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2 t h e w i n n i n g e d g e Helping your client recover from personal injury or medical negligence involves risk and challenge. Our experience, resources and record of success will keep you on course. For 100 years, we ve worked with injured Mainers and their lawyers to obtain fair compensation. We would like to work with you. let s talk PORTLAND LEWISTON BANGOR

3 MAINE BARJOURNAL THE QUARTERLY PUBLICATION OF THE MAINE STATE BAR ASSOCIATION MAINEBAR.ORG Congratulations, Diane Dusini! The Maine Law Alumni COMMENTARY Association presented Attorney Diane Dusini with the Distinguished Service Award at its Annual Dinner. Diane was recognized for her significant contributions to the legal profession and for her longstanding support of the University of Maine School of Law.. 3 President s Page by Diane Dusini A Great Honor FEATURES 11 Health Care Reform In America: The Good, The Bad And The Ugly by Jerry W. Taylor VOLUME 29 NUMBER 1 WINTER Remarks Of Judge Kermit V. Lipez, United States Court Of Appeals For The First Circuit, For His Portrait Ceremony by Judge Kermit V. Lipez On the cover: Image Copyright: Lloyd Paulson. Used under license from Issue editor: Jonathan Mermin Citation note: According to Uniform Maine Citations (2010 ed.), [a]rticles in the Maine Bar Journal should be cited as follows: Paul Mc- Donald & Daniel J. Murphy, Recovery of Lost Profits Damages: All is not Lost, 24 Me. Bar J. 152 (2009). DEPARTMENTS 7 Pro Bono Maine The Maine Bar Foundation: A Snapshot Of The Past And A Peek At The Future by Diana Scully 16 New Lawyers Section Report by Caroline Jova 25 MSBA Corporate Patrons 26 Silent Partners: LAWYERS HELPING LAWYERS 28 Jest Is For All by Arnie Glick 31 In The Alternative by Jonathan Mermin 32 Sustaining And Supporting: The MSBA MEMBERS WHO GIVE MORE 33 Classified Advertising 34 Beyond The Law: John Carnes by Daniel J. Murphy 38 Advertisers Index: SHOPPING MADE EASY 39 Supreme Quotes by Evan J. Roth 42 Calendar: KEEPING UP WITH EVENTS

4 President s Page A Great Honor by Diane Dusini I t is a great honor to represent more than 3,100 members of the Maine State Bar Association as your new president. While following in Bill Robitzek s footsteps is a very large task, the energy he infused into the MSBA this past year gives us a great opportunity to provide our members with more services and programs and to provide the legal community with greater resources. We ve unveiled a new website and introduced enhancements to Casemaker, the MSBA s online legal research service available to all members. If you have not tried Casemaker and the excellent tools it provides, give it a try you will be surprised what features are available to you at no cost. Training is available weekly via convenient one-hour webinars. Our members are diverse in age, years of practice and location and yet we share the same mission: The Maine State Bar Association promotes the honor, dignity and professionalism of lawyers, advances the knowledge, skills and interests of its members, and supports the public interest in a fair and effective system of justice. From new members to Life Members, we all share the same view that people with legal problems always fare better when they get advice from a lawyer not a website and that our court system functions better when participants are represented by an attorney. But the MSBA offers much more. Here s what two of our members have to say about the MSBA: Cheryl J. Cutliffe, a new member and associate at Basham & Scott, LLC in Brunswick, joined the MSBA for the benefits, especially Casemaker, the networking opportunities, and most importantly as a way of giving back to the Bar community. Cheryl was recently elected to the Board of Governors representing the New Lawyers Section. Ralph I. Lancaster, Jr., a Life Member and Of Counsel at Pierce Atwood in Portland, joined the MSBA in He said, I joined the MSBA over 50 years ago. It was a great resource then and has only gotten better over the years. It has helped me strengthen my career through invaluable networking and CLE opportunities, and it consistently strives to better the legal profession and improve access to justice in Maine. Please share your feedback and ideas with me, and join me at the 2014 MSBA Summer Meeting. This year s meeting will take place June at the Samoset Resort in Rockport. I look forward to a great year! Congratulations, Diane Dusini! The Maine Law Alumni Association presented Attorney Diane Dusini with the Distinguished Service Award at its Annual Dinner. Diane was recognized for her significant contributions to the legal profession and for her longstanding support of the University of Maine School of Law.. 4 MAINE BAR JOURNAL WINTER 2014

