David J. Burman - 2004 Goldmark Award Acceptance Speech
I would like to take a few minutes of your time to thank some of the people who contributed to this effort, many in ways at least as important as my efforts.
And I'd also like to tell you a little bit about why this effort, and this award, mean so much to me.
I'd like to acknowledge and thank so many people. To save time, I'll narrow my thanks largely to those from our community.
First, our clients at the Legal Foundation of Washington, its Executive Director, Barbara Clark, and the entire wonderful staff, including Dee Thierry, Caitlin Carlson, and Vicky Stifter , and others; they were a model client, and the opportunity to see up close the great work they do and to get to know them was a reward in itself.
Second, the LFW Board of Directors, particularly the Presidents of the Board , who had the pleasure of being named defendants by virtue of their position, including (in reverse chronological order) David Leen , Kay Frank , Judge Cindy Imbrogno, Judge Greg Tripp, Dwight Williams, Brad Diggs, and Kevin Kelly.
The Washington Supreme Court Justices, also defendants, and their counsel, Marnie Hart of the Attorney General's office, who brought her great talents to bear for the past seven years.
All of the exceptional lawyers who drafted amicus briefs in support of our case at the Ninth Circuit and Supreme Court level, or who otherwise helped us in drafting our briefs and preparing for oral argument, in particular: Steve Rummage and Jeff Fisher and Davis Wright Tremaine, for their great amicus briefs and help in preparing to argue; Jay Carlson and Preston Gates and Ellis, who worked tirelessly behind the scenes.
Two lawyers outside of Seattle deserve special mention: First, Tom Brown of Heller Ehrman. Tom is from the San Francisco , not the Seattle , office; but no single lawyer was more dedicated or helpful than Tom. His efforts included powerful amicus briefs in the Ninth Circuit and Supreme Court.
And second, Carter Phillips and his colleagues at Sidley Austin in DC. Carter is the dean of U.S. Supreme Court practitioners in private practice, and at a time when there were many volunteers to take my place at oral argument, Carter volunteered to ride shotgun. He contributed many hours to the briefs, to sharing his oral advocacy experience and ideas with me, and to leading a moot court whose brutality was beyond belief.
Many other leading firms outside of Seattle played important roles, and not surprisingly, with Heller they make up five of the top ten firms nationwide in terms of pro bono publico contributions—Covington, Jenner & Block, Morrison & Foerster, and Wilmer Cutler.
My thanks to my family, my wife DeeAnn and my daughters Blaire and Kendall. They not only put up with some longer than usual hours, including DeeAnn's spending a vacation in the summer of 2002 watching me read every Supreme Court just-compensation case, but they had to listen to me try out different arguments. But mostly I thank them for their own commitment to helping other people, which so frequently spurs me into asking myself whether I'm doing enough.
Finally, thanks to our team at Perkins Coie. Nick Gellert was the first person I turned to, and in this case, as in so many pro bono matters, he was central to the effort. I love public law litigation. One reason is the tension between social facts and historical facts, which creates very different issues than when you are dealing with just historical facts. Advocates and judges often assume that social facts are outside the record and are a given, but one key challenge in public law litigation is to make sure the historical facts support your position on the social facts, and that your presentation of the historical facts is so compelling that it makes it difficult for judges with opposing predilections to assume facts consistent with those predilections.
Nick accomplished that. He took the depositions that tied our opponents down; not enough with the Ninth Circuit panel, but eventually central to the Supreme Court decision. Our opponents picked Washington due to the Limited Practice Officers and earnings credits, and Nick made them regret it.
Todd Pettys, now a law professor but a tremendous contributor to our early briefs.
Katie O'Sullivan. The case lasted so long Katie had time to go clerk for Judge McKeown, return and become eligible to work on Ninth Circuit matters again, and then take the lead in drafting our rehearing en banc petition, and to help in so many other ways in recent years.
And Charles Sipos, who started working on the matter even before he was to start as a new lawyer, and thus was without pay. He was instrumental in our final success.
Our secretaries and numerous summer associates over the years.
