2009 Lawyer of the Year (PDF) - Massachusetts …masslawyersweekly.com/wp-files/loty_2009_010410_sm.pdfDeakin tore through Rockefeller’s insanity defense, showing a lifelong pattern

20 | Massachusetts Lawyers Weekly | January 4, 2010 www.masslawyersweekly.com | Cite this page 38 MLW 804

Clark Rockefeller never leaves David A. Deakin’s of-fice.

Rockefeller’s face is etched on a square of bath-room tile that rests against a window near Deakin’s desk inthe Suffolk County District Attorney’s Office, a joke giftfrom a friend. And a photo of Rockefeller, glowering at thecamera through his iconic horn-rimmed glasses, isperched on a bookshelf next to a quote from Deakin’s oralargument: “There’s no diagnosis for liar, is there?”

Amid a swirling media storm that broadcast the case tothe nation and the world, Deakin’s calm prosecution ofRockefeller — whose real name is Christian Karl Gerhart-sreiter — yielded a guilty verdict last June on charges ofparental kidnapping and assault and battery with a danger-ous weapon. Rockefeller is now serving four to five yearsin state prison for kidnapping his daughter during a super-vised visit in Boston in July 2008.

Deakin tore through Rockefeller’s insanity defense,showing a lifelong pattern of lies and deceit that allowedRockefeller to live a lavish lifestyle while masquerading asan aristocrat.

The conviction was a very public win for Deakin, whohas spent nearly his entire career as a prosecutor, mostlyspecializing in the areas of domestic and sexual assault andcrimes against children.

Q.How did you become a prosecutor?

A. I actually went to law school to be a criminal defense at-torney. I always tell people that I wanted to be ClarenceDarrow or Racehorse Haynes, but the truth is — thisshows you how naïve I was at the time — I wanted to beAtticus Finch. I really went into prosecution because BillDelahunt offered me a job [at the Norfolk County DistrictAttorney’s Office] before the Committee for Public Coun-sel Services did. The judge I clerked for, Judge RuthAbrams, said if you want to learn to take a case apart, learnhow to put a case together. So I thought I was going to geta year or two of experience and then go out and do publicdefender work. But I loved it. I love the courtroom work,but I also found I really love meeting people, hearing theirstories, learning about them, helping them. Every time Iwalk into the courtroom, I feel like I am trying to convincethe jury of the truth. It’s not that I pretend to know whatthe truth is. ... It’s that I believe my case is true because, if Idon’t, I don’t bring it.

Q.How did you cope with the public attention that theRockefeller case received?

A.There were a couple of peripheral challenges. The timethat I actually communicated with the media took upsome time that I don’t usually have to spend. It also tooksome time to keep on top of what was being reported to besure that it wasn’t wildly inaccurate or might taint the jury

pool improperly. But it really didn’t change that much. Itcreated a certain sort of strange atmosphere at trial. Andon a personal level, it was weird because I got e-mail andphone messages from family and friends across the coun-try telling me I had done a great job with this, or that a wit-ness wasn’t so persuasive. It was like taking everyone youknow to work with you every day.

Q.Was that level of intense scrutiny tough to handle?

A.One of the things about doing work where judges and ju-ries review your work all the time, you are sort of used to alot of scrutiny. The media attention gave it sort of an unusualfeel, but it didn’t really affect the work of persuading the jury.

Q.The case became a battle of the experts. How did you ad-just your strategy to cope with that?

A. It was hard because the defense chose two experts —one of whom was quite prominent, and both of them hada lot of experience — [whose] diagnoses were unorthodox.Conveying effectively to a jury that a diagnosis is that un-orthodox can be difficult if the experts aren’t obviouslycompromised, aren’t obviously just sort of saying it forhire. What I ultimately decided was that it really shouldn’tbe a battle of the experts. All the experts agreed on a num-ber of factual things, and I felt that their areas of agree-ment actually underscored the unorthodox nature of thediagnosis.

Q.How so?

A.Evidence had come in that he had used seven aliasessince the 1970s. All three doctors who testified — the twodefense experts and my expert — agreed that for six out ofthe seven, including the one he used after Clark Rocke-feller, he was not delusional. The only alias they thought hewas delusional about was Clark Rockefeller, which coinci-dentally was the alias he was using when he met thewoman who became his wife and when she was support-ing him in a lavish lifestyle. It seemed like it would be diffi-cult for a jury to believe that he was delusional about thatname but not the aliases he used before. The case reallywasn’t a battle of the experts, it was a battle of his expertsagainst the facts, and that is ultimately where I asked thejury to focus its attention.

Q.Do you see yourself staying a prosecutor for the rest ofyour career?

A. It would certainly be an honor and a pleasure to do that.Sometimes, candidly, I worry that I won’t be able to affordcollege tuition on a prosecutor’s salary. As my kids get clos-er to college age, I think sometimes about whether I can af-ford to continue to do it. But I’d really hate to leave a careerthat I love for purely financial considerations.

— JACK DEW

DAVID A. DEAKIN

David Deakin on ...His most memorable moment at lawschool: “In retrospect, the moment I re-member the most is a basketball game Iplayed in just about every day during lunchmy first year. There was one guy, a tall, lankyAfrican-American who could really play.Whenever something got really tense, hewould be in there saying, ‘Guys, guys, it’s apickup game. Mellow out.’ I had no idea whohe was until my third year, when I saw thatthe Law Review had elected its first African-American president, and the guy I was play-ing basketball with was Barack Obama.”

Highlight of his legal career: “A 2007 casein which a man went to the house where hisestranged wife was living in Dorchester andlit himself and his infant daughter on fire. Heburned himself very badly and his daughtermuch worse. He was convicted and sen-tenced to 40 to 50 years in prison. Her abili-ty to relax and not worry that he is going tobe out and able to do any harm to her andher family — nothing has been more satis-fying in my career than that.”

One thing about him that might surpriseother people:“When I am on trial, I try to findLed Zeppelin or Van Halen and turn it up loudin the car.”

Favorite book or film: “A tie: ‘Possession’byA.S. Byatt; ‘The Name of the Rose’ by Umber-to Eco.”

What has kept him in the practice of law:“I love it.”

PHOTOS BY MERRILL SHEA

Age: 45

Education:Harvard Law School (1991);Williams College (1986)

Bar admission: 1991

Professional experience: Chief, Fami-ly Protection and Sexual Assault Bureau,Suffolk County District Attorney’s Office(1996-present); Norfolk County DistrictAttorney’s Office (1992-1996); clerk,Supreme Judicial Court Justice RuthAbrams (1991)�

Cite this page 38 MLW 805 | www.masslawyersweekly.com January 4, 2010 | Massachusetts Lawyers Weekly | 21

Children are told that if they dig a deep enough hole,they’ll emerge on the other side of the world, in China.

For grown-ups who have dug themselves into alegal hole and hope to emerge clean, the last attorneythey’ll want to go up against is Jonathan W. Fitch — be-cause he’ll go to China and back again.

In 2009, Fitch, with assistance from his colleagues AshlyScheufele and Robert M. Mendillo, represented HongKong-based Kington Holdings, the exclusive licensee ofcertain technology, products and services in China underan agreement with LoJack Equipment Ireland, whose par-ent company is based in Westwood.

When LoJack terminated the technology license, patenttrademark and supply agreement and initiated arbitrationproceedings against Kington for breach of contract, Fitchand his legal team stepped in and filed a counterclaim forwrongful termination of the agreement.

At the conclusion of the liability phase, which was heardin Boston, the arbitrator dismissed the licensor’s claimsand found in favor of Kington on its breach-of-contractcounterclaim.

