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S3E10: Aviation Law, with Roger Clark RLAW'78
16 Plays2 years ago
Roger Clark RLAW'78 joins Co-Dean Kim Mutcherson to share his experiences as a plaintiff's attorney, as a pilot, and in aviation law.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
--- Send in a voice message: https://podcasters.spotify.com/pod/show/rutgerslaw/messageRecommended
Transcript
Introduction to Power of Attorney Podcast
00:00:10
Speaker
My name is Kim Mutterson. I am the co-dean of Rutgers Law School in Camden, and this is the power of attorney.
00:00:17
Speaker
So I get to interview so many interesting people as a part of this podcast, and today is no different. Today I get to talk to our alum, Roger Clark, not to be confused with our former professor, Roger Clark, about his eclectic career, his time as an adjunct with us at the law school, and just all manner of fun things. So thanks so much for being here, Roger. It's great to see you as always. Kim, thank you. It's a lot of fun to be here. Thanks for asking.
00:00:47
Speaker
Absolutely. I do just want to say one thing before we get started.
Roger Clark's Career Journey
00:00:51
Speaker
I don't have any problem whatsoever being confused with Roger S. Clark. Being confused with someone who has been nominated for Nobel Peace Prize is just fine with me.
00:01:05
Speaker
But I can't claim to be that Roger Clark, although I've known Roger for, well, I've known Roger since 1975. He taught me torts. He was one of my first professors at Rutgers Law School. I love that. Especially because I don't think of Roger as a torts person, right? Because he's been a crim person for all the time that I've been at Rutgers. So it's funny for me to think about him teaching another class. Well, I think after he taught torts to my class, he threw up his hands and said, never again.
00:01:36
Speaker
Seems possible, definitely. So the way I always start this podcast is by asking my guests to share their origin story with us. Of all the things that you could have chosen to do with your life, you decided that you wanted to go to law school and become a lawyer. So can you take us through that journey a little bit? What made you decide that law was where you wanted to be? That's a wonderful question. And it probably,
00:02:02
Speaker
is a difficult question to truly answer because it compels anyone who's asked that question to really go deep and to understand their origins. And as I reflect back on it, I realized that my original intent coming out of high school
00:02:26
Speaker
was to be a pilot for the United States Air Force. My father was a World War II pilot, ended up staying in the Air Force. He actually got out, but got recalled for Korea and then ended up staying. So I grew up on Air Force bases around the country and also overseas. I was around airplanes. I admired my father very much and so I wanted to follow in his footsteps.
00:02:56
Speaker
And I actually went to the Air Force Academy. And so I was at the Air Force Academy. And as I was there, my eyes deteriorated. And so I couldn't fly for the Air Force.
00:03:13
Speaker
eyes tend to cross when they get tired, colorblindness as well. And I probably wasn't fit to be a career Air Force officer by temperament anyway. So maybe my eye issue gave me an excuse. So I transferred and went to Florida State University to complete the last year and a half, two years to complete my undergraduate education.
Educational Influences and Lessons
00:03:41
Speaker
And I suppose in a certain way, I was probably drifting a little bit about what I wanted to do. But I think I was probably deceiving myself because I think I probably knew what I wanted to do. But the direct trigger once I recognized the direct career path I wanted to take is that I took a business law class.
00:04:03
Speaker
And I was impressed with my professor, and I seriously began to think about going to law school at that point. But that's the superficial story, I think much deeper. My interest and love for the law comes from my mother. And as I have thought about this,
00:04:24
Speaker
I realized that she had dreams, I think, for me to be a lawyer. And that was always in the back of my mind at some point. So when I was in my final few months of undergrad, I decided and got serious about going to law school. And I was attracted to Rutgers.
00:04:48
Speaker
Rutgers had good reputation even then. And I was a little bit of a wanderlust because, as I mentioned, we lived all over the country and also overseas, but I'd never lived in the Northeast. So I was attracted to Rutgers for a couple of reasons. One, because of its reputation and also because it was in the Northeast. And to my surprise, I was accepted.
00:05:14
Speaker
I hopped in the car and drove north from Florida to New Jersey. Wow. So as somebody who, you know, sometimes you talk to people who have lawyers and judges in their family and, you know, have folks to talk to about what is that law school experience going to be like, as somebody who didn't necessarily have access to that kind of information, what were you expecting when you got to law school and did law school live up to your expectations?
00:05:44
Speaker
Well, now I'm old enough to have remembered when this old movie, Paper Chase, came out. Yes. And it came out just, I think, a year or two before I applied to law school. So as I drove into town, I was expecting to see a Professor Kingsfield. And we all had our Professor Kingsfield. So I was anticipating a
00:06:09
Speaker
intellectually and challenging environment. I was anticipating the Socratic method. And so I was expecting something that would push me. And I wasn't disappointed. And, you know, as I said, I expected to get an excellent education when I came to Rutgers. But I think a certain part of me took it for granted. I didn't realize as a student how spectacular
00:06:38
Speaker
my education was at the school. I don't mean to besmirch anybody, but I consider my professor Kingsfield to be my professor Kepner, who taught civil procedure my first year. And we were fortunate that
Aviation Law Career Path
00:06:54
Speaker
he only called on you.
