Articles Posted in The Legal Profession

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Last night I had the honor of introducing the recipient of the 2018 Stonewall Bar Association Conspicuous Service Award Winner, Judge Alex Manning. We had a wonderful evening with several hundred of my closest friends in the Fabulous Fox Egyptian Ballroom.  Judge Manning gave an incredible, inspirational acceptance speech. I did not have all the time I wanted to introduce her.  She has an awe-inspiring personal story and she is an example of service to her community. To further honor Judge Manning, I want to share my full introduction of her here.  I am proud to know Judge Manning and proud to call her my friend.  What a great night!

 

 

ALEX MANNING INTRO  STONEWALL BAR ASSOC. DINNER                                                                NOVEMBER 1, 2018                                      BY ROBIN FRAZER CLARK 11/01/2018

Good Evening.

It is my distinct pleasure and proud honor to introduce to you tonight, the recipient of the Stonewall Bar Association Conspicuous Service Award, the Honorable Alexandra Manning.

Judge Alex Manning is a Judicial Officer in the Family Division of the Superior Court of Fulton County. She presides over some of the most contentious and sensitive calendars in Fulton County, including Child Support Contempt, TRO’s and Name Changes. She consistently and with the utmost respect for the rule of law and for the dignity of all those who appear before her, Judge Manning presides with both a firm hand and compassion. Judge Manning often handles name change petitions for transgender persons. Those who are seeking gender affirming name changes are often the most marginalized in our society and so come to court, understandably, vulnerable, with fear and intimidation of the formal court procedures. Many expect a judge who has little interest in helping them achieve their goal and even less understanding of why they desire to do so in the first place. You can imagine most of their reactions when they meet Judge Manning, who treats them with the dignity and respect they deserve but which they have rarely experienced by the government. Even though in 2018 we are still seeing some Superior Court judges refusing to grant a name change to a transgendered person out of some misguided personal beliefs, Judge Manning is not only a breath of fresh air in a sometimes-stagnant environment but is also the standard bearer for how judges should treat all citizens who come before them.

Judge Manning constantly demonstrated her support of the LGBTQ community before taking the bench. As a practicing lawyer she participated on a pro bono basis as co-counsel in a same gender marriage case in Dooly County, prior to the passage of Obergefell v. Hodges, in which she was able to protect the rights of a surviving spouse married in Washington, D.C., at a time when Georgia did not recognize same gender marriages. She also represented one of the first transgender individuals in the process of playing as a competitive NCAA athlete on the team that matched with gender identity. In her practice as a family lawyer she made handling second parent adoptions for LGBTQ parents a priority, even when not all Georgia court were even permitting second parent adoptions by a person of the same gender as the original adoptive parent.

Long before her legal career, Judge Manning established herself in law enforcement.  She was a pioneer as one of the first waves of female certified firefighters in DeKalb County.  She then went onto become a lead narcotic agent in the Georgia Bureau of Investigations and was appointed to the Governor’s Strike Force. She then became a Detective and K-9 handler and received both a Medal of Valor and Police Officer of the Year. While obtaining her undergraduate degree from Mercer University, Judge Manning worked as Senior Investigator with the Fulton County District Attorney’s Office in the Crimes Against Women and Children Unit and also at the Douglas County Public Defender’s Office. She then went to Vermont Law School and graduated in May 2006.

I first met Judge Manning when I was introduced to her at Lawyers Club by her loving partner, Lisa Liang. Lisa had wanted us to meet after learning I had successfully represented an Army Veteran in obtaining a Presidential Pardon for his military conviction of Conduct Unbecoming an Officer. His so-called unbecoming conduct was having a homosexual relationship with another man in the Army.  My client was convicted and served two years in Ft. Leavenworth Prison and then was dishonorably discharged.  After six years of representing him, we were overjoyed when we received word from the Pardon Counsel in the Department of Justice that President Obama was pardoning my client.  As it turns out, Judge Manning endured a very similar episode in her life.  Years before she distinguished herself as a GBI narcotics agent and before she was a Medal of Valor recipient and before she was named Police Officer of the Year, and before she became a respected judge on the Fulton County Family Court bench, she was discharged from the United States Army while a private.  The reason for her discharge?  Failure to adapt to military standards, which is Army speak for she was gay. Judge Manning disclosed this for the first time to attendees at a Vermont Law School conference on what was then the Federal policy on gays in the military, “Don’t Ask Don’t Tell (DADT). After revealing her long-kept secret, Alex began advocating for the repeal of DADT, including nationwide petitioning institutions of higher learning to ban military recruiting on campuses until DADT was repealed. Vermont Law School was one of the first to do so.  Alex continued this important advocacy in Georgia until DADT was finally repealed in 2011.