A settlement was reached prior to the damages hearing, inwhich LoJack was required to pay Kington $18.25 million.

Q.What were some the specific challenges of trying a casethat spanned 7,000 miles?

A.Our case required proof of Kington’s compliance with busi-ness laws and regulations in China, and those are not easily ac-cessible to outsiders. It was also important for us to learn quitea lot about Chinese consumer behavior and how various mar-kets operate in China, particularly the car and car insurancemarkets, to develop Kington’s evidence of lost profits. From alogistical standpoint, the 12-hour time difference was challeng-ing since we were in daily communication with our clients, ex-perts and others in Beijing and Hong Kong.

Q.You entered the case well into the litigation. When did itstart and how did you get involved?

A. LoJack Equipment Ireland commenced the arbitrationagainst Kington Holdings Limited in November 2007. The re-lated actions in Norfolk Superior Court and the U.S. DistrictCourt and in Hong Kong began after the arbitration was filedand were resolved by the settlement. We entered the case inSeptember 2008 and were particularly disadvantaged. Severaldays after we were engaged, we participated in the first confer-ence with the arbitrator, at which he entered a preliminary in-junction against Kington. That was not an auspicious begin-ning. We worked feverishly to turn the case around.

Q.How did you manage to do that?

A.Unfortunately, we were brought in too late to fend off theinjunction, but we acted quickly by way of a motion to vacatethe injunction to ask the arbitrator to revisit the issues he had

decided. We recognized a pressing need to put our version ofthe facts in front of the arbitrator in a comprehensive manner.In that motion, which was supported by detailed affidavitsand some of the key documents in the case, Kington told itsside of the story for the first time. Of course, I don’t knowwhen the arbitrator started to see the liability issues different-ly. He denied the motion to vacate, but I think that our pres-entation was compelling and may have started to turn himaround. The hearings of the liability phase went forward inFebruary 2009, and the arbitrator subsequently ruled on thebasis of the evidence in those hearings that LoJack hadwrongfully terminated the license agreement.

Q.What was the turning point in the case, and what werethe documents that helped you ultimately prevail?

A.The ruling in the liability phase was the turning point.With respect to key documents, I’d point to a small stack ofe-mails, among the many boxes of documents in the case.The testimony of Kington’s principals and other witnesses onkey issues was convincing standing alone, but it was also cor-roborated by contemporaneous e-mails. The e-mail evidencewas important to the outcome of the liability phase.

Q.The case was brought before the International Centre forDispute Resolution. How do international arbitrations differfrom American ones?

A.The arbitrator was a practicing lawyer in New York City,highly experienced in international arbitrations. The proce-dural rules of international arbitration are similar to thoseused in domestic arbitrations, but we did have a number ofthorny choice-of-law issues. We were representing a compa-ny organized under the laws of Cyprus, headquartered inHong Kong, with operations in Beijing, in litigation againstcompanies based in Dublin and Massachusetts. Massachu-setts law generally governed the license agreement.

Q.Overall, was this a run-of-the-mill case for you — butwith a better than average result?

A.The case was typical of the complex business litigationthat I do. Stripped of its exotic elements, it was essentiallyanother breach-of-contract case, albeit an especially funand fascinating one.

Q.What lesson would you want young lawyers to cull froma case of this magnitude?

A. [U.S. District Court] Judge William Young once told a group,“Usually, if lawyers can’t get their clients to reach a settlement,they are doing something wrong.” I think there’s a lot to that.Particularly in a case where the stakes are high, our goal aslawyers should be to work with opposing counsel to reach acompromise that nobody likes but everyone can live with. Youcan’t get to that point until the facts and legal arguments arefully developed and mutually understood.

— MATT YAS

JONATHAN W. FITCH

Jonathan Fitch on ...His most memorable moment at lawschool:“I received a superb education at BC,though I was not a great student. During thesecond semester of my first year, I was luckyto begin working part time at Bingham, Dana& Gould as an investigator, or an ‘irregular’ asthey called it — after the Baker Street irreg-ulars in the Sherlock Holmes stories. It wasthere that I learned the methods for devel-oping the factual side of a case— by gettingout of the office, running down differentleads, taking witness statements and so forth.I worked at Bingham as an irregular and thenas a law clerk throughout law school. The bal-ance of that apprenticeship under terrific rolemodels, including Fran Fox, Joe Kociubes, JimMcHugh and Frank Sally, my future partner,and the rigorous classroom work at BC, wasa perfect legal education for me.”

Highlight of his legal career: “One memo-rable case was Latino PAC Inc. v. City of Boston.As an associate at Bingham, I worked on thiscase for partner Joe Kociubes. Chief JudgeAndrew Caffrey granted our clients summa-ry judgment, finding that the city voting dis-tricts violated the fundamental rule of one-person one-vote and enjoined an electionfrom going forward. The injunction was af-firmed by then-Justice William Brennan of the1st Circuit.”

One thing about him that might surpriseother people: “I enjoy performing in com-munity theater, particularly comedies. Fa-vorite roles: Greg in A.R. Gurney’s ‘Sylvia’ andRobert in Camoletti’s ‘Don’t Dress for Dinner.’”

Favorite book or film: “I have read a lot ofJohn Cheever and John Updike in the lastyear. I just finished the quartet of Updike’sRabbit novels, which rank high on my all-timelist. Over 30 years ago, I read ‘The CompleteBook of Running’ by Jim Fixx, which may havehad the greatest influence on me of anybook.”

What has kept him in the practice of law:“I still love going to work. I’m privileged torepresent clients, many of whom have be-come good friends, in all sorts of singular andfascinating cases. I have enormous respectand affection for the lawyers and staff at Sal-ly & Fitch.”


Age: 57

Education:Boston College Law School(1982); Yale University (1978); WilliamsCollege (1974)

Bar admission: 1982

Professional experience: Partner, Sal-ly & Fitch, Boston (1984-present); asso-ciate, Bingham, Dana & Gould, Boston(1982-1984) �


Joyce Kauffman came to the practice late, turning 40 dur-ing her first year of law school after stints as a psy-chotherapist, a counselor at an alternative high school

and a teacher at a day care center. But after graduating in1992, she wasted no time rocketing to the front lines of fami-ly law when she helped write the plaintiffs’ brief in Adoptionof Tammy, a 1993 case that established the right of a same-sex couple in Massachusetts to adopt a child.

Since then, Kauffman has carved out a niche that focus-es on nontraditional families, with a special concentrationon lesbian and gay issues. In Adoption of Galen, she helpedconvince the Supreme Judicial Court in 1997 to allow alesbian couple to adopt a child without being subjected toa home study of their living arrangements, and in 2000, shepersuaded a Probate & Family Court judge in Knoll, et al. v.Beth Israel Deaconess Medical Center that two women in alesbian relationship were the legal parents of their child.The judge ordered that both plaintiffs be named the child’smother on the birth certificate — a first in the state.

Kauffman’s interest in gay and lesbian family law is per-sonal: She is the lesbian mother of a daughter who wasconceived with sperm from a known donor and raised byKauffman and her now-ex partner. Kauffman’s daughterwas legally adopted by all three parties when she turned18. Hers is one of the few three-parent adoptions ever to begranted in Massachusetts.

More recently, Kauffman, whose work often involves spermbanks, was the lawyer for New England Cryogenic Center,which in 2006 was sued by a woman who wanted to learn theidentity of her sperm donor so that she could collect child sup-port. In a motion to dismiss, Kauffman and her associate, Pa-tience W. Crozier, argued that granting the woman’s requestwould end sperm donation as it exists today in Massachusetts.