5 Lawrence M. Leonard, M.D. Independent Medical Evaluations for plaintiff or defense We represent several choices in Lawyers Professional Liability Insurance Fellow of Am. Academy of Orthopedic Surgeons Diplomate of Am. Board of Orthopedic Surgery Consultant Staff: Maine Medical Center Courtesy Staff: Mercy Hospital telephone: FEDERAL EMPLOYEE RIGHTS Representing Federal employees in discrimination, retirement, workers compensation, and employment cases in FEDERAL COURT and at all levels involving the EEOC, MSPB, FERS, OPM, OWCP, and FECA Let us tip the scales in your favor when it comes to product selection, experience and service. John F. Lambert, Jr. Samuel K. Rudman Robyn G. March (207) Call Jeff McDonnell, CPCU or Julie Clewley, Professional Liability Program Administrator today for all your Business, Personal, and Professional Insurance WINTER 2014 MAINE BAR JOURNAL 5

6 P. O. BOX 788, AUGUSTA ME Volume 29, Issue No. I WINTER 2014 FOR ADVERTISING, SUBSCRIPTION, OR SUBMISSION INFORMATION, CALL OR , OR FAX EDITOR Kathryn A. Holub ART DIRECTOR Neil F. Cavanaugh ADVERTISING COORDINATOR Lisa A. Pare EDITORIAL ADVISORY COMMITTEE Andre J. Hungerford (Chair), David Bertoni, Elly Burnett, Mathew Caton, Miriam Johnson, Jonathan Mermin, Daniel Murphy, Margaret Smith John F. Loyd, Jr., Esq. Eaton Peabody Brunswick, Maine For most of my clients who want to include the University of Maine in their estate plan, planned giving is the cornerstone of their plan. The University of Maine Foundation staff works in sophisticated partnership with me and my clients to help ensure that my clients charitable intentions are realized in a smooth and efficient process. THE UNIVERSITY OF MAINE FOUNDATION planned giving staff is available to help as you and your clients consider establishing scholarships or other endowed funds. Use the Foundation as a resource to help ensure that your clients goals and wishes will be achieved. To learn more, please contact Director of Planned Giving Sarah McPartland-Good, Esq., or Associate Directors of Planned Giving Daniel Willett or Daniel Williams. Two Alumni Place Orono, Maine or Clearwater Drive, Suite 202 Falmouth, Maine or MSBA BOARD OF GOVERNORS Diane Dusini (President) William D. Robitzek (Immediate Past President) David Levesque (President Elect) Stephen D. Nelson (Vice President) Albert G. Ayre (Treasurer) Frank H. Bishop, Jr. (District 3) Stephen J. Burlock (District 9) Shelley Carter (District 2) Eric N. Columber (District 10) Cheryl Cutliffe (New Lawyers) Roberta de Araujo (District 6) Marcia DeGeer (District 4) Kate Debevoise (Public Service Sector) Susan B. Driscoll (District 1) Peter C. Felmly (District 3) Jason R. Heath (District 8) Courtney Homan (District 3) Daniel Nuzzi (District 5) Jon Plourde (District 11) Warren C. Shay (District 7) Lendall L. Smith (In-House Counsel) STAFF DIRECTORS Executive: Angela P. Weston Administration & Finance: Lisa A. Pare CLE: Linda M. Morin-Pasco LRS: Penny Hilton Communications: Kathryn A. Holub Membership Services: Heather L.S. Seavey Production & Design: Neil F. Cavanaugh Maine Bar Journal (ISSN ) is published four times yearly by the Maine State Bar Association, 124 State Street, Augusta ME Subscription price is $18 per year to MSBA members as part of MSBA dues, $60 per year to nonmembers. Send checks and/or subscription address changes to: Subscriptions, MSBA, P. O. Box 788, Augusta ME Maine Bar Journal is indexed by both the Index to Legal Periodicals and the Current law Index/Legal Resources Index- Selected. Maine Bar Journal articles and materials are also available to MSBA members at org and to subscribers of the Casemaker and Westlaw computer legal research services. Views and opinions expressed in articles are the authors own. Authors are solely responsible for the accuracy of all citations and quotations. No portion of the Maine Bar Journal may be reproduced without the express written consent of the editor. Postmaster: send Form 3579 for address corrections. Periodicals postage paid at Augusta ME All rights reserved. Copyright 2014 Maine State Bar Association 6 MAINE BAR JOURNAL WINTER 2014