00:06:56
Speaker
one time. But you had to brief a case when he called on you. And my very first lesson as a budding law student, which I've always held close ever since, was in the very first day of class in Professor Kepner's civil procedure class, because there must have been 180 people in the classroom. And Professor Kepner comes in, striding up the center aisle
00:07:22
Speaker
walks up to the dais, turns around, not saying a word, and opens up a notebook, you know, on the podium, and then takes his finger and puts it down and calls out a name, which was not my name, which I'm glad. Anyway, it was someone in the far back, very back row, meekly said, yes. And Professor Kepner said, give us your brief on, I know your verses now, whatever it was. And so the students said, we had an assignment for today.
00:07:49
Speaker
And this is all pre-internet, pre-everything. And we were shortly, it was after we learned how to write as a species, but it was before everything else. And so the students said, I didn't know we were going to have an assignment. It was the first day of class. I thought there was the orientation session. And of course, that was what Professor Kepner was expecting.
00:08:14
Speaker
Um, and then he pointed out that the worst mistake that any lawyer can make is to make assumptions. He said, you would assume there was no assignment, but the assignment has been out on the hallway, uh, since, uh, June 30. And it was there for anybody to read and see. Uh, so I very first lesson was as a lawyer, you don't make assumptions. You have to drill down and find out what the actual facts are.
00:08:40
Speaker
Now, after that, the fear of God had been struck into me for that class. And every day, I completely briefed every class. I put more time into that class than any other in the first semester. He never called on me until finally, the three or four days before exam, I was one of three or four people had been called.
00:09:00
Speaker
That's stressful. I said, I got to get ready for exams. And so I went out to the bookstore next door and bought a canned brief. I can make this, the satchel limitations is run on this now. So I bought a canned brief and sure enough, you know, you wash your car, it rains the next day.
00:09:17
Speaker
So my very first canned brief, the next day I go in, he calls on me. And so I've got my canned brief stuck in a notebook and so we have to stand up and he's on the dais and I'm just underneath him. I had to almost sling over backwards, almost breaking my back to hide the fact that I had a canned brief. Anyway, I read the canned brief.
00:09:38
Speaker
He asked me one question. I think it asked for either a yes or no answer. I think I said yes. He says, well, that's not correct. Noah is the right answer, but good analysis. I got to sit down. And then one of my very good friends, we're still good friends even now, Chris Lease, who has practiced with White and Williams as managing partner there until very recently, turned around, who was right in front of me, looked at me and I can't quite repeat exactly exactly what he said, but you lucky.
00:10:12
Speaker
I love everything about that, about that story. It's a life lesson and a professional lesson, right? Don't, don't make assumptions. Um, it is a reminder. I think that this is, I say this to students all the time that, um, you know, people will remember you in law school. They'll remember, you know, when you get called on, they'll remember all sorts of things about you. And so you really want to, you're building your reputation. Um, you know, as soon as you start and I, and I love that you,
00:10:40
Speaker
Shared a story from your first day of law school, right? You will remember those moments so make sure that you're ready and that you're prepared and then also that a lot of us make lifelong friends in law school right that it doesn't have to be this sort of you know three-year slog of pain and fear and That you actually can meet some really really wonderful people particularly at Rutgers. I think so that's awesome
00:11:02
Speaker
So once you made it through law school, what did you think that you wanted to do with your law degree? This is where my interest in aviation was still with me. I didn't have any direct path to an aviation practice coming out of law school.
00:11:21
Speaker
And my parents lived in Florida. They lived up in the Northwest part of the state, up in the Panhandle. But I became afflicted with the tropical climate syndrome when I was a teenager. What I mean by that is that we lived in the Western Pacific on the tropical island of Guam for two and a half years when I was, well, from ninth grade through the completion of my 11th grade.
00:11:50
Speaker
uh in high school and i noticed that it was kind of neat when the temperature never drops below 70 and never goes above 88 and the only way you have a white christmas is to go down to the beach uh which i did do once or twice you know in christmas uh so i kind of had this in the back of my mind and and so i hopped in the car
00:12:11
Speaker
I drove south. This is kind of an apocryphal version of this. But anyway, what I'm trying to say is that I interviewed for jobs in Miami. And so I took the Florida bar, became a Florida lawyer, and practiced in Miami for a few years. Nothing in aviation, however, doing a lot of other very interesting stuff. I just loved
00:12:37
Speaker
The folks, you know, I worked with, I was in two different firms there. One was a, you know, back in those days, it was the largest firm in Florida. It tells you how much things have changed. It had 77 lawyers in it. That was considered, that wasn't considered, it was the biggest firm in Florida in those days. That's now probably considered a boutique. But, and then I went over and joined a small plaintiff's firm. And I enjoyed plaintiff's work very much doing that, but it wasn't an aviation.
00:13:06
Speaker
And then through my
Role and Empathy in Plaintiff's Law
00:13:09
Speaker
father, I had an opportunity to come out and interview with a firm in Los Angeles that did specialize in aviation. And throughout doing that, remember I could not qualify as professional pilot, but I was able to qualify and get my private pilot's license from the Federal Aviation Administration.