After their motion to dismiss was partially granted inthe Probate & Family Court, the plaintiff attempted to ap-peal the matter. Last September, Judge James F. McHughdismissed the appeal, noting that the issue was one of firstimpression that potentially had broad ramifications. Thesuit, Doe v. XYZ Company Inc., et al., will likely return tothe Probate Court. If the plaintiff succeeds, “it would sig-nificantly impact the reproductive technology system,”Kauffman says. “I think that people would not donate,which would be a tragedy.”

Q.What is the likelihood that the plaintiff could still prevailin the New England Cryogenic Center suit?

A. I think it’s highly unlikely that she would prevail. I don’tknow what she’s going to do. We will be doing something,because the Appeals Court decision creates more confu-sion than not; we want to clarify and get a final judgment.

Q. If Jane Doe doesn’t have a legitimate claim, how did sheget to the Appeals Court?

A.[She] believes that Massachusetts law would support her in

her contention that an anonymous donor is a parent. There isno law in Massachusetts that really would enlighten one aboutthese issues. That is why this is a very important case that im-pacts not only the gay community, but the entire communityof individuals who are seeking fertility services. If this casewere to be decided such that this woman would prevail, whowould donate? Who would donate if you had any inkling thatsomeone was going to come after you for child support? Andon the other hand, how would a family experiencing fertilityissues deal with the possibility that their anonymous spermdonor could come after them for contact, or even custody?

Q. If this issue is so important, why hasn’t it been raised before?

A.Perhaps because most people assume that anonymous isanonymous is anonymous, and nobody ever made it an issue. Ido think there’s a confluence of things happening in our societythat fed into this. In the adoption world, there’s a trend towardopenness. ... I think that, in the world of donor inseminationand IVF, similar issues are bubbling up and some of the chil-dren who are born through reproductive technology are verycurious about where they came from. Or there may be a needfor medical information. Jane Doe has made an allegation thatthere is genetic disease, though she has not proven that the chil-dren have this disease at all. I can appreciate the medical issues;it does make sense to me that you should be able to access thatmedical information while still protecting the donor’s identity.

Q. So if the plaintiff in the New England Cryogenic casewere only to seek access to the donor’s medical records, yourclient would not fight her on that?

A.That’s what [the Probate & Family Court judge] ordered, ac-tually. Both sides could submit questions to a special master todepose the donor, without revealing his identity, about medicalissues. I think that’s fine. But she was required to prove that thechildren have the diagnosis, which she did not do.

Q.Doesn’t that put the burden on her?

A. I think the problem with this particular case is that JaneDoe wants much more than medical information. Shecame in looking for money and making the claim that, un-der Massachusetts law, the donor is a legal parent.

Q.What is the greatest challenge you foresee in the develop-ment of family law?

A. I think the most obvious one is the Defense of MarriageAct. Until both the federal and various state Defense ofMarriage acts are gone, there won’t be true equality for les-bian and gay families. But that’s not the only issue outthere. I do think the recognition of parentage is also im-portant. The reality is that there are people out there whoare parents to children who are not legally recognized assuch. I would really like to see the law evolve to a placewhere those relationships are allowed and recognized.

— JULIA REISCHEL

JOYCE KAUFFMAN

Joyce Kauffman on ...Her most memorable moment at lawschool: “Graduating.”

Highlight of her legal career: “My daugh-ter’s adoption.”

One thing about her that might surpriseother people:“I crochet. A baby blanket wasmy last project.”

Favorite book or film: “I want to say that myfavorite book is the one that my partner iscurrently writing. I also just saw ‘Precious.’ Ithought it was troubling but amazing.”

What has kept her in the practice of law:“Two things:my associate, Polly Crozier. Pol-ly’s been integrally involved in [the New Eng-land Cryogenics] case. She’s done an excel-lent job. She helps keep me in the practice oflaw. She’s an angel. And the second thing isthe desire to do the right thing.”


Age: 59

Education: Northeastern UniversitySchool of Law (1992); Lesley College(1981); University of Massachusetts atAmherst (1971)

Bar admission: 1992

Professional experience: Law Office ofJoyce Kauffman, Cambridge (1999-pre-sent); Triantafillou & Guérin, Cambridge(1992 -1999)�


It’s a concern shared by sole practitioners and big-firmpartners alike: what to do about clients who don’t paytheir legal bills. While attorneys’ liens can help ensure

that lawyers are compensated for their efforts, until recent-ly that option was not available to patent lawyers.

But last August, the Supreme Judicial Court ruled in Ropes& Gray LLP v. Jalbert that the attorneys’ lien statute does in-deed apply to patent prosecution work. The ruling makesMassachusetts only the third state in the country where workperformed at the U.S. Patent & Trademark Office can be pro-tected by an attorneys’ lien. The decision was a major victoryfor D. Ross Martin, who represented the plaintiff in the case— his employer Ropes & Gray, where he is a partner in thebankruptcy and business restructuring group.

His bankruptcy practice has also exposed him to less tra-ditional clients, such as the victims of notorious Chilean dic-tator Augusto Pinochet, for whom Martin and a pro bonoteam of lawyers from Ropes & Gray were able to secure amulti-million-dollar settlement. “That’s what I do for a living:get people money that they are owed,” Martin says.

Q.At what stage did you become involved in the Jalbert case?

A. I was part of it initially. One of the things our departmentdoes is represent existing clients from different parts of thefirm who go bankrupt. This was a software business that failed.My job was to file the standard bankruptcy paperwork. I askedwhether this lien, which I knew existed, might apply to patentwork. Ordinarily, without the lien you’re the same as any credi-tor — you don’t get paid much. The lien protects plaintiff-sidepatent work; it doesn’t protect lawyers who are representing adefendant or doing corporate or transactional work. It’s beenknown that, if you’re suing for patent infringement, you couldbe covered, but now it applies to work done to get the patent inthe first place. What it doesn’t cover is work done negotiating alicense or selling the patent to someone.

Q.When did you realize this would be a test case?

A. I did not think at the start that it would be very controversial.The people running the bankruptcy estate decided to contestit, and that’s where the case got rolling. Once it got to that point,when it wouldn’t settle and when the decision went against usin Bankruptcy Court, it became clear it would be a test case. Itwas an important issue. There was $100,000 at stake, but it wasalso important to get an answer to the question. When the firstdecision went against us, we knew that we’d take it up on ap-peal until we got a favorable decision.

Q.How did it end up before the SJC?

A.The initial appeal was heard by the U.S. District Court. Wehad asked for the SJC’s input because we thought it was a novelenough issue. The District Court declined. We renewed the re-quest when we went to the 1st Circuit.

Q.Have you started to see the impact of the decision?

A.Definitely. We see it ourselves because there have been casesalready. A typical example is when a client of the firm we’vegotten patents for is in financial trouble and selling itself. Nor-mally, there’s not enough money to pay the lenders and othercreditors, and now, quite frankly, we’re able to get paid. One ofour big points for taking the test case is what these clients areselling is the exact thing we went and got for [them]. It’s justlike the lien your contractor has when they remodel yourkitchen. If you don’t pay them, they are first person to get paidwhen you sell your house because they have improved its val-ue. If you invent something and your patent lawyer argues it isoriginal and useful, you get a government monopoly. … I’vehad a few other firms call me about the decision, both big andsmall patent firms. It was pretty gratifying to see that people indifferent parts of the bar cared about it.

Q. It’s a state statute, so when does it apply? What if the com-pany, or the firm, isn’t based in Massachusetts?

A.That’s not entirely clear. We’re only the third state that has de-cided the question. This involved a Massachusetts company andMassachusetts lawyers. The other questions are not completelysettled, but the law seems to be pretty favorable in New York.

Q.Are you afraid that this might make clients reluctant tohire Massachusetts lawyers?