And thanks to the Perkins Coie partnership. I know that big law firms can do more, but the judges I clerked for were right that law firms can be a great platform for accomplishing more than you could on your own. And Perkins Coie in particular, and the many other great firms in this community, make a big difference. The top 100 U.S. law firms provide more than 2 million hours of pro bono services per year; Perkins Coie alone provides over 25,000 hours, a number that is steadily growing. The average in our Seattle office is over 60 hours per attorney, and the IOLTA team spent more than 4000 hours. Our firm's contribution is due to the commitment of many individuals, but also to the strong support of the partnership, as reflected in the leadership of Tom Alberg and then Bob Giles as Managing Partners. And the significant increase in our efforts in recent years is due to Julia Parsons Clarke, our pro bono publico partner.
The support of the firm is not just in compensation for associates and staff, and encouragement and facilitation of participation, but in the courage and leadership to be willing to explain to staff, to clients, and sometimes even to our own lawyer colleagues that our pro bono publico efforts are not a ratification by the firm as an institution of the underlying causes, but a dedication to access to justice for both sides of controversies, public and private, regardless of the ultimate resolution.
Others at Perkins have taken on far less uniformly popular causes than this one, whether it be the Somali grocers and immigrants just after 9/11, Greta Cammermeyer, assisted suicide, affirmative action, the right of hateful or disturbing voices to be heard, or the defense of defendants sentenced to death for horrible crimes, and the firm has stood tall behind them.
And our clients not only understood but seem to appreciate our efforts. Among my friends here today are inhouse lawyers from Boeing – Louise Mnich, chief BCA lawyer; Craig Heyamoto, Heather Howard, Marilyn Sloan, Ron Suter, Tom Waite, and others; Costco – Sheri Flies and John Sullivan; InfoSpace – Melissa Scanlan; Nintendo – Rick Flamm and Vanessa Lee; Starbucks – Paula Boggs. I apologize to those I missed in the crowd today.
Let me turn to why this honor is so meaningful to me.
First is a coincidence. Harry Schneider mentioned my clerkships. I was indeed very fortunate to clerk for two incredible men. They had different backgrounds but a common optimism and desire to make things better. In my last year of clerking in DC, I asked both for advice. Despite their differences, they gave me surprisingly similar advice:
- Get out of DC, you can always come back.
- Give private practice a try, you can always move on and you'll be surprised at how this profession allows you to make both a living and a difference. Both made it clear by their example and their advice that they expected each of their clerks to try to make a difference.
- Go to a community where you not only have a chance to work to improve things but you sense an expectation that you will do so.
I suspected Seattle was such a place. I was fortunate to have Mike and Sue Brandeberry a year ahead in law school, and had talked often with them about Seattle .
During my final year of clerking, the first two practicing Seattle lawyers that I interviewed with were people who were in DC on business and took the time to meet with me. I knew from those two people that Seattle was a place where there was both an opportunity and an expectation to work to make things better; I was excited by their separate commitments to lives that were full as professionals, as citizens, and as beneficiaries of our country and profession and who felt a clear obligation to give something back.
Those two people were: Chuck Goldmark and Margaret McKeown. I was fortunate to be Judge McKeown's colleague for 17 years, but like many here I knew Chuck Goldmark all too briefly--a couple of meetings in DC, a wonderful dinner that DeeAnn and I had with him and his wife in Seattle, a number of phone conversations as we narrowed our job search down to Seattle and ultimately to a choice between his firm and Perkins Coie.
To have helped defend a program that Chuck Goldmark and Judge McKeown helped create, to receive an award named for him, at a program where Judge McKeown is the keynote speaker is an incredibly gratifying and powerful experience.
The second reason this is so meaningful is all of you, from our speakers, to my wife and daughter, to my colleagues and clients and friends, to all of you. I am in awe of the accomplishments, civic, legal, pro bono, and otherwise, of so many individuals here. So many people here have done so much more that I have. I do not flatter myself to think that you are here because of me; you're here to support the organization's efforts and to hear Margaret McKeown, but it is an amazing feeling to receive this award in your presence.
You are the core of what makes the legal community in this state such a force for good, and that creates that expectation of making a difference. Many have already been mentioned by other speakers and in my thanks, and any effort to start naming others is doomed to leave dozens and dozens of equally deserving people unmentioned.
Other judges like Judge Fletcher, Chief Judge Coughenour, Judge Alsdorf, legal services lawyers that I've worked with and, yes, sometimes against, such as Peter Greenfield, Pat Arthur, Dan Ford, John Midgley, and others.