Can you imagine an American citizen wanting to serve her Country and being told the only reason she won’t be allowed to do so is who she loves?  Sounds crazy, doesn’t it?  But, although DADT has been abolished, and although same gender citizens may now be married in any state in the United States, it would be wrong to say we are out of the woods of discrimination and we don’t ever have to worry about that again. We need look no further than to our current Administration’s constant threat to reinstitute a ban on gays and transgendered people in the military.  Or the current Justice Department’s intervening in a private employment lawsuit arguing that the ban on sex discrimination in the Civil Rights Act of 1964 does not protect workers on the basis of their sexual orientation. Or the recent sentencing of a gay man to death by a South Dakota jury because sending him to prison for life would be sending him “where he wants to go and he shouldn’t be able to spend his life with men in prison.”  The United States Supreme Court refused to grant the defendant’s certiorari petition on the basis of what was clearly anti-gay bias of the jury. Thus, you see why we must continue fighting the good fight.

In last year’s Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868, 197 L. Ed. 2d 107 (2017), Justice Kennedy wrote that “racial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.”  Until we can easily substitute “sexual orientation bias” with “racial bias” in this sentence, we have not realized the Constitution’s promise of justice for all.

So, it is not hyperbole to say Judge Manning is a true American hero, for her example, for her sacrifice, for her honesty and openness, for her dedication to equality and to justice for all.  She is exactly who we want on the bench, who can bring to bear her toughness forged by personal struggle but tempered with deep compassion. And it is with that courage in mind that tonight we fittingly honor Judge Alex Manning.

Please join me in congratulating Judge Manning.

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

 

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What is the role of a trial judge?  This question may often be debated among lawyers and between lawyers and judges themselves and maybe even by law students in school, but rarely is it a hot topic discussed in the public by non-lawyers. Until now.  You may be following the Paul Manafort trial, in which the trial judge has been both criticized and congratulated for his conduct in presiding over that trial.  As I write this, the jury is out.  By most news accounts, that trial judge, Hon. T.S. Ellis, has often made known his likes and dislikes to the jurors and the prosecution seems to be taking the brunt of the abuse. So much so, that the prosecution has filed at least two motions requesting the trial judge apologize and make it clear to the jury that his remarks are not to be taken as commentary on the strength or weakness of the prosecution’s case. Things seem to have finally boiled over when, one morning, the trial judge did just that, he essentially admonished himself  to the jury for his comments and  said “Put aside any criticism. I was probably wrong in that,” and  Ellis said, concluding, “Any criticism of counsel should be put aside — it doesn’t have anything to do with this case.” “This robe doesn’t make me anything other than human.”

“This robe doesn’t make me anything other than human.” Think about that for a second. Who else wears a cape at work?  A Super Hero?  Every word that comes out of a trial judge’s mouth in front of a jury has some persuasion attached to it…some hidden meaning. Jurors often take their cues from the trial judge.  If the trial judge doesn’t seem to like a certain attorney, well, guess what?  The jury probably won’t like that attorney, either.  Jurors may be thinking:  “Who does the judge think should win? He’s the expert, he knows.  Does he like the defense attorney better than the plaintiff’s attorney?  Does she think the plaintiff is exaggerating?  He was rude to the female lawyer…maybe he thinks she is incompetent?  What will he think of us if we find for the plaintiff?  And return a large verdict?  Maybe he thinks that shouldn’t happen in his courtroom?”  As one trial lawyer said about Judge Ellis. “He can be very dominating,” said Jim Brosnahan, a California trial lawyer who defended John Walker Lindh in the American Taliban casebefore Judge Ellis. “The interesting question is: Is it aimed fairly at both sides, or is it particularly at one side?”  Also, keep in mind how extraordinary it is that Judge Ellis essentially apologized to the jury for his own comments, recognizing they may have sent the wrong signal to the jury. This is a very rare occurrence for a judge to do that.