00:13:31
Speaker
It has so many limitations on it. I probably need a lawyer to tell me when I can fly and can't fly. I can't fly at night by myself because of my color blindness and things like that. But I proved I could do it. And so I got my license and the flu and enough to know about aviation and understand the difference between a flap and a nail on kind of thing. But the folks in Los Angeles has affirmed that
00:13:57
Speaker
specialized in aviation may be an offer, and I came out to Los Angeles. And that was in early 80s, 83, when I came out. And then opened up my eyes to how interesting aviation can be. Now, I like to say aviation is a national practice, but it's a small town practice all combined.
00:14:24
Speaker
And what I mean by that is because it is a niche kind of practice. The people who over the years have practiced exactly what I do, and we're heavy into aircraft crash litigation, insurance coverage, aviation matters, things of that nature, is relatively limited, maybe 400 or 500 people. And a lot of other branches of aviation, but precisely in what I do, it's probably 400 or 500 people.
00:14:53
Speaker
nationally. So we'd get a call on a case and it could be in Iowa, it could be in New York City, Georgia, Oregon, pick your state. And so we're having kind of a
00:15:11
Speaker
We have to cross state lines and get admitted for the purpose of the case, walk into the courtroom. And this is where the small town practice component of it comes into. So you walk into a courtroom in Portland, Oregon for the first time and you walk in on the case and you see the other lawyers there. And you know them all because they're from Georgia or they're from New York or they're from Philadelphia. And so that's the small town nature of the practice.
00:15:37
Speaker
And it's just been a thrill. To me, aviation is very challenging, very complex. It's in a substantive area that I just find fascinating. And yet it's had both a national and actually international component too. I kind of should have mentioned I've had cases outside of the United States. But you make good friends and you come across people. One of the nice things about
00:16:05
Speaker
about the aviation practice because you come across people time and time again.
00:16:10
Speaker
and you know them, you tend to have a tendency to be old school in the sense that you call someone up and you need an agreement on something and an extension and the other person will say, fine. Send me a note just to confirm it. And you have a really high assumption that that oral agreement will be honored in actual practice.
00:16:39
Speaker
Well, one of the things a lot of lawyers these days lament, I think, with big city practices in a town like Los Angeles, where I am now, where there are just so many lawyers and so many judges that you can go through a 40, 50-year career and never come across the same lawyer or even the same judge again. So having that small town component of an aviation practice has been very attractive to me, and I've enjoyed that very much. Yeah.
00:17:08
Speaker
Um, there, there are so many pieces there that I, that I want to delve into a little bit. Um, so, um, let's go back and then, and then come forward. So you said when you got out of law school that you were a plaintiff's lawyer. And I think a lot of times people hear that and they have no idea what it means. And somebody says, Hey, I'm a plaintiff's lawyer. So can you first sort of walk through that a little bit? And then we'll, we'll talk about aviation, which I think is fascinating.
00:17:29
Speaker
Well, as a plaintiff's lawyer, you represent the claimant and someone who has suffered some kind of loss or injury, whether it's a bottle injury, a loss of a family member through a death, or if it's a financial loss through a breach of contract or some kind of business infraction, and someone has suffered because of that way.
00:17:56
Speaker
You know, the law can't replace lives obviously. You can't restore a leg and, you know, can't undo post-traumatic stress disorder. So the only thing the courts can do is to try to come up with some type of financial compensation for those kinds of injuries.
00:18:12
Speaker
So a plaintiff's lawyer represents those individuals who have suffered some kind of harm and bring a case to court on their behalf and pursue that case in the courtroom, working it up ultimately for trial if it gets that far. And along the steps to get that far, you first have to file something called the complaint, which is on behalf of the plaintiff.
00:18:37
Speaker
then you have to serve that complaint on the people that you accuse of being at fault for what happened, and they have an opportunity to answer it, and there's an answer on file, then once the answer's on file, you have what's called an at-issue case, so we know what the issues are, then you have to develop facts, the evidence that explores those issues, and human interface that's called discovery, which can mean taking depositions, actually sit down witnesses,
00:19:05
Speaker
somewhere and with a court report and you swear them as if they're actually in a trial and ask questions and there's cross-examination, much as if you would actually be in a courtroom.
00:19:15
Speaker
And so you learn your case, you exchange documents, you exchange sworn statements back and forth, items called interrogatories, which have statements under oath about what the positions and the facts are, as known by the other side. And you learn your case and you come up, you have a trial date and you go in and actually try the case. And in front of a jury, mostly plaintiffs, lawyers like to have juries as opposed to having judges try their case.
00:19:44
Speaker
Some plaintiffs lawyers will actually take issue with that in some instances because I think statistically it shows that the judges are just as favorable as juries are in some cases, maybe not all cases. But that's the bias anyway, is to try a case to a jury.
00:20:02
Speaker
So being a plaintiff's lawyer is really different from lots of other practices of law in that you're working with people who have experienced deep loss or trauma or some sort of catastrophic accident. And I wonder if you can talk a little bit about what it's like to be. And I think this is an aspect of lawyering that folks don't always think about.
