We, members in good standing of the Maryland Bar, respectfully request that the Standing Committee on Rules once again consider recommending to the Court of Appeals mandatory continuing legal education (MCLE) for members of the Maryland Bar.

The challenges confronting the practice of law and our legal system today are more formidable than ever before. The law grows ever more complex, nourished by new statutes, new rules, new opinions by our distinguished courts, and new threats from forces that strain our traditional understanding of the rule of law and individual rights and liberties.

To meet the challenges of modern law practice, lawyers more so than ever before must be competent. The ABA Section of Legal Education and Admission to the Bar defines competency as basic skills, knowledge of the law and legal institutions, and the ability and skill to apply oneself to the task accepted with reasonable proficiency.

In recent times, the Rules Committee has twice considered this matter: once in 1995 and again in 2001. On each occasion, it did not seize the opportunity to mandate CLE. On the other hand, the Rules Committee did recommend that new members of the Bar undertake a mandatory professionalism course and that all Maryland judges undertake mandatory continuing judicial education.

We do appreciate that there are contrary views about MCLE. Busy lawyers do not have time. Solo practitioners may not have the funds to register for the courses. No one can force someone else to learn. There is no proof positive that MCLE actually improves competence. The costs and complexities of implementing rules and enforcing them are also valid concerns.

Answers to these views should be apparent. With modern technology, attorneys can easily access teleconferences, webcasts and podcasts at less cost than more traditional programs. While statistics may not prove that MCLE is effective, common sense and attorneys’ positive reaction to MCLE in other States attest to the fact that it enhances the legal profession, just as continuing education enhances many other professions.

Please consider our request to review this matter and recommend MCLE for the practicing lawyers in Maryland, with appropriate rules and means to establish and maintain the requirement.

Respectfully,

Paul Mark Sandler

Paul D. Bekman

I am grateful that the Abell Foundation has shed new light on the outcome of jury cases in Baltimore City, as reported in yesterday’s Baltimore Sun. But I take issue with the suggestion that we in Maryland create regional juries. Even if the concept were attainable by overcoming legal hurtles, such juries would smack of the same "court packing" attributable to FDR when he proposed that Congress add a tenth justice to the US Supreme Court. President Roosevelt considered the Supreme Court Justices to be in error when they persistently ruled against him.

We must remember our system of government is composed of federal, state and local governments. In Maryland we have twenty-three counties and Baltimore City. Each county and city has its own local laws and customs. The defendants are entitled to juries who live in the community in which the trial unfolds. Those who say that in some counties juries are more likely to convict than juries in Baltimore City seem to write with a preconceived notion that many of those found not guilty are, in fact, guilty. Each case, however, must be judged on its own merits. Perhaps in the city cases, the prosecution did not have the evidence to persuade or were not as experienced as prosecutors in the other counties.

Although I do not believe that we should create regional juries, we should be ever conscious of enhancing the already refined methods of educating new jurors. We should also take steps to assure their confidence in their safety. And, we should let them know they have our respect for the serious work they do and sacrifice they make to serve the public and our democratic way of life.

According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.

The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.

Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.

The crimes occurred on April 15, 1920 in South Braintree, Massachusetts, a small town south of Boston. Those responsible shot and killed a guard and a shoe factory paymaster carrying over $15,000 in payroll cash, then made off with the money in a getaway car. Less than a month later, police arrested Sacco and Vanzetti as they were traveling at night on a trolley from Bridgewater to Brockton. Both men were carrying guns when apprehended.

One hundred witnesses testified during the trial. For every eyewitness who identified the defendants as the culprits, another witness swore to the contrary. Many eyewitnesses for the prosecution were exposed as simply mistaken or not testifying truthfully. The defense presented a straightforward alibi. Vanzetti was in Plymouth selling fish. Sacco was in Boston at the Italian consulate obtaining a passport.

In an infamous incident during the trial, the prosecution introduced a cap found at the scene that witnesses claimed was similar to Sacco’s hat. The cap supposedly revealed an indentation where it would be hung on a hook at Sacco’s workplace.

To justify Sacco and Vanzetti’s possession of guns, the defense acknowledged that their clients were anarchists. In light of the public outcry against foreign anarchists and the violence then being perpetrated against such activists, the defense argued that it was necessary for Sacco and Vanzetti to carry guns for protection. Nevertheless, this line of defense was said to contradict an earlier explanation of their having fled to Mexico as pacifists to avoid the draft.

In its argument before the jury of white males, the prosecution was clearly aided by the public outcry against foreigners and anarchists. The hysteria about socialists, foreigners and anarchists throughout the nation at the time of the trial was at a feverish pitch. In his State of the Union address in 1915, President Woodrow Wilson had commented: ‘There are citizens…I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom of opportunity of America who have poured the poison of disloyalty into the very arteries of our national life. … Such creatures of passion, disloyalty and anarchy must be crushed out.’

Indeed, after World War I, as the ‘Red Scare’ gripped the country, the U.S. government became especially wary of domestic dissent. The so-called Palmer Raids in 1920 resulted in the arrest and deportation of thousands of aliens. The raids followed a series of explosions in various east coast cities, including Boston, where a bomb was detonated in front of the house of U.S. Attorney General A. Mitchell Palmer.

Given the historical background and the evidence that the defendants had fled to Mexico as pacifists, consider the court’s instruction to the jury: ‘You are not to allow the fact that the defendants are Italians to influence or prejudice you in the least degree. They are entitled to the same rights and considerations as though their ancestors came over on the Mayflower…Keep courage gentlemen, in your deliberations just as was typified by the American soldier boy as he fought and gave up his life upon the battlefields of France.’

It’s no surprise the jury convicted. Motions for a new trial and appeals were for naught. Even a special commission established by the Massachusetts governor was of no help to the hapless immigrants. They went to their deaths on August 22, 1927 passionately professing their innocence. Stirring, angry protests around the world punctuated the executions. Newspaper headlines and citizen furor in support of the executions and against the executions dominated public debate for months.

Were they guilty? Scholars and commentators debate the issue even today. There are theories that support either view. One theory even poses a case that one was innocent and the other guilty.

Regardless of guilt or innocence, I suggest that a trial lawyer or judge today reading the transcript would cringe at the unfairness of the proceedings. The judge was biased, and his rulings and instructions so demonstrate. Meanwhile, the defense lawyers were less than mediocre and lacked the skill and prowess of today’s advocate.

Sadly, we have had cause to remember Sacco and Vanzetti as our government has sought to use military tribunals to try suspected terrorists. While exigent circumstances are surely upon us, there is nevertheless an even greater need for fairness. The Sacco case teaches us that we cannot permit fervor and fear to eclipse the basic right to a fair trial, even for those who are not citizens.