First, let me say, that we are blessed with many wonderful trial judges in Georgia.  I have tried nearly 75 jury trials in the last  30 years of practicing law, all in Georgia, and with the very blatant exception of one Superior Court judge (she knows who she is), I have always been treated with the utmost respect and courtesy by our trial judges. Even when we may disagree, we do so with civility, not taking personal shots at one another. That is not to say that some aren’t demanding, or controlling, or picky, or even temperamental.  Many trial judges are all of those things, because they are human and sometimes the stress of a trial gets to them the way it gets to everyone involved or they simply see their role as being in command of their courtroom.  It has been my experience that our Georgia trial judges treat all those who come before them with the civility expected out of someone who wears a robe, has her name on a courtroom and has been given the authority by the State to preside over a trial, which is often one of the most important moments in a citizen’s life.

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Some recent headlines about trial judges behaving badly and a recent bad experience I personally experienced at trial last week have me thinking about this:  what should you expect from a trial judge?  Competency?  Fairness?  Mercy?  Understanding? Knowledge of the rules of evidence? Impartiality? Experience? Ability to stay awake during the trial? Maybe all of the above?

I only half-jokingly included in the desired traits list above the ability to stay awake on the bench.  Just this week an Illinois appellate court ruled that the fact that the trial judge slept through some of a murder trial did not automatically result in a reversal of the conviction or warrant a new trial.  That sleeping jurist claimed he had not actually fallen asleep but was simply resting his eyes. “If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling.  So Justice may be blind but it doesn’t have to be awake?

The question of what should we expect in a trial judge also has been hotly debated this week when the Senate Judiciary Committee approved a judicial appointee of POTUS for a Federal trial bench opening in Alabama. The reason for the outrage among lawyers about the judicial nominee is the fact that he is only 36 years old, has never tried a case and has practiced law for only 3 years. Many have called him “clearly unqualified” to take the trial bench and that his appointment is “laughable”. He has literally never tried a case!  Can’t we all agree that to be able to preside competently over a trial by jury, make life-changing decisions of what evidence gets in and what evidence doesn’t, decide whether a litigant receives a constitutionally protected fair trial, that the trial judge should at least have tried a case before?

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I had the privilege of being asked by the newly inducted State Bar President, Buck Rogers, to deliver the Invocation at the 269th Board of Governors Meeting held this past weekend on Saturday, June 10, 2017 at The Westin Jekyll Island.  It was, of course, my honor to do so.  I have had many requests for a copy of the invocation, including from President Rogers himself, so I thought I would share it hear with all of you along with my sincere best wishes to President Rogers for a wonderful Bar year.