00:20:21
Speaker
You're not just asking people questions and trying to figure out what the damages are. You're also working with somebody who is maybe in pain or is mourning. And how do you manage that relationship with somebody, which is a professional relationship because you're their lawyer, but they're also someone who's telling you really painful things that have happened to them.
00:20:42
Speaker
Yeah. There is often a good deal of armchair therapy associated with it. The most important thing is to listen.
00:20:54
Speaker
and to empathize. And the reality is that, you know, every loss is different. Even though the lawyer who's sitting behind the desk may have lost someone important to them, it gives them some, that lawyer, some rough idea of what their client may be suffering that every loss is unique. And to sit and listen and try to understand and get some
00:21:19
Speaker
basic grasp of emotionally what they're going through. And that's a challenge. But you have to listen and you have to let the person who suffered the loss tell their story and give them time to do it. And sometimes the story doesn't come out all at once.
00:21:39
Speaker
Sometimes it may take months, if not a year or so. A lot of times things happen at a deposition that you may have sat down with your client and talked about the loss and you think you understand and have been told everything there is to be told. Then you're at a deposition and then because of the pressure of the moment, the person will come out with something that surprises you. And that even happens beyond the deposition, but in courtroom.
00:22:08
Speaker
But because just of the pressure of the circumstances, it has a tendency to actually bring things to the surface that a lot of people will keep buried. Absolutely. And I want to ask one more question about plaintiffs lawyers because
00:22:27
Speaker
As I said, I teach torts and so I think a lot about our system of how we deal with accidents and bad things that happen to people. But I think sometimes plaintiffs lawyers get a really bad rap, right? That the conversation is about people who are just chasing money and they're not the kind of lawyers that we should like.
00:22:51
Speaker
which I totally disagree with. So I'd love to hear you talk a little bit about how important the plaintiff's bar is and the work that folks do, not only for individuals, but the impact that that work can have much more broadly. I have the highest respect for plaintiff's lawyers. And we all know that no profession
00:23:16
Speaker
is perfect. There's going to be some bad actors in every profession. But my experience is that by far and away, the vast majority of plaintiffs lawyers are empathetic to the clients, are trying to achieve justice for their clients and do the best that they can on behalf of them. And some of the most generous people you'd ever want to find are plaintiffs lawyers.
00:23:43
Speaker
They're committed to justice. I think deep down they feel that they're on a mission trying to make the world a better place. And you look back over the last 40 or 50, 60 years, 70 years, all the post-World War II years, I think that the Planet Spar has had a huge impact on our culture in terms of defining what is safe, what's acceptable. We're far safer now. You look at tobacco, for example, just as one example.
00:24:11
Speaker
and what the Planus Bar has meant to smoking and reducing the exposure to carcinogens. And that's thanks to the Planus Bar, a group of people that were willing to put their lives and their money and years of effort into carrying this fight on. So, I mean, they're not just Don Quixote.
00:24:38
Speaker
The plaintiffs aren't just Don Quixote. They're fighting a real legitimate fight on behalf of justice for people who otherwise would not have it.
00:24:50
Speaker
Yeah, absolutely. And I think a lot of times people don't think about, particularly people who are not lawyers, who are not a part of the legal system, don't think about the ways in which lawsuits are their own form of regulation, right? I mean, it's sort of saying to people, this industry standard is problematic. You need to change it. And that can be really, as you say, very, very broad in terms of its impact.
Complexities of Aviation Law
00:25:12
Speaker
Maybe we should be a little nicer to plaintiff's lawyers than we are. I'll throw my boat in for that. Yes. Perfect. So let's talk about aviation. So first of all, it's such a great thing to be somebody who can combine your professional life with something that's incredibly interesting and important to you.
00:25:32
Speaker
in your personal life. So I think that's really fun. But also, I think aviation law is also this space where if you throw that out, people aren't quite sure what it means and what are all the different ways in which you might have to practice if you have an aviation law practice. So can you walk us through that a little bit? I mean, obviously, when planes crash, obviously, we all hear about the litigation there. But what are some of the other things that happen in an aviation law practice?
00:26:00
Speaker
Oh, sure. Well, there's just so much. And, you know, you look at aviation, it's...
00:26:09
Speaker
The nice thing about the subject matter of aviation is that it cross-pollinates a broad field. And when you look at civil procedure issues, aviation typically, you look in the case books, and typically the most complex civil procedure cases you read about are aviation cases.
00:26:31
Speaker
So, you know, the interplay between federal and state rights, which, you know, the trigger word there is to a large extent is preemption because, you know, the U.S. Constitution has a supremacy clause, so laws passed by Congress are supposed to be supreme. They will trump, so to speak, you know, any countervailing state laws, and that's a preemption analysis. So there's a lot of
00:26:57
Speaker
You might look at aviation as kind of like a course in geology. There's a lot of tectonic plate shifts. And so you have a tremendous amount of tension between state and federal rights in aviation. Constantly there's fights over if there is a remedy, is it provided by federal or is it provided by state law?
