Trial Lawyers Need Not Apply

Lawyers come in all shapes and sizes. There are professors, transactional types, corporate counsel, litigators who can move a mountain of paper from the safety of their office and a plethora of other paperpushers. And there are trial lawyers: men and women who excel at the mind-to-mind combat that takes place only in a courtroom.

Call me naive, but when it comes to the selection of a judge, I'd prefer a trial lawyer every time. But that appears not to be President Obama's choice. The ranks of the candidates being whispered about in Connecticut is almost devoid of experienced trial lawyers.

Recently, the president nominated United States District Judge Robert Chatigny for a seat on the Second Circuit Court of Appeals. It is an uninspired choice. Chatigny has 16-plus years experience as a trial judge, but, as near as I can tell, he never tried cases as a practitioner. I've tried cases before him, and found him wooden and foreign to the forum.

It now turns out that another name has surfaced for the Second Circuit: Susan Carney, a graduate of Harvard Law and deputy corporation counsel at Yale. I don't know her, but what I read about her is impressive. She is smart, capable, and has a broad range of experience. But, sadly, it appears that little or none of that experience is in a courtroom. Why, I wonder, does a president think it makes sense to throw tourists into the maelstrom of a court?

I understand that appellate court judges are different. It may be that courtroom experience is unnecessary to excel in such a forum, although I have my doubts. Appellate court judges have adopted all sorts of legal doctrines to avoid meaningful confrontation of dysfunction at trial: Ask any defendant who lost an appeal after proving error only to have an appellate panel tell him the error was harmless. The only way one really gets a feel for the reality of going to trial is by going to trial.

Talk now turns in Connecticut to filling potential vacancies in the ranks of the District Courts, the trial level courts. According to the Connecticut Law Tribune, several names are on the lips of court watchers.

Among them are Joette Katz, a sitting member of the state's Supreme Court; Aaron Bayer, a former Connecticut deputy attorney general now practicing in a white-shoe private firm; and, Nora Dannehy, the acting U.S. Attorney. All three are extremely intelligent and accomplished lawyers. But only Dannehy has substantial trial experience. That should make her the top contender on this list.

The list of contenders for the District Court is hardly the sort of change we were led to expect from Obama. The president is trolling in the same old backwaters for judges: state-court trial judges, government lawyers -- whether prosecutors or civil attorneys general; and, kings of the biglaw billable. This is hardly the stuff of neopopulism.

I'd like to see the president do something creative and reach across the aisle. Instead of naming candidates from government and biglaw, why not try someone who can bring a wealth of criminal defense and plaintiff's experience to the bench? Why isn't the president giving William Bloss of Connecticut's Koskoff, Koskoff and Bieder, a look? Bloss is brilliant, fair-minded and not so far outside the mainstream as to make waves. Read more about him here:

Comments: (2)

  • Interesting article. Susan Carney seems very nice,...
    Interesting article. Susan Carney seems very nice, but appears to be the Harriet Miers of Connecticut. Few in the state outside of Yale appear to know who she is. Who was behind her selection? What are her connections? Has anyone done the kind of investigative reporting that you did in your previous story on Chatigny?
    Regarding, "... only Dannehy has substantial trial experience." It appears that your memory is short, or your Wikipedia skills are weak. Joette Katz seems to have had considerable courtroom and trial experience, though not exactly the same as yours. She was as an assistant public defender in the appellate unit of the office of the Chief Public Defender in New Haven from 1978 to 1981. From 1981 to 1983 she was an assistant public defender in the trial unit in Bridgeport. She also served as Chief of Legal Services for the Office of the Chief Public Defender from 1983 to 1989. She is also different from the usual candidates because of her strong positions on issues like gay marriage and the death penalty. Unfortunately, her background as a PD and her long paper trail probably means that she won't be selected for a federal position. But she is the kind of change that many would like to see.
    Posted on March 8, 2010 at 12:25 pm by R. Ellis
  • Good point about Katz. She would be a good additio...
    Good point about Katz. She would be a good addition. I still like Bloss, though.
    Posted on March 8, 2010 at 12:28 pm by Norm Pattis

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