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Friday, July 30, 2010

Ind. Courts - Report on the second 3 interviews of Supreme Court semi-finalists

This is IU-Indy Law Prof. Joel Schumm's report on the 2nd three of the nine interviews for the Supreme Court - check here for the photos and links for group 2.

Boshkoff, Ellen E. - Attorney, Baker & Daniels

Ms. Boshkoff began with the second question, noting the “intimidating” nature of suggesting improvements to the judiciary. She noted she had reviewed the annual report and state of judiciary speeches, and as a lawyer “has opinions.” First, she noted that “access to justice” should continue to be a priority: IOLTA, court interpreters, committee on self-representation, and more recent efforts to help people facing foreclosure. She also thinks lawyers (and law schools) need to do more to help in these areas.

Second, expense and delay in civil litigation should be a priority. Judges have heavy caseloads. Some jurisdictions have a “rocket docket,” which requires cases to be resolved in a short period of time. The Court could look at the trial rules regarding discovery to help speed litigation. Alternative Dispute Resolution could also be used more and more effectively. Uniformity in court rules (among counties) could bring more efficiency. She noted a saying in her firm about not working harder but working smarter.

As to the question about her biggest accomplishment, Ms. Boshkoff noted she was instrumental in creating and implementing a policy for part-time work at her firm. She began her job at Baker & Daniels when she was five months pregnant. Although there was no policy at the firm allowing for part-time work at the time, she approached the management committee and a policy was adopted. The policy sets clear rules and allows for partnership credit.

In response to Chief Justice Shepard’s question about how discovery rules could be improved, Ms. Boshkoff mentioned “better case scheduling.” Although she is “the biggest procrastinator in the world,” deadlines are important to moving cases. She also suggested a better handle and limits on electronic discovery.

Mr. Feighner pressed Ms. Boshkoff on the difficulties of early mediation, when parties are set in their ways and unlikely to budge. She acknowledged lawyer and litigants are often “entrenched” early on, but even a 20% success rate would be a significant improvement.

In response to Mr. Gavin’s question about background and judicial philosophy, Ms. Boshkoff noted her work has involved “meaty” issues of complex civil litigation. She could add value to the Court by “digging in” on those and other cases.

In response to Ms. Keck question about “three pressing constitutional matters,” Ms. Boshkoff noted a relatively small number of cases of constitutional dimension coming before the Court and then recited some specific examples of cases that had been resolved, like voter ID, and issues concerning search and seizure that are fairly common.

When asked about statutory interpretation, she noted the use of the word “briefly” in a recent case. [The case is Griffin v. State.] She explained the Court started with the text of the statute and gave meaning to the intent in a pragmatic way.

Mr. McDonald asked Ms. Boshkoff to square her concern with access to justice with more limited discovery, especially in cases involving relatively small amount of money. Ms. Boshkoff clarified that any cost/benefit concern must allow access to litigants, but cited an example of a case where a party would need to review 30,000 documents to respond as a possible excess.

In closing, Ms. Boshkoff noted she had become “a big fan of the Indiana Law Blog” and “checks it every 20 minutes.” She reviewed questions asked the last round and noted she was not asked the characteristics of an ideal justice. She responded that she agreed with the answers of those in the first round: open mindedness, intellectual curiosity, ability to write clearly, and a passion for the law. She explained the most important characteristic as “absolute integrity” and faithfulness to the law.

As in her first interview, Ms. Boshkoff had obviously done her homework and brought a great deal of thought and energy to her responses.

Mulvaney, Karl L. - Attorney, Bingham McHale

Mr. Mulvaney explained his biggest accomplishment in the area of ethics, where he has spoken at CLEs, served on the professional responsibility committee at his firm since the 1990s, and fielded many calls from lawyers regarding specific cases. He mentioned his work in Outback Steakhouse, where a lawyer withheld critical information and the Court made clear that ethics counts.