7 Pro Bono Maine The Maine Bar Foundation: A Snapshot Of The Past, And A Peek At The Future by Diana Scully A lot is percolating at the Maine Bar Foundation! We are pleased to have the opportunity to share what is happening with readers of the Maine Bar Journal. How We Got Started. Let s start at the beginning. The Maine State Bar Association established the Maine Bar Foundation more than 30 years ago. On December 19, 1983, Phyllis Givertz called to order the organizational meeting at the Roma Restaurant in Portland. Others present were Sumner Bernstein, Hugh Calkins, Hon. Howard Dana, Duane Fitzgerald, Hon. Joseph Jabar, John Kelly, Hon. Francis Marsano, Robert Perkins, Gerald Petruccelli, Judy Potter, Mary Schendel, Hon. Sidney Wernick, and L. Kinvin Wroth. Hon. J. David Kennedy, then Director of Pine Tree Legal Assistance, attended as a guest. The minutes of this meeting describe the charge of the Maine Bar Foundation as generally to support projects for the improvement of the legal profession and administration of justice. The Foundation s only program at the beginning was the Volunteer Lawyers Project. In 1985, the Foundation launched Maine s IOLTA (Interest on Lawyers Trust Accounts) Program. Our Mission. In keeping with the spirit of the 1983 organizational meeting, the Foundation s mission is to facilitate the due administration of justice by promoting the provision of legal services to the poor, supporting legal and law-related education and engaging in activities intended to enhance the legal profession s ability to serve the public throughout the State of Maine. In the words of Foundation Director John Geismar (Norman Hanson and DeTroy): The Maine Bar Foundation is the statewide organization at the soul and core of the bar of the state. We want to be certain we have a good legal community for all. The Foundation is one way to see that this happens. What We Do Today. Today the Foundation continues to manage Maine s IOLTA Program, which provides annual operating funds to six core providers of civil legal aid for low-income and vulnerable Mainers: Cumberland Legal Aid Clinic at the University of Maine Law School, Immigrant Legal Advocacy Project, Legal Services for the Elderly, Maine Equal Justice Partners, Pine Tree Legal Assistance, and the Volunteer Lawyers Project. The Foundation manages charitable giving for civil legal aid through the: Campaign for Justice, recognized nationally for its successful fund-raising within Maine s Bar for the six core providers; Frank M. Coffin Family Law Fellowship, funded by 15 law firms to pay for two young lawyers each year at Pine Tree Legal Assistance; and, ESO Endowment, which supports important work in Downeast Maine. We also manage the Loan Repayment Assistance Program, which helps civil legal aid attorneys with law school loans. Twenty-six attorneys from throughout Maine serve on the Foundation s Board of Directors. David Pierson (Eaton Peabody) is the 2014 president, Sally Mills (Hale Hamlin) will be the 2015 president, and Barbara Raimondi (Trafton and Matzen) was the 2013 president. The Foundation has three full-time staff, including the executive director. In addition, we provide staffing and administrative support to the Campaign for Justice, Justice Action Group, and Maine Civil Legal Services Fund Commission. Challenges. Among the challenges facing Maine s civil legal aid system are the following: Demographic Challenges. The population is declining in many of Maine s rural areas, which makes access to services more difficult for the remaining residents. Maine is the oldest state in the nation by median age, so the number of elders needing help is growing. More immigrants are coming to Maine and many need help achieving security in their new home. WINTER 2014 MAINE BAR JOURNAL 7