A.That’s a question that came up. I don’t think so. The onlyclient who thinks that would want to sell their patent withoutpaying the lawyer who got it for them! … The lien exists be-cause lawyers get into cases and can’t get out. We’re only talk-ing about clients who decide not to pay their lawyer, and thestatute says it only covers “reasonable fees.” A client can dis-pute the reasonableness of the fee. This has existed for a longtime for personal injury lawyers, and nobody thinks it hasmade it harder to hire a personal injury lawyer. In fact, theflip side may be true: This makes it easier for attorneys totake on clients they might not otherwise take on becausethey feel more certain that they’ll be paid. If someone with astart-up that might fail walks into a law firm, the patentlawyers — who also have to be trained scientists — can takeon that client feeling much more secure. This makes it easierfor Ropes to take small clients, but it also makes a huge differ-ence for small and medium-sized patent boutiques.

Q.How did you get involved in the Pinochet case?

A. Sam Buffone in our D.C. office has represented some of[Pinochet’s] victims for decades. He got a civil judgment relat-ed to some car bombings that took place in the ’70s. In the1990s, a Spanish judge started proceedings against Pinochet inabsentia. He had gone to the U.K. It came out that he had abank in Washington. We went and did a combination litiga-tion-creditor’s-rights approach to argue that the bank was li-able in part and that the money the bank had of the Pinochetsshould be turned over. Sam called and asked how to get themoney that the bank had. And that’s what I do for a living: getpeople money that they are owed.

— NOAH SCHAFFER

D. ROSS MARTIN

Ross Martin on ...His most memorable moment at lawschool: “Having my constitutional law classtaught by Archibald Cox.”

Highlight of his legal career: “Helping geta settlement for some of the victims of Gen-eral Pinochet.”

One thing about him that might surpriseother people: “I like to cook. My specialty isrolling sushi.”

Favorite book or film: “‘Twelve O’ClockHigh.’”

What has kept him in the practice of law:“I work in a little 20-person boutique in a bigfirm. I get to go to court and work on trans-actions.”


Age: 43

Education:Boston University School ofLaw (1995); Cornell University (1988)

Bar admission: 1995

Professional experience: Partner,Ropes & Gray, Boston (1996-present)

�


Russell Cory’s profile does not invoke much sympathy.He was convicted of child rape in 1997, and after heleft prison he violated his probation by failing to com-

ply with treatment and counseling obligations. So few peoplecould have objected when, in 2007, a judge ordered Cory tosubmit to GPS monitoring pursuant to a 2006 statute requir-ing that condition for all convicted sex offenders on probation.

But despite the relatively minor burden the law placed onCory, the blare of talk-radio and cable-news bloodlust aimed atsex offenders and those who dare defend them, and the un-speakable horror of Cory’s crime, Quincy attorney Theodore F.Riordan had no reservations about handling Cory’s appeal.

After all, the U.S. Constitution prohibits retroactive pun-ishment. But the commonwealth was subjecting Cory to alaw passed more than 13 years after his crime, and Riordanrecognized that serious constitutional issues were at stake.

“I felt that just as John Adams had to take unpopular clients,the role of the lawyer is to take any client who has legal needs,”Riordan says. “The particular context in which constitutional is-sues come up — whether it’s a sex case, an assault and battery oran OUI — doesn’t really matter. Anybody who believes in theConstitution should feel it’s important to take a case like this.”

The Supreme Judicial Court agreed. Though the com-monwealth argued that the statute in question, G.L.c. 265,§47, is a civil remedy not subject to the ex post facto clause,the SJC found that the provision operates in a punitiverather than regulatory manner, and thus retroactive appli-cation was unconstitutional.

As gratified as Riordan was by the court’s decision, hewas not surprised.

“I really did think I was on excellent legal grounds,” he says.

Q.Your firm bills itself as a general litigation firm that special-izes in personal-injury cases and business disputes. So how didyou get involved in a case like Commonwealth v. Cory?

A.The criminal side of things for my practice is really theappellate work I do. I always had an interest in appellatework, both from law school and from working in theRhode Island Supreme Court [as a law clerk]. And I thinkit’s important to have a diverse, well-rounded caseload. Ifyou handle just one kind of subject matter, it can get dry.

As for this case, I do work for CPCS on the appeals side andthat’s how I got this one. I’m on their appellate list. I’ve also donecriminal trial work but wasn’t the trial counsel in this case.

Q.What was the most significant challenge you faced inhandling this case, and how did you overcome it?

A.Well, it’s always hard to overturn a statute. That’s an ex-tremely tough challenge. And in this case my brief reliedalmost exclusively on U.S. Supreme Court precedent. It’s abig task to convince a court to strike down a statute basedon constitutional grounds, an uphill battle for any lawyer.So I read cases very carefully to make sure I was readingthem right. And I ran them by other lawyers to make surethey agreed that I was on the right track. You need to make

sure you are confident that you have a correct read on thecases. And if you do, you should stick with it notwithstand-ing any arguments that might be made by the other side.

Q.Critics contend that the SJC’s ruling could result in countlesssex offenders being released from GPS monitoring, putting theircommunities at risk. In fact, shortly after the decision was hand-ed down, a judge in Lowell refused to subject another childrapist to his GPS monitoring obligation, citing the ruling inCory. Do you feel any misgivings about your case when youhear about these sorts of consequences?

A.No, because the only thing this case held was that the re-quirement that every single person who is guilty of a sex of-fender crime must be put on GPS is improper. Judges had dis-cretion before the statute was enacted and have discretion nowto make a determination that a particular person should still beon a GPS. So in no way does this case threaten public safety, be-cause any judge who feels a defendant should be on a GPS canorder exactly that. That’s on the last page of the [SJC’s] decision,where the court says that “the fact that sentencing judges priorto the enactment of Section 47 had the discretionary power toimpose GPS monitoring as a condition of probation does notaffect our analysis.” So this decision did not in any way affect ajudge’s power to put a particular defendant on GPS if the judgebelieves it was warranted for a particular defendant.

Q.Others, including Justice Roderick L. Ireland in his dissent,have asserted that the statute is indeed a civil remedy and is notpunitive in nature, and thus retroactive application of the law isnot unconstitutional. How do you address such assertions?

A.For all the reasons cited by the majority decision, the samereasons in my brief: It falls within the criminal part of the statutebooks. The fact that someone has to wear this device 24 hours aday, and if they take it off there’s going to be a penalty, and thefact that they’re restricted physically where they can go [makes itpunitive]. It’s a condition of your probation, and by definition,any violation of your probation is a criminal violation.

Q.Public sentiment has spurred many local and state govern-ments to impose other harsh post-release conditions on convictedsex offenders, such as registration requirements and tough restric-tions on where they can live. Some say these laws unfairly stigma-tize offenders and hinder rehabilitation, while others say they’renecessary to protect the public. What’s your take?

A. I don’t purport to have a broad practice in this area, andI don’t purport to know all the ins and outs of sex offenderissues, so I wouldn’t want to label this as my niche in thelaw. But that said, if we are going to release sex offenders, Ithink we have to give them — as we do any defendantwho’s been released from jail — the opportunity to supportthemselves, have gainful employment and an opportunityfor a place to live. In that respect they are in the same boatas any criminal defendant released from prison. So withappropriate conditions, we have to allow them to live in so-ciety if we’re going to allow them out of prison.

— ERIC T. BERKMAN

THEODORE F. RIORDAN

Theodore Riordan on ...His most memorable moment at lawschool: “The first year when I was so im-pressed with the give-and-take of the lawschool experience and how many otherbright people went to law school. I was soimpressed with the achievements and intel-ligence of the other people in the school.”