00:27:19
Speaker
Or if it's provided by state law, does a federal law take it away or limit it or increase it? Those types of things. So many of the cases can be in federal court or state court. There's this whole process about removal that most plaintiffs lawyers when it comes to an aviation case would prefer to be in state court. There's one or two exceptions where I think plaintiffs lawyers believe that federal court might be more favorable for them. But for the most part,
00:27:46
Speaker
plaintiffs or is preferred to be in a state forum on the assumption that ultimately the awards are more often given to the plaintiffs in a state environment. And then the words themselves are a little bit higher. That's the bias anyway. But on the contrary to that, the defense lawyers want to be in federal court as much as they can. So there's this process if there's potentially, if there's potentially a federal jurisdiction,
00:28:12
Speaker
You know, the defense lawyers will look at a case and will remove it from state court to federal court. Then you get into fight over whether or not the case should be remanded back to state court or not. And those have always been some very, you know, interesting battles. But, you know, when you look at, you know, just to give you an example on, you know, one case, how complex it can be.
00:28:38
Speaker
There was a crash of a six-person aircraft outside of Sydney, Australia. They were actually on a search and rescue mission to look for some friends who had disappeared flying another airplane west of Sydney the day before. This aircraft that was on a search and rescue suffered an engine failure and had to go into the mountains.
00:29:05
Speaker
Unfortunately, four of the six people on board died from the crash and the two people in the back survived, but were seriously harmed. And they called me in Los Angeles because the airplane was made in the United States and the engine was made in Mobile, Alabama. So we had we followed several suits because we weren't sure which court would retain the case. So I filed a lawsuit in Los Angeles.
00:29:33
Speaker
where one of the defendants was located, but then also filed it in Alabama, Mobile, Alabama, where one of the other defendants was located and became associated with a law firm that since some of the lawyers there became some of my best friends and still are even to this day. But we ended up
00:29:50
Speaker
deciding to go forward, and the court in Mobile, Alabama kept the case. But, and we moved forward. We spent several months in Australia taking depositions, and, you know, it's a different process down there. You have to get permission from the court to do it. You just can't notice them, and you have to be supervised by a judge while you're taking the depositions. And it was, and we had, the depositions didn't go on just for two months. They were double-tracked. So we probably had,
00:30:18
Speaker
three months of testimony, then our judge and...
00:30:20
Speaker
State Court and Mobile told us we had two weeks to try the case and we all kind of fell off our chairs, had to be clutching our chest, having a heart attack. So that we're going to get six weeks or two months of testimony down to two weeks. But there's a thing called choice of law in these cases. And, you know, it's unusual in an aviation case for there not to be a choice of law issue. You know, these airplanes have a tendency to leave the ground. They go to other places. And so you might have multiple states involved.
00:30:48
Speaker
And you're not sure where the lawsuit is going to be filed. So you have to decide what law is going to apply. Now, it could be a state of California, state of Florida, New Jersey, Pennsylvania, or federal law versus state law. Or in this particular case that I'm talking about, this accident occurred in New South Wales. Now, Alabama at this time had this choice of law rule.
00:31:13
Speaker
It's called Lex Loci, which means you apply the law of the place of where the accident happened. So the accident happened in New South Wales, Australia. That meant Alabama was going to apply the law of New South Wales. So how does the court in Alabama know what the law of New South Wales was? So we actually had a trial just on choice of law. And we brought all these retired judges and barristers from the Queen's bench up from Sydney.
00:31:38
Speaker
So we had a full day of testimony about what the law was. But I laugh about this because it's a clash of cultures because I noticed that as the day was wearing on, because every now and then I looked behind my shoulder, people would be coming and entering the courtroom. And I noticed that the Australians, every time they were coming in, they were bowing.
00:31:59
Speaker
And every time they were leaving, they'd turn around and they'd bow before they'd leave. And so finally we had a break. I said, what are you guys doing? I said, well, we're paying our respects to the court. I said, guys, these are the colonies, OK? I said, we don't do that. We don't even wear wigs. The lawyers don't wear robes. And you have to realize our judge, and we'd been down in one of the courtrooms in Sydney. And it's full of pageantry.
00:32:27
Speaker
you know, the flowing robes and the wigs and the scarlet robes and the big staves and the donations, you know, and all this sort of stuff. And it's all very solemn and impressive. And by contrast, our judge in Alabama, that no one would announce his entrance.
00:32:42
Speaker
the door would just open from the side and he'd come in, his road would be open at the front, he had a coffee cup, he'd walk up, sit down, put a foot on the bench and say, what's on the docket today, boys? All right? It's an interesting culture contrast, but we all spoke English for the most part.
00:32:59
Speaker
And we all shared a common heritage of the common law with a lot of variations on it. But we spent the whole day just trying the law. And we ultimately held a mediation on that case, but the mediation was held in Los Angeles. And so we successfully settled the case.
00:33:22
Speaker
Which meant that we never had to answer the question of how do we get two months of testimony into a two week trial. So I'm glad we never had to test that. So an accident in Australia, a lawsuit filed in Alabama and then a mediation in California. That's right. All in one case. Yeah.