INVOCATION at the State Bar Annual Meeting

JUNE 10, 2017

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As I work at my desk in my office today, I have the voir dire (jury selection) in the retrial of Ray Tensing livestreaming on one of my monitors. Some folks have called jury selection the most boring part of any trial, but it may very well be the most important, because from jury selection comes the group of local citizens who will decide the fate of the parties in the case and really decide what the conscience of the community is regarding the issue being tried. The Ray Tensing case is an excessive force case being tried in Cincinnati, Ohio this week. Tensing is the former University of Cincinnati police officer charged with one count of murder and one count of voluntary manslaughter in connection with the 2015 shooting death of Sam DuBose. The deadly encounter happened during an off-campus traffic stop. Tensing has said he fired his service weapon in self defense. The incident was captured by Tensing’s police-issued body-worn camera. A am watching the criminal trial of Mr. Tensing, who is being tried for on one count of murder and one count of voluntary manslaughter.  There has already been a civil case that settled for money damages against the University of Cincinnati, Mr. Tensing’s employer at the time of the killing.  It is being tried for a second time because the first trial ended in a mistrial.  Watching voir dire or jury selection is helpful to me as a trial lawyer, not only in ideas of potential bias to explore but in hearing how a certain cross-section of our nation feels about jury trials in general. It is interesting that in Ohio, if a lawyer asks the Court to strike a juror for cause, meaning the juror has expressed so much bias about the issues and has stated he doesn’t think he could be fair on the case, the lawyer moves to strike the juror out loud in front of all the other jurors.  For example, one juror who the judge struck for cause said in jury selection that he thought Mr. Tensing “deserved a medal” for shooting Mr. Dubose.  No wonder why he was struck for cause.  In Georgia, we don’t do it that way because of the fear that once the judge strikes one juror for cause, in front of all the other jurors, the rest of the jurors will figure out what to say to get off the jury and then pretty soon all the jurors are gone. So in Georgia we approach the bench and make these sort of motions to the judge at her bench.

Many of the folks in the Tensing jury panel have mentioned the concern and anxiety they had simply upon receiving a juror summons requiring them to be present in court for the jury selection of this case.  They have expressed their bewilderment about whey they of all people in Cincinnati received a juror summons, why they have to be there, why they have to take time out of their jobs and lives to be there…in short, why them?  Why me?

Interesting question, and with a recent opinion issued by the Supreme Court of Georgia, Ricks v. State, infra, regarding how a jury panel is composed, I thought it merited looking into the issue of jury composition a bit deeper.  Georgia has a fairly new Jury Composition Rule that controls the manner in which Georgia citizens will be summoned for jury duty. For use in compiling official lists of potential jurors, the Jury Composition Act directs the Clerks Council to obtain voter registration records from the Secretary of State and driver’s license and identification card records from the Department of Driver Services (“DDS”); the Act also directs the Clerks Council to obtain records on individuals who are ineligible for jury service, including certain records regarding mentally incompetent persons and convicted felons who have not had their civil rights restored. See id. § 1-16 (codified as amended as OCGA § 15-12-40.1 (b), (c)).  Ricks v. State, S17A0465, 2017 WL 2061675,  (Ga. May 15, 2017)

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We are about to reach the 100 day milestone of the current POTUS, and with that come many criticisms and many “attaboys.”  It’s all in the eye of the beholder. This POTUS is the first in a string NOT to be a lawyer.  When you think about that, the fact that he is not a lawyer, nor has he ever served in any public service role, means he has had no formal training in the Constitution nor in either drafting, interpreting or applying legislation. These are things that lawyers do every day, day in and day out. That is pretty obvious. What may not be at the forefront of your mind when thinking about lawyers is the professionalism displayed by lawyers every day.  Not only must lawyers as professionals in the practice of law abide by certain formal ethical rules and rules of professionalism, they must also insure they practice with a certain courtesy and respect for their opponents and for the judicial system that other people, say, real estate tycoons, for example, do not.  So as we approach that 100 day marker for the POTUS, I have been thinking of a few things that POTUS, a non-lawyer, so far has failed to demonstrate consistently in the last 100 days and what he could learn from lawyers…things I think would naturally serve him, his administration and most importantly, the people of the United States, well.