Highlight of his legal career: “My currentappellate law practice. I find it very reward-ing to issue-spot intriguing, complicated le-gal ideas, to follow that through and to beable to convince a panel of very smart judgesto see my way on a case.”

One thing about him that might surpriseother people:“I like to play hockey.”

Favorite book or film: “My favorite book is‘Back Bay’ by William Martin, and my favoritefilm is ‘Band of Brothers.’”

What has kept him in the practice of law:“I like the intellectual challenge. I enjoy do-ing research and writing and finding creativesolutions to things.”


Age: 44

Education: Suffolk University LawSchool (1990); Stonehill College (1984)

Bar admission: 1990

Professional experience: Partner,Bates & Riordan, Quincy (1999-pre-sent); associate, Latronico & White-stone (formerly Law Offices of JamesD. Casey), Boston (1991-1999); clerk,Justice Florence Murray, Rhode IslandSupreme Court (1990-1991) �


Mary T. Rogers had no reason to believe that an un-published Appeals Court decision would be thecase that would send her to the U.S. Supreme

Court.But less than two years after her client’s drug-trafficking

conviction was affirmed by the appellate courts in Massa-chusetts, Rogers was seated at the defense table in Wash-ington, D.C., along with co-counsel Jeffrey L. Fisher ofStanford Law School, staring at the crew that sits on thenation’s highest court.

“Being at counsel table before the Supreme Court wasunquestionably one of the greatest experiences I’ve everhad as a lawyer,” she says. “The judges are very close to you,in contrast to Massachusetts. They are only a few feet infront of you, and the questions are fired fast.”

In a ruling that sent shockwaves throughout the nation’scriminal justice community, the court held that the Con-frontation Clause requires prosecutors to call chemists tothe stand before drug certificates are introduced at trial.

In the months since the June 25 ruling, courts have be-gun to apply Melendez-Diaz’s holding to a variety of otherforensic matters. At the same time, Rogers has happily ac-cepted the accolades that come with being known as thelawyer who served on the team that won the ground-breaking case.

“I don’t mind that people connect me with one of the higherpoints of my career,” she says. “The whole case in my opinionjust goes to show that, as a lawyer, you can change the law, butyou can’t just stop at one door. You’ve got to keep going.”

Q.When the Appeals Court denied your appeal in Melen-dez-Diaz, what would you have said the odds were that thecase was headed to the Supreme Court?

A. Zero percent.

Q.Not even one in a million?

A.No. It was an ordinary, run-of-the-mill, small drug case.I actually think my client was innocent, and it was unfortu-nate he was convicted at all. But the Appeals Court decidedthis issue in a footnote, so at that point, no, I didn’t thinkwe were going to the Supreme Court.

Q.How did you end up partnering with Professor Fisher?

A.He runs a Supreme Court clinic at Stanford and canpick and choose which cases he works on. He told me thatthis was the only case in the country where there had beena properly preserved objection at trial to one of these cer-tificates coming in. He said it didn’t matter that it was un-published.

Q.What is the status of your client’s case right now?

A.The U.S. Supreme Court typically decides the big issueand then sends it back to whatever court it has come from,which in this case was the Appeals Court. In footnote 14,

[the Supreme Court] sent it back to determine whether ornot the error in admitting the drug certificates was harm-less beyond a reasonable doubt. We argued the case to theAppeals Court on Oct. 8 and are waiting for a decision.

Q.Attorney General Martha Coakley took some heat for herperformance in front of the high court. How did she do?

A.She did fine. It was her first argument before the court,and you are bombarded by questions from all differentjudges. I think she held her own and did pretty well.

Q.Were you surprised she argued the case herself?

A.Yes, I was actually. Typically it’s someone from her appellatedepartment who would argue, but the opportunity was thereand she took it. How often do you get to do that? And shedoes have political ambition, so it would be hard to pass up.

Q.After the Supreme Court agreed to take the case, why did somany people continue to claim you had no chance of winning?

A. I think there were people out there not wanting to rec-ognize that this was testimonial because they wanted theresult to come out in the prosecution’s favor. But I think itwas very clear that these reports are testimonial, and thewhole reason the SJC had decided previous cases differ-ently is money. They said the certificates were akin tobusiness records. But it’s clear they are testimonial. Theyare created at the request of law enforcement. They arenotarized. Their employees are paid by the state, and it’sone whole element of the case.

Q.There has been a lot of talk about the application of thiscase outside the realm of drug certificates. What are some ofthe other cases this ruling might apply to?

A. It applies anytime prosecutors want to admit forensicevidence through a report or document as opposed to livetestimony. So it’s certainly DNA, ballistics, fingerprints,tool marks, bite marks. And then there are areas, like OUIsfor example, where it’s going to have to be fought out. Untilthe SJC and/or Supreme Court decides them, there are go-ing to be divergent decisions on them.

Q.How often has your phone rung with people looking foryou to handle their Melendez-Diaz appeals?

A. I have gotten numerous calls, some of them from girl-friends of defendants. They will get on the phone and starttalking about some case that they heard I handled, saying:“My boyfriend is in jail and he told me to call you.”

Q.Can you name a criminal appellate case in Massachusettsbigger than Melendez-Diaz?

A.There is not a bigger one, or at least nothing else comesto mind.

— DAVID E. FRANK

MARY T. ROGERS

Mary Rogers on ...Her most memorable moment at lawschool: “Negotiation class. I loved that classand got some great feedback from my pro-fessors.”

Highlight of her legal career:“The SupremeCourt decision in Melendez-Diaz and repre-senting Marlon Passley, who was exonerat-ed in 1999 from a first-degree murder con-viction.”

One thing about her that might surpriseother people:“I am an artist, and I also wrotea book, ‘Choose You,’ about the criminal jus-tice system that’s designed to help defen-dants and people in the system.”

Favorite book or film: “‘My Cousin Vinny.’”

What has kept her in the practice of law:“The Constitution. Defending the underdog,which isn’t easy. One of the reasons I wentinto this is to find out why people do whatthey do.”


Age: 52

Education: Suffolk University LawSchool (1987); Boston University (1984)

Bar admission: 1987

Professional experience: Sole practi-tioner, Salem (2003-present); sole prac-titioner, Boston (1991-2003); Commit-tee for Public Counsel Services (1991);DiMento & Sullivan (1989-1991); lawclerk, Superior Court (1987-1989) �


Rosemary C. Scapicchio says “losing wasn’t an option”when a jury came back against her client, Shawn Drum-gold, on 10 of 11 counts in a federal civil rights trial.

Drumgold, who spent 15 years in prison for allegedlymurdering 12-year-old Tiffany Moore until he was re-leased in 2003, had accused two Boston homicide detec-tives, along with the city of Boston and a former policecommissioner, of conspiring to violate his rights by coerc-ing witnesses and withholding exculpatory evidence.

The jury’s 2008 verdict left Scapicchio with just the onecount on which it had deadlocked.

“It was devastating to put what we thought was our bestcase forward and not have the jury side with us,” she re-calls. “Shawn was so looking forward to being vindicated,and to walk out of the courtroom that day not having beenable to accomplish that was devastating.”

Though Scapicchio took the case on a contingency basis,she and co-counsel Michael Reilly never consideredthrowing in the towel after the initial loss. “It was a brutaldiscovery schedule, and we put a lot of our own money in,so we were in the hole significantly,” she says. “But it nevereven crossed our minds to give up. We believed in the caseand that, if given another opportunity, we could streamlineit and make a jury understand.”