00:33:40
Speaker
So I feel like after we're done today, I'm gonna have to reach out to all my civil procedure colleagues and say, you can have your students listen to the Roger Clark podcast, and then they'll know how important civil procedure is, right? I mean, that's the class I think in the first year that students often struggle with because it's, you know, it's not intuitive. It's just sort of this bunch of rules. And yet civil procedure is where it's at. I mean, it makes or breaks a case in so many ways. It's, you know, having,
00:34:10
Speaker
Like I said, growing up on military bases, I was taught by my father, who was a career Air Force pilot, that the word is mightier than the sword.
00:34:29
Speaker
And I think there's a time component to that, I mean, humorously, because if I have a book in my hand, I'm facing somebody with a sword in their hand, I'm not going to put my money on the guy with the book. But I get the point.
00:34:43
Speaker
because those folks who have served in the military protect us so that those of us who live by the word can implement the word. And so it's, and civil procedure is at the core of that. And some of the most thrilling moments I've had in my career is walking into a courtroom
00:35:09
Speaker
Um, where the issue is, do we have jurisdiction over someone?
00:35:14
Speaker
12,000 miles away on something that happened in a foreign country. And dealing with the issues, can this court here in Los Angeles rightfully assert jurisdiction over that person, can proceed with the case, and make a determination under the law and the facts as to whether an award is appropriate or not, and then can it be enforced? It's a thrilling thing to me.
00:35:41
Speaker
to see justice in that way work. And as I said, it's just some of the most thrilling moments in my career to see how that can happen. And civil procedures at the core of that.
Teaching and Mediation Insights
00:35:53
Speaker
Yeah, absolutely.
00:35:55
Speaker
So one of the ways that I think I first met you was when I was Vice Dean and you were teaching and have been teaching for us as an adjunct at the law school for many, many years. And I think that the initial story that I heard was, oh, we have this adjunct who flies himself here.
00:36:16
Speaker
to teach aviation law for our students. And I thought, this is a man I want to meet. That sounds really fascinating. But I do want to talk about the aviation law course because
00:36:28
Speaker
Over the last several years, I know that you've sort of turned it into this more skills-based course where you're sort of having the students work through a case. Can you describe that a little bit? Because I think it just seems like so much fun. Yeah. And I have fun teaching it. And the last couple of years, I based the course on the real life 737
00:36:52
Speaker
the Boeing 737 MAX litigation, primarily the crash in Ethiopia. And those lawsuits out of that crash were filed in federal court in the Northern District of Illinois. Now, you know, people may say, well, this is a crash in Ethiopia. Why are lawsuits being filed in Chicago? And the reason they're filed in Chicago is because that's where Boeing is headquartered. So there's jurisdiction.
00:37:20
Speaker
you know, over-bowling. And there can be arguments as well about whether or not the court should keep the cases because there may be a more appropriate place for them to be tried and that kind of thing. But I based the course on that real life incident and then a generous wrinkling of hypothetical facts, you know, to change the issues and change the arguments that we're making.
00:37:46
Speaker
Um, and so, uh, we'll, we'll, we'll typically, uh, this year, uh, we met, uh, I think every two weeks for, you know, two week session. Uh, we actually met on the weekends, which is really, uh, nice because there's no other distractions and, and, uh,
00:38:00
Speaker
A lot of folks that may have a hard time making a nighttime class on a Tuesday night or daytime class do have the time on a Saturday and Sunday. I really appreciate the fact that they gave up their football time. They could be watching the Eagles. They're with me in the stands. Watching the Eagles lose, yeah. Oh, spring's eternal.
00:38:22
Speaker
So, but we, so what we did, you know, we'll have different subject matters. And, you know, if you had a pie chart, you know, the question is, what is aviation law? And a lot of things get slung into that pie chart. You know, there's international law. This is coming back to Roger S. Clark that we were talking about earlier. You know, you take the Ethiopian air disaster. It was a flight from one country to another.
00:38:50
Speaker
And that triggers the international law component of aviation, which is called the Montreal Treaty, which has all sorts of different issues associated with it. So we study international law. How do you interpret a treaty? And what sources do you have to interpret that treaty? And then how do you implement the treaty?
00:39:12
Speaker
And so we're dealing with that. And because we're coming back to civil procedure, you know, you have hundreds of people, hundreds of different claims. It is all very complex, you know, civil procedure processes that come into play when you have a mass tort lawsuit like that, multiple people. And most of these complex civil procedure
00:39:37
Speaker
have been developed because of aviation matters over the years. And so you have to manage the cases. Then you have the interplay between what happened in the government and you have administrative law because a lot of these matters can work their way up through the administrative agencies before they get to the court and you have issues of what kind of deference the courts need to give, if any, to the federal agencies and how they interpret their laws and the rules and the regulations and things of that nature.
00:40:05
Speaker
And then, as I said earlier, you look at this tension between, well, we have this case in Ethiopia, the crash in Ethiopia, but you have people from all over the world that were on that airplane. So you have this poor judge in Chicago say, well, first of all, what's law and liability?