The room is full of other private lawyers who make a difference like Ken McDonald, Lem Howell, John Phillips ; other officials like our U.S. Attorney John McKay, WSBA presidents Ward and Savage, Aaron Caplan and Julya Hampton of the ACLU, Connie Proctor of the UW regents and Karr Tuttle.
And I am blown away that Mike Traynor, the President of the American Law Institute and a partner at Cooley Godward in San Francisco, would go to the time and expense of being here today. Mike is one of the heroes of our profession.
The third reason this is so special is the effort it supports.
As I told Barbara Clark, LFW might well find advocates who were smarter or more polished, but no one would work harder or be more dedicated.
The triumph of IOLTA is not the decision in Brown v. WLF, but the incredible work that is done every day by legal services and pro bono lawyers. My small contribution pales in comparison to what they do every day.
Let me read a bit from one or two of the dozens of emails we received on the morning of March 26 when the decision came down.
Because of your work low-income women in Oregon will continue to have legal help when they flee from domestic violence, children will have access to assistance on adoptions and dependency issues, farm workers will have an opportunity to seek payment of their wages, home owners can fight against attempts to seize their home equity and seniors will have an opportunity to improve government services. I wish you could have been here this morning when our dedicated staff heard that the Supreme Court accepted your arguments. ....
.... I hope you can begin to understand how important this is to our clients and our ability to serve our clients over a long period of time.
and
Just this morning the managing attorney for the Tennessee Justice Center , Gordon Bonnyman, was reporting on the TJC's success in having life sustaining medical care restored and continued for a significant number of seriously ill indigent patients across our state. What you and your team accomplished in the Brown case is not only a notable vindication of the noble principle of equal access to justice, it is a magnificent real world triumph of hope and dignity for some of our country's most vulnerable and fragile people.Tennessee Justice Center , Gordon Bonnyman, was reporting on the TJC's success in having life sustaining medical care restored and continued for a significant number of seriously ill indigent patients across our state. What you and your team accomplished in the Brown case is not only a notable vindication of the noble principle of equal access to justice, it is a magnificent real world triumph of hope and dignity for some of our country's most vulnerable and fragile people.
The magic of IOLTA is in the ability to turn pennies into such a force for good, and to leverage that money through the efforts of those dedicated lawyers.
In preparing for oral argument, I knew that I would not get a chance to engage in any great heights of oratory. The Justices have an amazing ability to sense that a rhetorical flourish is on its way, and to cut it off at the knees with a volley of questions. But in the slim chance that a justice would ask a question that would give me an opening, I spent a bit of time before the argument looking for a quotation that would capture the importance of IOLTA and of access to justice. Two seemed most pertinent, though I did not get a chance to share them with the Supreme Court. The first, from Learned Hand, was to the New York Legal Aid Society:
If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.
The second, from Frederick Douglass, explains why support for access to justice should and usually does spread across the political spectrum:
Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is in an organized conspiracy to oppress, rob, and degrade them, neither persons nor property will be safe.
The commitment to access to justice of our judges, our bar associations, our legal services organizations, civil and criminal, our private lawyers, and our corporate citizens –of you--is unmatched, and I was honored to be a small part of that effort.
Let me briefly conclude:
As Frederick Douglass suggested, if we cannot equalize resources or even opportunities, we must at least keep alive the optimism that there is a chance and that justice will prevail more often than not. That sense of optimism that things can be made better, and the dedication to trying to do so, is, as I said, what attracted me to Seattle and what this audience reflects and creates. Compare it to the sarcasm and cynicism in Justice Scalia's dissent in Brown v. LFW , in which he sneers at what even our opponents had acknowledged were the laudable purposes of IOLTA. Cynicism is an excuse for inaction and an obstacle to joint action to make things better. There are many conservative and libertarian voices in our community, and I am often in disagreement with them, but usually they are motivated by a desire to improve things, not the "I've got mine, Jack" cynicism of Justice Scalia.
Justice Scalia is so skeptical of group efforts to improve things that he not only does not believe that such goals justify takings of property but that even where no value is involved he wants to arm every individual with a judicial monkey wrench to intercept progress.
Justice Scalia was right in sensing that IOLTA is a threat to cynicism, and a powerful force of optimism.
I'm so proud to have been a small part of that effort, and of today's celebration of the efforts to improve our society of the Legal Foundation of Washington, of IOLTA generally, and of this audience.
Thank you.