Responding to possible improvements to the judiciary, Mr. Mulvaney expressed support for statewide funding of courts; he has been involved in mandate of funds’ cases and thinks statewide funding could help solve those issues. Second, he mentioned transcript preparation time in appeals. The 90-day period slows the process, and it can be a particularly problematic in child cases, which are supposed to be expedited. The rule could be amended to reduce the time to 45 (and maybe 30) days. (As an appellate practitioner, I think this is an excellent suggestion—but why not in all cases, not just child cases?)

Mr. Feighner observed that Mr. Mulvaney, unlike most candidates, practices frequently before the Court. Although Mr. Mulvaney has had a diverse client base, the commission knows little of his own views and likely approach to judging. Mr. Mulvaney recited Chief Justice Roberts’ analogy of calling balls and strikes and specifically mentioned deference to the legislature. His experience as court administrator would provide a “good base” of understanding the work of the Court.

In response to Mr. Trimble’s question about apporaching issues of first impression, Mr. Mulvaney cited with approval the approach taken by Chief Justice Shepard in Bolin v. Wingert. Courts should (1) survey other states and (2) apply the statute based on the words of the statute. Although Mr. Mulvaney did not say whether he agreed with the result, he did agree with the approach.

Ms. Keck asked Mr. Mulvaney to cite an ethical dilemma and how it was resolved. Mr. Mulvaney recounted a case where he was asked by Myra Selby to represent her minister. He ran a conflict check, which initially disclosed no problem, and entered an appearance days before the notice of appeal was due. After receiving the appearance, the opposing lawyer called and pointed out a conflict. Although Mr. Mulvaney could not withdraw immediately (because of the harm to the client), he did as soon as possible.

Mr. Trimble asked Mr. Mulvaney about his view of oral argument. Mr. Mulvaney explained he prepares by anticipating questions and would do the same as a justice, asking “those questions that help make the law work the way it should.” This was a topic of a series of ILB postings.

Steele, Brent E. - Attorney, Steele & Steele; State Senator

Sen. Steele noted his biggest professional accomplishment has been becoming a lawyer because it has allowed him to do many other things. More so than some other applicants, Sen. Steele pretty directly addressed two areas for the improvement of the judiciary. First, he expressed continued support for the courts efforts in the technology arena, noting law is not practiced on paper. Documents need to all be online. “The current generation does not check a wristwatch; they look at their iPods.” Second, he noted few legislators are lawyers and could benefit from a mini-law school (“indoctrination”) program to provide them some important legal background, concepts, and principles. For example, many legislators have never heard of “proportionality of sentences” or other terminology.

In response to questions about sentencing, Sen. Steele noted everyone wants to be “tough on crime,” but that cost is now beginning (and needs to be) weighed.

When responding to Mr. Trimble’s question about approaching issues of first impression, Sen. Steele said courts should look to other states to see how they have addressed the issue. The focus should be: “what can I do for a majority of the citizens that makes sense and works.” In responding to issues of statutory interpretation, Sen. Steele noted that “not everything we [legislators] do is right,” and legislators know and understand some of the cases are going to be reviewed by the courts.

Mr. Feighner followed up with a question about the Bolin decision (discussed in Mr. Mulvaney’s interview), observing the legislature had amended the statute in response to the Supreme Court’s decision. Sen. Steele acknowledged the court properly fulfilled its role in addressing the statute as it was written at the time.

In response to Mr. McCashland’s concern about putting a legislator on the bench, Sen. Steele noted that he has always been a “conservative” and does not feel justices should “legislate from the bench.”

In response to Ms. Keck’s questions about immigration, Sen. Steele cited the Tenth Amendment and noted states can act when the federal government does not. He specifically noted that Arizona had a right to pass the laws it did, which are less restrictive than federal legislation.

Posted by Marcia Oddi on July 30, 2010 12:54 PM
Posted to Vacancy on Supreme Ct