00:40:25
Speaker
Uh, you know, so I got to figure out what, what is the law to be applied to determine if there's fault here? But then after that, what, what are the laws on damages? Uh, I mean, should someone from, um, uh, Kenya, um, you know, have the same, uh, law on damages apply to that person's case to say someone from the state of New York?
00:40:45
Speaker
So, you have a choice of law on damages, so you can have multiple choice of law issues arising in the same case. So, in this course, we teach these different subject matters, but then they would have assignments. And so, typically in the two-day sequence, we'd study the substance
00:41:07
Speaker
day one, half of the day two, but then they would have assignments where they'd have to argue different motions. Everybody's a lawyer in my classroom. There's no law, everybody's a lawyer. So they get up and they argue for proposition or a motion and an opposition to it.
00:41:25
Speaker
And we did that, and as we went on and we went on, we first did it as a group. We had three or four people on a team, just so everybody could get their feet wet. And then the team would get reduced to two. And by the time, at the very end, it was a single lawyer arguing a single motion, and someone as a single individual would be in opposition to that. And we would go into the, you know, Rutgers has a beautiful mood courtroom. And, you know, real court houses, many real court houses,
00:41:54
Speaker
across the country would die for this. So we go in on the final day and we spend the full final day arguing. This is really where the rubber meets the road because now everybody has their feet wet. They understand how the process is. So everybody is writing, submitting their papers in advance, exchanging their papers,
00:42:18
Speaker
just like you would in a real court practice. And they come ready for bear, right? And they're ready to argue. And every year, I'm just so impressed with the quality of the arguments. And they're just so much talent. And this year was just no different. And folks were making arguments and coming up with issues that
00:42:39
Speaker
I just found thrilling things that I hadn't thought, I always learn from this. I almost feel like I'm cheating because I'm supposed to be the professor, but actually I'm learning, but I learned from my students. And we went through this whole process and we wear the robes. And so I sit there in the robe, so they have the experience of being in a courtroom environment with a judge and they get challenged. There's no free pass on this. So just like a real lawyer, if the real lawyer is going to go off
00:43:09
Speaker
on some kind of tangent, they're gonna be challenged. What's your basis to make that claim? Is that the law? Is that the fact? And so they get pressed on it, just like you would in real life. And then I have the students cycle up, because I like them to put the role on for at least one cycle to sit with me, because what a difference a point of view makes. So suddenly you're looking at it from the perspective of the judge and what that means for them
00:43:36
Speaker
The next time they argue, they'll have the experience of what a courtroom looks like from the perspective of the person sitting on the bench, and that may in fact affect.
00:43:45
Speaker
and improve the quality of their argument the next time around. So we have a lot of fun doing it. And I think that the idea is that by the time the course is over, the students understand what it means to argue. And lawyers are famous for talking. But the reality is that
00:44:08
Speaker
90% of her time is writing, not talking. And so it's important to focus and make the impression that it's important to write well and write well. And then once you actually get into the courtroom, speak well also. And that's part of the process of trying to learn these skills. And it's not just being in the courtroom as a lawyer. These are things that serve you in life everywhere.
00:44:34
Speaker
uh you know so the next community event you go to you you want to you know lawyers are expected to be leaders uh and and i mean it's by virtue of having that law degree people look to the oh i i know so and so who lives down the block they're a lawyer i think they should take the lead in the next community meeting and and they expect you to get up and make the presentation so these are skills that apply all across the board whether it's in the community center or whether it's in the board room or office or the courtroom
00:45:00
Speaker
Yeah. And I mean, the classes that are taught by our adjuncts, particularly the skills classes, I think those are some of the classes along with the clinics that students tend to love the most, right? Because it really lets you try on what it means to be a lawyer in all of these sort of different facets. And it's a really nice way for people to start to feel
00:45:22
Speaker
to start to build their professional identity, which I think is really terrific. But the other thing that I want to talk about, because I know that I've taken a lot of your time, I don't want to take all day, but I do want to talk about mediation because
00:45:35
Speaker
On one hand, trials are really exciting and the idea of standing up in front of the judge and pitching to the jury and all of this good stuff, but a lot of cases don't go to trial, right? And the idea of having alternative ways, ADR, alternative dispute resolution, is certainly a lot more popular now than it was in the past and you have a mediation practice. So could you talk about
00:46:02
Speaker
Certainly as somebody who's had both experiences, how is mediation different and why, if you believe this to be true, why is mediation really such a critical part of our legal system now? The cases of, you know, I've been practicing since 78. And so when I started practicing, mediation was not the name of the game.
00:46:30
Speaker
And in fact, I think that the first court-implemented mediation program was in the Pacific Northwest, Oregon or Washington about that time. And so mediation started to creep into the parlance generally in the 80s. And most lawyers were suspicious of it.
00:46:54
Speaker
you don't want to go to a mediation and spill the beans. Because I've got that ace in my pocket. I don't want them to know about that ace in my pocket. I'm keeping that for trial. And of course, these are people who have been, we're talking about 1980, these are people who have been practicing law since World War II. And so it was a trial mindset. And if you go back historically, you go back to Abraham Lincoln.