  1.  Be Impeccable With Your Word.  A lawyer’s ability to advocate successfully for his or her client is only as good as his or her credibility, and credibility directly flows from being able to count on what a lawyer says as being true.  No half-truths, no hedging the truth, no embellishment to make your facts seem just a little bit better than they really are.  A lawyer must always tell the truth in all dealings or risk  complete  ineffectiveness, or worse, a client’s, or an opposing counsel’s, or a judge’s (gasp!) not being able to believe what the lawyer is telling them. Once that happens, all is lost. You may have heard this referred to as “your word is your bond.” The Cambridge Dictionary defines this as “If someone’s word is their bond, they always keep a promise.”  Nothing is truer for a lawyer.  Lawyers even have a duty of candor to the court to inform the court of case law or precedent that goes against their client’s position in court.  Can you imagine a salesperson having to tell a customer that he could actually sell a car to you for less than what you, the customer, is willing to pay for it? Of course not, but lawyers are required to act with that much candor and honestly at all times before the Court.  The ideals of professionalism in the practice of law are aimed at ensuring our profession remains a “high calling” and not “just a business like any other,” enlisted in the service not only of the clients, but of the public good as well.  “A Lawyer’s Creed,” developed by the Chief Justice’s Commission on Professionalism (the Commission),  states it as thus:  “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice. ” 
  2. Never Take Anything Personally.  I think this is good advice for everyone, but especially lawyers must behave like this and are expected to do so.  Trial lawyers must always do their jobs in an adversarial situation. By definition, there will also be another lawyer representing the opposing party in a lawsuit trying his or her level best to prevent you from succeeding. Think how hard this is!  If we were talking about the profession of medicine and using surgery as our analogy, no other surgeon comes into an operating room to try to prevent the operating surgeon from performing the surgery successfully! No other doctor comes in and tries to kill your patient! But that is precisely what occurs in the practice of law. Every time I represent a client there is an opposing counsel trying to prevent me from succeeding. It’s pretty stressful, but would be even worse if the lawyer takes his opposing counsel’s efforts personally.  The opposing counsel is just trying to do his job well, too. That’s all. And The Lawyer’s Creed requires lawyers to promise this to opposing counsel:  “To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.”  We also are required to make this promise: “To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.”  Temper tantrums and other demonstrations of pettiness and “unsportsmanlike conduct” have no place in the legal profession.   Following a trial, adversaries shake hands, regardless of the outcome. I have never had a problem shaking the hand of my able adversary when he or she has conducted himself or herself with integrity and professionalism throughout the litigation. It honors our justice system and your opponent. As Shakespeare wrote in “The Taming of the Shrew,” “do as adversaries do in law, strive mightily but eat and drink as friends.”

 

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As I work in my office, I often have livestreaming a trial or appellate arguments occurring in the Georgia Court of Appeals or the Georgia Supreme Court.  I have previously blogged about the meaning of open courts and the value in being able to watch our judicial branch at work. It is your government in action and every citizen has the right to watch it and should be able to watch it.  I firmly believe in it. Today I am glad to see others get on my bandwagon.  CNN published an article today online that essentially agrees with my position. Given the current state of affairs with the attempted ban on Muslims by Executive Order and given the President’s attempt to “blame” the Courts for simply upholding the United States Constitution, there has never been a more important time in our Country’s history than for the people to have total access to the courts through livestreaming or video.   Interestingly, oral arguments Washington v. Trump were broadcast on youtube.com although there was no video portion to watch, just audio.  When our own President is attacking the independence of the judiciary, livestreaming oral arguments would be the very proof needed to show he simply does not know what he is talking about.  Livestreaming oral arguments dealing with unconstitutional executive orders would dispel any absurd suggestion that courts or judges are political and are making decisions based on political pressures. It is ridiculous that our President would even suggest such a thing, when it is absolutely not true, but for any American who might for a minute believe it, they could simply watch for themselves and realize that our judges are making their decisions based on the facts, the law and the Constitution. Increased transparency promotes public participation, open government, access to information, efficiency, higher quality decision- making, and accountability. Further, transparency  reduces the opportunity for corruption.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

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Friends:  I have to confess, I back slid recently and agreed to mediation of a client’s case.  I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation  generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case).  I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself  not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

  1.  Defense counsel get away with childish, immature positions and remarks.  I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured.  After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years.  Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication.  Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
  2. Defense counsel approach me to mediate, saying “they really want to get the case resolved.”  So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it.  That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.

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Judge Horace Ward. Photo by John Disney/Daily Report.

Judge Horace Ward. Photo by John Disney/Daily Report.

I have just learned that Judge Horace Ward has died. He was a true Civil Rights Legend. There will never be another Horace Ward. We owe him a debt of gratitude for all he endured and accomplished. He truly left the world a better place.  In his memory, I am reprinting below my letter to the Editors of the Daily Report and the Atlanta Daily World written on the occasion of his retirement in 2012. God bless Judge Ward.

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