostile or view your client as the enemy Go in with a problem-solving mindset Use mediator as the neutral party he/she is We are grateful to our four mediators Steve Altman, Nancy Cohen, Tiara Jackson, and Carolyn Lerner for their expertise and guidance during the simulations. Their critiques in real time were vital to the rich learning experience and future success of our participants.
Our Best Practices in Pro Bono session on January 15 focused on the Social Science of Doing Good. Our conversation was led by an all-star lineup of panelists: Andrea Mangones from Kids In Need of Defense, Dr. Larry Richard from LawyerBrain, and Kitty Wach from Miller & Chevalier. The Best Practices Session was expertly moderated by Paul Lee from Steptoe & Johnson LLP. More than 40 pro bono coordinators from law firms, legal services organizations, government agencies, and law schools attended the program. The panel discussed the reasons that lawyers do pro bono, and what methods are effective (or ineffective) for encouraging lawyers to do more pro bono. Dr. Larry Richard highlighted his research on personality traits that set lawyers apart from the general public. He cited his personality study research that demonstrates lawyers tend to be highly skeptical, but lack resilience and sociability. He noted that we are quick to try to use sticks and carrots to motivate pro bono lawyers, but they are often blunt tools that can have unintended consequences. Using the personal touch to build relationships with lawyers to encourage them to do pro bono can be more effective. Kitty Wach highlighted the variety of ways that law firms can encourage and support pro bono work, including making pro bono a mandatory requirement, asking about lawyers' pro bono practice during performance reviews, and including news of pro bono victories alongside news of commercial case victories in firm-wide emails from law firm leaders. Andrea Mangones shared her experience that having colleagues talk about pro bono clients they have helped, or hearing from clients themselves about the impact having a pro bono lawyer had on their lives can be the best ways to encourage lawyers to take on new pro bono cases. To learn more about lawyer personality traits, how to encourage volunteerism, and the benefits for the volunteer of doing pro bono work, check out these resources. We Volunteer To Help Others, But Research Shows How Much It Helps Us, Too, a January 13, 2020 Washington Post article by Jamil Zaki Supporting Justice: The Work of Pro Bono Lawyers, a 2018 report from the ABA Standing Committee on Pro Bono and Public Service Accountability 101, a 4-part blog post series by Dr. Larry Richard on the psychology of how to hold law partners accountable Herding Cats: The Lawyer Personality Revealed, an article describing the personality traits that set lawyers apart from the general public, also by Dr. Larry Richard Pre-Suasion: A Revolutionary Way to Influence and Persuade, by Dr. Robert B. Cialdini Influence: The Science of Persuasion, also by Dr. Robert B. Cialdini Our final two Best Practices in Pro Bono Sessions for this year will take place on Tuesday, March 10, from 8:45-10:15 am, and on Wednesday, April 29, from 12:30-2:00 pm. Look for an email with registration information to circulate soon; if you are not currently a member of Washington Council of Lawyers, join today so you won't miss out! We are grateful to Fried Frank for hosting our entire Best Practices in Pro Bono series! Thank you!
Oh, what a night! Thank you to everyone who joined us at our 2019 Awards Ceremony, and an extra-special thank you to our award recipients for the work that they do to serve our community. We could not have been more excited to honor one of our own, Jen Swedish, with the Above and Beyond Award. While her role as treasurer of the Board of Washington Council of Lawyers is largely unseen, the positive impact she has made on the Council is unmatched. Jen is a key component of our leadership team, and her stewardship of our finances for the last seven years has meant that we have been able to grow and adapt to meet any challenge. It was an honor to have Board Member and past president Paul Lee accept our Law Firm Award on behalf of Steptoe & Johnson LLP. Through the efforts of Barbara Kagan, immediate past Pro Bono Counsel for more than 25 years, and with Paul's continuing guidance, Steptoe is a strong leader in the pro bono community. We were proud to recognize the firm's commitment to pro bono service and the myriad ways Steptoe has supported Washington Council of Lawyers in furthering our mission. Marisa Schnaith with the U.S. Department of Labor exemplifies exactly what one person can do with hard work and a drive to help. We were excited to present her with our Government Pro Bono Award. Not only did she dedicate 100 hours of individual pro bono service last year, but she is instrumental in the continuous innovation and expansion of her department's pro bono activities. She is an outstanding example for all government lawyers. Our Legal Service Award recipient Trisha Monroe from Legal Aid is one of those amazing individuals who is both warm and fierce at the same time. She makes her clients feel secure, perhaps for the first time in a very long time, and is dedicated to walking with them as they seek safety, security and healthy relationships. Over her career, she has been a tireless advocate for more than 6,000 victims of domestic violence and a kind and caring mentor for her family law/domestic violence colleagues across the public interest community. Lastly, were thrilled to award Nicole Austin-Hillery, Executive Director of U.S. Programs at Human Rights Watch with the Presidents Award for Public Service for her legacy of powerful civil rights advocacy on behalf of individuals and for systemic change throughout her career. Nicole's vision, dedication, and leadership have been a true inspiration to the many law students, lawyers and lawmakers who have had the privilege of working with her. She is a true hero. Now, more than ever, our community needs opportunities to come together, celebrate our accomplishments, reflect on the positive influences we have on the lives of our neighbors, and recharge our collective professional batteries. We were thrilled to share this evening with so many wonderful advocates and friends! Keep up the good work and know that the Washington Council of Lawyers stands ready to assist, support and encourage you.