8 Less Money. Funding for civil legal aid has been declining on multiple fronts. With decreased and stagnating interest rates, there has been a precipitous drop in IOLTA funding for the core legal services providers from around $1.4 million in 2009 to just half as much in Funding available for the core providers from the Maine Civil Legal Services Fund also has declined, as have federal funds available for these services. In the words of Foundation President David Pierson: The elephant in the room is that there is not enough money. More Need. At the same time there is less money, there is greater need. According to Mary McClymont, President of the Public Welfare Foundation, 80 percent of serious legal needs of low-income people go unmet. In the words of 2013 Foundation Director Jay McCloskey (McCloskey, Mina and Cunniff): The need for legal services is growing astronomically because of the litigious nature of our society. The legal system is complicated. Courts are crowded. People without lawyers get short shrift. Infrastructure. Individually and collectively, the core providers of civil legal aid have done a remarkable job of doing more with less. Their creativity and dedication are cause for celebration. However, after cutting administrative fat and collaborating to the maximum extent possible, continuing reductions in funding have begun to cut into the bone. Foundation Director Sarah Coburn (Verrill Dana) describes this using some different words: Legal services organizations are held together by string and bubble gum. Everything is cobbled together. Understanding Importance of Civil Legal Aid. Foundation Director Michelle Robert (Maine Department of Attorney General) points out that it is hard for people to understand why access to civil legal aid is so important: Access to legal services is not automatically understood by many. They do not recognize that this is all about people s most basic needs. Again, in the words of Mary McClymont of the Public Welfare Foundation: Imagine, your spouse abuses you and your children A bank is about to foreclose on your home You are a wounded veteran struggling to obtain government benefits You think someone will say, If you can t afford a lawyer, one will be provided for you. But that constitutional guarantee does not apply to people fighting civil injustices essential matters of personal safety, economic security and family support that can threaten basic survival. Foundation s 2014 Action Steps. The Foundation s directors and staff have been working hard to meet these challenges head-on. They have identified action steps for the coming year and beyond: Update the Foundation s message to emphasize the importance of civil legal aid. Make sure attorneys understand how they currently support civil legal aid in Maine and thank them. Assess, strengthen and coordinate various development initiatives. Shore up IOLTA by: Emphasizing why where attorneys bank is so important, and Recognizing and thanking banks that pay higher IOLTA interest rates. Build relationships with the philanthropic community with the goal of increasing potential grant opportunities to support civil legal aid. Can Do! As the Foundation s executive director since June 2013, I greatly appreciate the strong foundation my predecessor Calien Lewis helped to build over her 16-year career. I also feel blessed to work with such an illustrious Board of Directors, described so aptly by Barbara Raimondi: We have extraordinarily talented and capable people on the Board. The Foundation s directors have a can do attitude that is contagious and energizing. For example: David Pierson wants the Foundation to make a difference in resources available for civil legal aid: The idea that the universe of potential contributors is limited is wrong.[the Foundation] should show the path to increased resources. Sally Mills believes we have a window of opportunity to make things happen: Don t we have a duty to make [the Foundation] more robust? There is a window of opportunity NOW...Don t miss this! Sarah Coburn encourages us to gear up for change: Be ready for real, bold change. It takes a lot of energy! We ll be back with more news from the Maine Bar Foundation in future issues of the Maine Bar Journal. As noted at the beginning of this column, a lot is percolating! Diana Scully has been executive director of the Maine Bar Foundation since June She holds a B.A. from Wellesley College and M.S.W. from the University of Michigan. Previously, Diana worked in Washington, D.C. as director of state services, National Association of States United for Aging and Disabilities; operated her firm Vantage Point, consulting with more than 60 Maine clients; served as executive director of the Maine Indian Tribal-State Commission; was appointed to various positions in Maine state government; and was a Peace Corps community organizer in the Philippines. Diana may be reached at or For more information about the Maine Bar Foundation, visit 8 MAINE BAR JOURNAL WINTER 2014


10 The Maine State Bar Association & The Maine Bar Foundation Thank the following Banking Partners Prime Partners Auburn Savings Bank, FSB Bar Harbor Bank and Trust Company First Federal Savings & Loan Association of Bath Katahdin Trust Company Kennebec Savings Bank Machias Savings Bank Maine Savings Federal Credit Union Rockland Savings Bank, FSB The County Federal Credit Union Because of their continued support, the following organizations received grant funds totaling more than $687,621 in 2013: Pine Tree Legal Assistance Maine Volunteer Lawyers Project Maine Equal Justice Partners Legal Services for the Elderly Immigrant Legal Advocacy Project Cumberland Legal Aid Clinic 10 MAINE BAR JOURNAL WINTER 2014