Scapicchio did just that, convincing the jury that Boston po-lice Detective Timothy Callahan had violated her client’s rightswhen he failed to disclose to the defense that he had fed andhoused a critical prosecution witness and helped him clearoutstanding default warrants. This time around, Drumgoldwalked out of the courtroom with a $14 million judgment.

“I think that anyone who frames an innocent man isevil,” Scapicchio says. “I don’t how you look yourself in themirror every day knowing that some man is serving a lifesentence because you paid a witness to testify the way hedid. I don’t know how you live with yourself; I really don’t.”

Q. Days after the 2009 verdict, Boston Mayor Tom Meninosaid the city should pay Drumgold. It’s been a few months sincehe made that statement. Has the $14 million check cleared?

A.No, we haven’t received a dime. Not even a phone call. Idon’t have any belief the city is just going to pay. The last Iheard was that they plan on taking this case to theSupreme Court, so the battle isn’t over.

Q.What was the biggest difference in the second trial?

A.The first time around, they were able to lay all the blame atthe feet of the Suffolk County District Attorney’s Office andbasically say that they must have known about what hadhappened with Evans. I don’t think we did a very good job ofproving they didn’t know. But this time around, we were ableto present evidence through David [E.] Meier, who was thechief homicide prosecutor in Suffolk, to show that he did nothave the information the defendants suggested was in thefile. I think that closed the loop on getting the jury to under-stand that this information was not in the possession of the

Suffolk DA, and it was just a smokescreen the defense wasputting up to try to save their client.

Q. Between the two trials, you must have heard some of thenasty comments people were making about your case …

A.Absolutely. … They said the whole thing was BS and that“you’re never going to get any money off of it. … Give it up.He’s lucky he’s out. We know he did it. He should be gratefulthat he is walking the streets.” All those things. But we stayedon course with what we have believed from day 1: Shawn didnot commit this crime, and we believed that we could tell thisstory to a jury in a way that they could understand.

Q.You actually spoke to some of the jurors after the trial.How did that come about?

A.When I was driving away from the courthouse after the $14million verdict came in, there were eight jurors across thestreet calling my name. So I pulled over and told them that Ican’t talk to them but they can certainly ask me questions. Wehad a 25-minute conversation where they were asking mequestion after question. They told me I have tremendous driveand that they had decided if they ever got in trouble that theywould definitely hire me. It was gratifying to hear that theydidn’t buy any of the issues the defendants were trying to cre-ate in terms of the verdict. They were 100 percent behind us.

Q.What was Drumgold’s reaction when he heard the liabili-ty verdict?

A. It wasn’t that courtroom moment everyone was expecting.When the jury announced its decision, Shawn didn’t even un-derstand at first that he had won because there were certainthings that the jury did not find liability on. I think the jurorswere looking for some emotion from him that didn’t come be-cause he didn’t understand. He walked outside and asked mewhat it all meant. I explained to him there that we won.

Q.What was Drumgold’s reaction to Callahan’s trial testimony?

A.Shawn literally went to the bathroom after he heardCallahan testify and threw up. That’s the way he has inter-nalized this. He is angry, but it’s not like he wanted to jumpover the railing and kill him. He was just shocked that thiscould have gone on for as long as it did and there was noremorse. I think this would have been a totally differentstory if Callahan took the stand and said that he screwedup and was sorry. But there was no remorse whatsoever. Itwas total denial that this even mattered.

Q. There was a story in The Boston Globe a few years agothat the city had spent more than $1.5 million on legal feesin this case. What do you think that tab is up to now?

A. I’d say it’s probably around $3 million in legal fees, andthat’s not counting costs. ...They outspent us significantly.It was David and Goliath.

— DAVID E. FRANK

Rosemary Scapicchio on ...Her most memorable moment at lawschool: “We were doing a trial competitionand my whole study group came to supportme. It was a great feeling to look out in theaudience and see all these kids there for you.”

Highlight of her legal career: “GettingDrumgold out of jail in 2003. It was a long-fought battle. We had lost at every stage ofthe game, and to accomplish what we didand being able to walk him out was one ofthe greatest days I think I will ever have in mycareer.”

One thing about her that might surpriseother people: “There is not too much that Ihold back. I am an open book.”

Favorite book or film: “‘The Fence’ by DickLehr. I know [Lehr], and it was easy to relateto all the players in the book.”

What has kept her in the practice of law:“Ilike the challenge of the Constitution. I firm-ly believe in the system and that it’s my roleto give people the fight and their right to afair trial.”


Age: 45

Education: Suffolk University LawSchool (1991); Suffolk University(1986)

Bar admission: 1991

Professional experience: Sole practi-tioner, Boston (1992-present); Kelleher& McCall, law clerk and associate(1988-1992)�

ROSEMARY C. SCAPICCHIO


Elizabeth Warren was chosen to play a starring rolein the unfolding drama of the nation’s economicmeltdown, but she hasn’t been content to read from

anyone else’s script. Instead, she has made the role her own,mixing economic populism and a finely honed sense offair play with sharp-eyed and often fierce criticism of someof the play’s biggest stars.

Warren was tapped by Congress to lead the oversightpanel that is monitoring the Troubled Asset Relief Pro-gram, or TARP, the $700 billion fund created to bailout fi-nancial institutions and rescue the nation’s receding econ-omy.

A Harvard Law School professor since 1995, Warren hasbeen dividing her time between Cambridge and Washing-ton, D.C. Her role on the oversight panel has garnered acrush of media attention, and she has appeared on every-thing from “The Daily Show” to CNBC, counseling prag-matism and accountability in response to the bursting ofthe financial bubble.

Her sharpest criticism has been aimed at the too-big-to-fail banks and institutions that she says wrote their ownrules while ineffective regulators watched. She has pro-posed a rigorous set of regulations designed to rein inthese monoliths while protecting consumers. Many banksand Wall Street players have attacked her approach:Thomas Cooley, dean of New York University’s SternSchool of Business, told Bloomberg that Warren is “an ide-ological crusader” who is waging a “self-righteous holywar.”

Warren has long espoused the creation of an agency thatwould protect consumers. With the Obama administrationand Congress considering the formation of the FinancialProduct Safety Commission, her name has been repeatedlymentioned as its possible leader.

Q.How has taking on this immense job changed your life?

A. I think about the job in Washington 24 hours a day. Iwake up at 3 a.m. and think of three more things I shoulddo. I am still thinking about it at 11:30 at night. It is all thetime, and everything I do makes me think about anotheraspect of the job. When I go to my dry cleaner’s down thestreet, I wonder about his access to funding. When I go toCambridge Common for a hamburger, I look around tosee how many people are eating out. The TARP so deeplyrelates to our economy that I see it everywhere.

Q.Do you think the government will create rules and regu-lations that would prevent another financial crisis?

A. I don’t know. I am deeply worried about the fact that,more than a year into this crisis, the basic rules haven’tchanged. Worse yet, the financial services industry has be-come even more opaque. We must write a new set of regu-latory rules. If we fail to do so, the country will shift into a

perpetual boom-and-bust cycle in which some will getrich in good times but millions more will be wiped outwith each successive crisis.

Q.You have said that experts destroyed our economy. Who,then, can we trust to oversee it?

A.This isn’t about a Hollywood star mentality. We need theright person regulating our financial institutions. Many ofthe problems are structural so, for example, the bank regu-lators in Washington get their budgets from the financialinstitutions they regulate, and the institutions can chooseto leave those regulators and pick a different and nicer reg-ulator somewhere else. That structure means that the raceis on to do the least possible regulation. That’s what has tobe changed.

Q.What role — if any — do you think you and your panelcan play in creating a lasting and beneficial reform?