00:47:21
Speaker
I think that the standard rule is that nine out of 10 cases that were filed, and we're talking about civil cases, that were filed in the days of the 1830s and 1840s and 1850s, 80 or 90% of those would go to trial. And then I think by 1930s or so, that number was down to about 50%. When I started practicing in the late 70s, the general rule was one out of 10 goes to trial.
00:47:49
Speaker
Now, it's less. It may be something like one out of 100. And part of what's going on is that the case generally had become more
00:48:02
Speaker
fact intensive, paper intensive. It's harder to get these cases tried because you go back 40 years ago, you'd see one of the old war horses go down and try a case. Had a folder that was barely a few millimeters thick and said, I got my three documents. That's all I need on this case. I got the three key documents.
00:48:24
Speaker
And a lot of lawyers would say, any case can be boiled down to three documents, right? And I haven't heard anybody say that in a few years. But the point is that it's gotten a lot more paper intensive, a lot more fact intensive. And the judges are pressed for time because their caseload has increased. I think the number of judges per capita has not increased with what it was maybe 40, 50 years ago.
00:48:53
Speaker
My impression is I think I've read recently but yet so the case loads on the courts have gone up, they don't have as much time to spend on cases so the courts now rely heavily on the mediation process to get the cases resolved and what I've noticed is that there's some lawyers who now
00:49:16
Speaker
traditionally trial lawyers, but also have become very good mediator lawyers, are good at mediation because the mindset now is where you'd once prepare a case for trial and the mediation was a distraction in advance of that, where now people generally prepare a case for mediation. And if it doesn't get resolved, then they do go on to trial. So it is a different mindset and people will come with mediation and now the bias in mediation
00:49:46
Speaker
And now I'm speaking as a mediator. I said, if you want a case settled, share everything with me. And don't hold that ace in your pocket. Mediation is a mixed motive process. Generally, both sides want to settle.
00:50:09
Speaker
but yet they can't agree on a number. So there's a mutual desire to settle. There's distance on where the number is.
00:50:19
Speaker
And the mediator's job is to try to, of course, get the parties together to a point where both parties probably want to go, but neither wants to be the first to get there. And so I've been doing this long enough now where I understand the strengths and weaknesses in cases. And so this is by virtue of my experience as a practicing trialer comes into mediation, particularly in aviation cases and things like that.
00:50:49
Speaker
I can understand where the strength and weaknesses are someone's case and help them work through that and help them to praise the case and evaluate it and help to get them to a place where the case can settle because typically both sides start on the.
00:51:07
Speaker
somebody's gonna be probably outrageously high and someone's gonna be outrageously low. And you need to get to both of them within what's called a zone of reasonableness. And once you get both sides within a zone of reasonableness, it becomes gravitational. The parties have a tendency to come together. But they just, as I said, they don't want, neither wants to be the first one to get there. So part of the mediator's job is to help them get there at the same time. So I enjoy mediation.
00:51:35
Speaker
It's a challenge. There's a lot of satisfaction for me to sit down on a complex case with a lot of challenges to it and help the parties work through their problems and to get a resolution. And, you know, and sometimes I have to remind myself I'm not an advocate because, you know, I've got a mediation coming up at the very beginning next week on an interesting matter. But, you know, I look at a
00:52:01
Speaker
you know, when I read the briefs, I'll read one brief and I start, I know I realize I'm thinking as an advocate, you know, as if I wrote that brief. And I said, wait a second, just cool down here. Now that I read the other brief and then I flip out the other side and then I need to get it in the right mindset because I'm not an advocate.
00:52:17
Speaker
I'm a facilitator that is there to try to help the parties resolve the case. And so I give the case to resolve. I mediate for the federal court and have done that for a number of years now. And that's whenever we run across and talk to the judges, they're always happy to see us because they give us a pat in the back and say,
00:52:39
Speaker
We want you guys to settle these cases. Get them off my docket. They're just busy.
Closing Reflections
00:52:48
Speaker
Yeah, yeah. Well, Roger, thank you so much. I mean, this was just an absolute pleasure. It's always a pleasure to talk to you. But it's great to just sort of hear your journey and hear your perspective as somebody who's been practicing law for a really long time and who has sort of watched some of the shifts that have happened in our legal system, hopefully mostly for good. So thank you again. Thank you so much for your time. And I look forward to when we can grab dinner again.
00:53:18
Speaker
Thank you, Kim. It's been a pleasure, and I will always enjoy talking to you. And kudos to you and all the faculty and staff at Rutgers Law School. It's a wonderful place. Can't say enough about it. And not only did I make great friends, but I learned how to think. I got a tremendous education, and the return on my investment at Rutgers is just off the charts.
00:53:43
Speaker
You know, I doubt that Bill Gates has had a better return on investment than what I got from my education. So thanks for all that you guys do. The Power of Attorney is produced by Rutgers Law School. With two locations, minutes from Philadelphia and New York City, Rutgers Law offers the prestige of reputation of a large, nationally known university with a personal small campus experience. Learn more by visiting law.ruckers.edu.