A.The oversight panel can demonstrate that oversightworks. If we do our jobs well, we can show that it is possi-ble to run government operations effectively, efficientlyand in the public interest. We can also set new norms:Every time we ask the Treasury for more transparencyabout their operations, we sweep away a little bit of the no-tion that work can be done in secret. It’s not perfect, wecan’t change the whole world, but we can start carving outthe pieces that we can change.

Q.You spent some time as a solo practitioner in New Jersey.Is there anything you learned from that experience that hasstayed with you?

A.Absolutely. Solo practitioners understand responsibility;we get it because we understand that either we do it or itdoesn’t get done. Solo practitioners understand accounta-bility; there is no place to pass the buck. And solo practi-tioners are brave; doing solo practice, there is no place torun and no place to hide. So I think I use the lessons fromsolo practice every day.

Q.You have been named one of Time magazine’s 100 mostinfluential people. Do you think of yourself as influential?

A.No. I feel like I shout in a windstorm. There is so muchmore that I want Treasury to do, Congress to do, and eventhe American people to do, that I often feel my influence ispuny next to the job that needs to be done.

Q.What about your work at the panel has surprised you?

A.The politics. I had thought that, in a time of emergency,everyone would concentrate on bailing out the boat, noton hitting each other in the head with the buckets. Work-ing on a bipartisan panel has been a far larger challengethat I would have imagined.

— JACK DEW

ELIZABETH WARREN

Elizabeth Warren on ...Her most memorable moment at lawschool: “It was the first minute of my firstclass, when the professor began not by in-troducing himself or making a few friendlyremarks, but by asking the meaning of aterm. And I had done my homework, orthought I had, but I didn’t have a clue whathe was talking about. My heart pounded sohard I could feel it hitting my rib cage, and Ithought: ‘I don’t belong here.’ But I stuck itout, and I learned to read more carefully and,after that, nothing ever scared me quite somuch. I realized I could scratch my waythrough it, and it might not always be pret-ty, but I would make it to the other side.”

Highlight of her legal career: “Teaching mystudents, struggling with a complex idea andseeing those light bulbs go off in the room.It is a rush without compare.”

One thing about her that might surpriseother people: “I like to iron. I like laundry.”

Favorite book or film: “‘Casablanca.’ Wewatch it every New Year’s Eve.”

What has kept her in the practice of law:“It’s a place where it is possible to do somereal good, to make a real contribution.”

PHOTO COURTESY OF HARVARD LAW SCHOOL

PHOTO BY MILLICENT HARVEY

Age: 60

Education: Rutgers School of Law(1976); University of Houston (1970)

Bar admission: 1977

Professional experience: Chair-woman, Congressional Oversight Pan-el of the Emergency Economic Stabi-lization Act of 2008 (2008-present);professor, Harvard Law School (1995-present), University of PennsylvaniaLaw School (1990-1995), University ofTexas Law School (1986-1987), Univer-sity of Michigan (1985), University ofTexas at Austin (1983-1987), Universityof Houston Law Center (1981-1983),Rutgers School of Law (1977-1978)�


It took 19 years to accomplish, but in 2009 Raymond H.Young finally turned a vast, technical and vitally impor-tant reform of Massachusetts’ probate code into law.

The new Uniform Probate Code was conceived whenYoung came across an odd loophole in the old code thatprevented a certain “interminable” case from ever being re-solved. He mentioned the issue to members of the Massa-chusetts Bar Association in 1990 and soon found himselfleading a joint committee of practitioners from the MBAand Boston Bar Association.

The group’s mission was to study problems plaguing thecommon law probate system and devise ways to fix thoseproblems. It finally settled on several main reforms:stronger protections for people in guardianships, newstandards for how an estate is divided in the absence of awill, and an informal alternative to the cumbersome for-mal probate process.

Codifying the enormous sweep of common law probatepractices in the commonwealth took the committee fiveyears. And that was the easy part. When the group at-tempted to persuade the Legislature in the mid-’90s thatthe UPC should become law, it ran smack into the hard re-ality of Beacon Hill politics.

The consensus about the need for reform crumbled inthe face of interest group squabbling. The issue of aspouse’s share of an estate inflamed tempers and createdfactions. For years, Young’s reformed code languished indrawers and on desks. But he kept at it, and finally, in 2008,following a Boston Globe Spotlight Series that exposeddire injustices in the state’s guardianship system, the politi-cal stars aligned. Last January, Gov. Deval L. Patrick signedthe UPC into law, and, by July, the first of its measureswent into effect at the Probate & Family Court.

Although he has long specialized in probate and estatelaw, Young’s career is studded with tales from memorablecases involving refugee asylum, draft-dodging, desegrega-tion, divorce and a misbehaving Boston Municipal Courtjudge who was the subject of the only trial held at theSupreme Judicial Court in recent memory. The courtly 82-year-old maintains, however, that passing the UPC hasbeen the capstone of his career.

“It was practically a whole career all by itself,” he says.

Q.What was so bad about the old probate system?

A.There was so much of an initial delay in the probate proce-dures because the system was set up as if every case werecontested. In 99.9 percent of all cases, there is no contest, andit’s the way it had been done since the original days.

Q.Was there any particular nightmare case that made youwant to reform the system?

A.There is an interminable probate case in Massachusettsthat I used as an example. The will provision was: “At the

time of probate, it will go to the people who are then mydescendents.” And the court in its wisdom said, “That’s in-valid because we can’t be sure that probate would be ac-complished within the lives of the people now living plus21 years.” That means that the whole will was thrown out,and the only result was that it went by intestacy. That’s anexample of the bizarre things that could happen.

Q. If the system was so bad, why did it take so long to reform?

A.We ran into a problem with the question of spousal electiveshares, which is what a surviving spouse takes if the will does-n’t make any provision. There was a lot of disagreement abouthow that would work. Also, the Legislature doesn’t really actunless there’s a lot of political interest and pressure; it was not,in that sense, a sexy bill so it just kind of lingered. It wouldpass maybe one house but not the other, or it would get favor-able reports from the [Joint Committee on the Judiciary] andthen nothing further would happen.

Q.Why did it finally pass this year?

A.This time it passed the House, but it didn’t get up past theSenate. I had a client who was a 9/11 widow, and her familywas very active politically in Lowell. The bill at this point wasin the Senate Ways & Means Committee, so I had my clientset up a meeting for me with [Ways and Means Chair] Sena-tor [Steven C.] Panagiotakos. We had a discussion and hesaid, “Well, what is the most important thing about this bill?”And I told him the story about the interminable probate case,and he said, “That should have been fixed long ago.” Andthen The Boston Globe did a series on guardianship abuses,and that began, at least for a while, to produce some politicalpressure. But it had not been easy, I have to tell you.

Q. But the new code doesn’t fix one of the biggest bugbears ofthe old system: spousal elective share. Isn’t that a problem?

A.The spousal share is still in the offing. There is an inter-bar committee that is working on an agreed reform.

Q.Do you think that will ever really happen given how longit took to get the UPC passed?

A. I think there is some reason to hope that things will bestraightened out. There is a new spirit of conciliation. Andthis inter-bar committee did a whole series of statisticalcalculations of what each spouse would get in different cir-cumstances and found that our 1990 version of the UPCseemed to be the fairest.

Q. In 2011, when most of the UPC goes into effect, whattangible impact will it have on the lives of litigants?

A.There won’t be as much formality. The courts will bethere, but they won’t be taken up with just routine, non-necessary functions.

— JULIA REISCHEL

RAYMOND H. YOUNG

Raymond Young on ...His most memorable moment at lawschool: “Senior year I was taking a small classin suretyship from Wesley Alba Sturges, andhe was a master practitioner of the Socraticmethod. He was posing a particularquestionto the class, and whether he called on me orI volunteered, I’m not sure. I said, ‘Yes.’ Andthen there was a pause. And he said, ‘Yeswhat?’ And I answered, ‘Yes, sir.’ And helaughed.”

Highlight of his legal career:“I could agreewith Lawyers Weekly that getting the pro-bate code passed was the highlight of my le-gal career.”

One thing about him that might surpriseother people: “I’ve been together with mypartner Shirley Bayle for 45 years, and we’vehad the same bookkeeper for 45 years. Wehave two secretaries, and they’ve both beenwith us for 40 years. That’s probably more sta-bility than the average law firm.”

Favorite book or film: “‘The Verdict’ by Bar-ry Reed. Paul Newman was playing me in themovie.”

What has kept him in the practice of law:“So much to do.”


Age: 82

Education: Yale Law School (1950);Yale University (1947)

Bar admission: 1951

Professional experience: Partner,Young & Bayle, Boston (1964-present);sole practitioner, Boston (1952-1964);attorney, Warner, Stackpole, Stetson &Bradlee (1950-1952) �


One does have the sense that maybe I should juststop because I don’t know how much better itgets,” says Boston trial attorney Ellen J. Zucker, re-

flecting on a year in which she secured two major victoriesfor aggrieved female employees seeking to vindicate theirrights against powerful entities.

In one case, Carol Warfield, an anesthesiologist at Boston’sBeth Israel Deaconess Medical Center, sued the major researchhospital for sex discrimination, asserting that she had sufferedyears of abusive treatment by a colleague only to be demotedafter complaining to President Paul Levy. The hospital tried toforce the case into arbitration, citing a mandatory arbitrationprovision in Warfield’s employment agreement.

But in a decision that could have serious ramificationsfor employers that pressure neww workers to agree towaive their rights to a jury, the Supreme Judicial Court re-fused to enforce the provision, stating that the employ-ment contract did not explicitly cite discrimination as anissue subject to arbitration.

Meanwhile, Zucker defeated the city of Cambridge’s appealof a $4.5 million retaliation judgment she had secured in 2008on behalf of Malvina Monteiro, a municipal employee who en-dured five years of mistreatment and ultimately lost her job af-ter filing a race-discrimination complaint against the city.

The victories are particularly gratifying for Zucker, whosecareer has been fueled by her passion for social justice. But asgood as it’s gotten, she has no plans to quit while she’s ahead.

“I won’t quickly forget the satisfaction from these two wins,but I really look forward to the next challenge,” she says.

Q. People have said the SJC’s decision in Warfield v. Beth Is-rael Deaconess Medical Center could dramatically alter thestatus of mandatory arbitration clauses in employmentagreements. How so?

A.Because it says that for an arbitration agreement to be en-forceable in the area of Chapter 151B claims, the waiver ofthe plaintiff ’s rights must be in clear and unmistakableterms. That’s a new standard, but it’s consistent with thisstate’s approach to contractual waivers generally, and itmakes sense. [The decision also] suggests that the courttakes seriously that the rights provided under our state’santi-discrimination laws are meaningful and must be safe-guarded. While that might seem like a sort of truism, it’s not.

Q.Why was Dr. Warfield so opposed to arbitrating herclaim, given that an arbitrator would have the authority toaward the same types of remedies as a court?

A. It’s been long established in Massachusetts that a plaintiffin a discrimination case has a right to a jury. Giving up that rightis not something a plaintiff should do quickly, and she certainlyshouldn’t be forced to do it unwittingly. Dr. Warfield wasn’t aboutto get pushed into that corner. To be candid, it struck us as par-ticularly ironic that Beth Israel Deaconess, which has touted it-self as a place where transparency is the rule, would seek to pushthis case into a quiet corner through arbitration.

Q.The court regularly enforces the arbitrability of consumer pro-tection, tort and other kinds of claims without insisting on spe-cial, explicit language in the arbitration provision. So why shoulddiscrimination claims get special treatment in this respect?

A.Anti-discrimination laws are set up to give to each pri-vate party the right to attempt to vindicate wrongs they be-lieve occurred in the workplace. But they’re also set up in away that understands that private plaintiffs are serving asessentially private attorneys general, making sure that thepublic policy we care about, that workplaces are free of dis-crimination and people get a fair shot at work, [are accom-plished]. So when you ask why this case is different fromany other case, the answer is — and the proper answer ofthe court was — that these claims are different becausethey’re grounded in very important social policy.

Q.What’s to stop this ruling from creating a situation in whichevery statutory claim that could conceivably arise from an em-ployment relationship would need to be explicitly referenced inan arbitration clause? And might that thwart the common-wealth’s strong public policy favoring arbitration?

A.As a matter of social policy, I wouldn’t mind if the Warfielddecision did spark a more general discussion of the appropri-ateness of pre-dispute arbitration agreements in the context ofemployment and in the context of the rights of consumers, be-cause I think that there’s a real question as to whether arbitra-tion in those circumstances can ever meaningfully reflect theconsent of parties with equal bargaining power. … I will say thatthere are situations where a dispute arises and the fastest, mostefficient way to handle it is arbitration, and there’s nothing tostop people from agreeing on it once a claim arises. But thosecases are on an entirely different footing. … Arbitration remainsan important tool. The only question is, when employees walkin the door or take a position, should you force them to waiveimportant rights that speak to such important social policy?

Q. Just over a year ago you secured a $4.5 million judgmentin Malvina Monteiro’s retaliation case against Cambridge,and you overcame the city’s appeal earlier this year. What isthe potential impact of the Monteiro case?

A. I think it’s going to make employers think twice beforethey set on a slow but steady campaign to rid their work-places of someone who has the effrontery to complainabout discrimination and pursue her legal rights.

Q.The judgment included significant punitive damages, ararity in Massachusetts. How did you convince the jury thatthis case was so uniquely egregious?

A.I think what offended the jury here [was how clearly] the cityof Cambridge engaged in a systematic campaign to get rid ofMs. Monteiro. … [The city] had no explanation for why awoman who had done nothing but good work and about whomno complaints had ever been made prior to her filing discrimi-nation charges would suddenly be found wanting in every area.

— ERIC T. BERKMAN

ELLEN J. ZUCKER

Ellen Zucker on ...Her most memorable moment at lawschool: “The Anita Hill/Clarence Thomas con-troversy erupting in class debate and in thecommunity about six weeks into law school.The debate was far from academic for me be-cause I was also running the local chapter of[the National Organization for Women] andwould leave BC to go to the NOW office,where the phone was off the hook withphone calls from women who had experi-enced sexual harassment on the job.”

Highlight of her legal career: “When thejury returned the verdict in the case of Malv-ina Monteiro.”

One thing about her that might surpriseother people:“I love corny musicals.”

Favorite book or film: “I have a 6-year-oldson, so my favorite book is currently ‘Jamesand the Giant Peach,’ and my favorite movieis ‘Jungle Book.’”

What has kept her in the practice of law:“Ilike the people I work with, the issues I’mdealing with, and I find it an endless chal-lenge.”


Age: 47

Education: Boston College Law School(1994); London School of Economicsand Political Science (1984); WesleyanUniversity (1983)

Bar admission: 1994

Professional experience: Partner,Burns & Levinson, Boston (2007-pre-sent); attorney, Dwyer & Collora, Boston(1996-2007, 1994-1995); clerk, U.S. Dis-trict Court Judge Nancy Gertner (1995-1996) �

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2009 Lawyer of the Year (PDF) - Massachusetts …masslawyersweekly.com/wp-files/loty_2009_010410_sm.pdfDeakin tore through Rockefeller’s insanity defense, showing a lifelong pattern

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