11 Health Care Reform In America: The Good, The Bad And The Ugly by Jerry W. Taylor Introduction The health care and insurance industries, and all of us as health care consumers, are experiencing the birth pangs of the difficult roll out of the Patient Protection and Affordable Care Act (PPACA). The natural inclination is to view the PPACA as unique in its scope, impact and political implications. But such a view is myopic, for the road to health care reform in America is well traveled. Every American presidential administration following the end of World War II has, to some extent, proposed or supported changes to the health care system in this country. And many of those previous reform proposals hold similarities to some provisions in the PPACA. This is not the first time the nation has debated controversial health care reform proposals. This is not the first time bitter partisan politics have complicated, and sometimes obfuscated, attempts at reform. Some attempts at health care reform have succeeded and some have failed, and the political process has often been ugly and divisive. Here is a look at some past attempts at health care reform in the modern era: the good, the bad, and the ugly. The Truman Administration ( ) The first attempt at health care reform in the post-war era occurred during the administration of President Harry S. Truman. His predecessor Franklin D. Roosevelt did little to advance the cause, and health care accessibility was one of the few societal needs not addressed in the New Deal programs. There is evidence President Roosevelt intended to pursue some form of health care reform after the end of World War II, but he died before then, in April President Truman recommended to Congress a proposal known as the Wagner-Murray-Dingell bill consisting of nine goals to be achieved over a tenyear period. Universal health insurance coverage, administered and paid for by a National Health Insurance Board, was third down the list of priorities. The first two priorities were increasing the number of medical practitioners primarily doctors and nurses and increasing hospital expansion and construction. Opponents of the proposal, including the American Medical Association (AMA), decried it as socialized medicine and the bill died in Congress. Truman made a second effort at health care reform in 1948, following his re-election, but the outbreak of the Korean War proved to be the death knell of the proposal. The Truman administration s efforts were not all for naught, however; the second priority of Wagner-Murray-Dingell, increasing the number of hospitals in the U.S., was achieved. The Hospital Survey and Construction Act of 1946 (commonly known as the Hill-Burton Act), was passed by Congress in The law provided federal grants and loans to build, expand and modernize hospitals. In the first six months of the program, grants were approved for 347 hospital projects, adding 11,346 new hospital beds at a cost to the federal government of $160,734, In today s dollars, adjusted for inflation, that amounts to more than $1.3 billion. 2 The consequences of the rapid and unregulated growth in health care facilities would require future legislation, during the Ford administration, to bring it under control. The Eisenhower Administration ( ) With its focus on the emerging Cold War, the Eisenhower administration supported only limited health care reform proposals. In 1956 the Military Medicare program was enacted, providing payment for health care services for military dependents. 3 The administration supported the Forand bill, which would provide health insurance for Social Security beneficiaries. Despite support from the AFL-CIO, the Forand bill never gained much traction in Congress. The Kennedy Administration ( ) The Kennedy administration pursued a more modest form of health care coverage than that proposed in the Wagner- Murray-Dingell bill. Under the King- Anderson bill coverage would be limited to those 65 years of age and older, and be part of the Social Security benefits package. In so doing, Kennedy laid additional blocks to the foundation of what would ultimately become Medicare. Frustrated by the efforts of special interests to kill the proposal, President Kennedy took his case on the road directly to the public. On May 20, 1962, a series of 33 public rallies were simultaneously held in various parts of the country. The President made a personal appearance and a nationally televised speech at the largest of those Madison Square Garden in New York City with 17,500 attendees inside and a crowd estimated WINTER 2014 MAINE BAR JOURNAL 11

12 at 2,500 in standing-room-only outside the arena. 4 In a speech at the rally, President Kennedy confidently predicted the King-Anderson bill would pass Congress this year, or as inevitably as the tide comes in, next year. President Kennedy was wrong. Opposed by the powerful AMA and with help from conservative Democrat Wilbur Mills, Chairman of the House Ways and Means Committee, the bill was defeated in Committee. President Kennedy did not live to see the proposal s chances through the following Congress, and the mantel was passed to Lyndon Johnson. The Johnson Administration ( ) Lyndon B. Johnson won a landslide victory to be elected to a full term as president in November The concurrent Senate and House of Representatives races were virtual Democratic sweeps, giving the Democrats a supermajority in both houses, 5 and President Johnson a receptive body for the extensive social reforms he dubbed the Great Society. Despite continued vocal opposition from the AMA and some conservative Republicans, 6 the Medicare and Medicaid legislation steamrolled through Congress. It was introduced in the House Ways and Means Committee in March of 1965, gained final approval by the Senate on July 28, 1965 and was signed into law by President Johnson on July 30, As originally enacted, the Social Security Amendments of 1965 provided health care coverage to those 65 years of age and older, and to the poor, blind and disabled. It covered health care services provided by hospitals, physicians, nursing facilities and home care providers. As of 2012, there were approximately 40.5 million Medicare beneficiaries. 8 As of 2009, there were approximately 62 million Medicaid beneficiaries. 9 It would not be long before proposals for health coverage for those not covered under Medicare/Medicaid would surface. The Nixon Administration ( ) In 1971, the Nixon administration proposed the National Health Insurance 12 MAINE BAR JOURNAL WINTER 2014 Standard Act (NHISA). The proposal called for government-prescribed minimal levels of insurance coverage, mandated to be provided through employers and financed by payment of premiums by employers and employees. This plan would maintain competition between private insurers and expand coverage. The NHISA would also provide government subsidies for premiums for certain employees. A competing proposal was advanced by a familiar Nixon nemesis, the Kennedys; this time it was Sen. Edward M. Kennedy of Massachusetts. Kennedy introduced the Health Security Act, calling for a single federal payor, providing comprehensive health coverage for nearly all Americans. Although the Health Security Act never advanced far in Congress, it was the beginning of a career-long effort by Sen. Kennedy at major health care reform. 10 While the NHISA did not pass, Nixon was successful in gaining passage of the Health Maintenance Organization Act of 1973, which laid some of the groundwork for managed care. Also enacted during Nixon s term of office were relatively minor amendments to the Medicare program, expanding coverage to certain recipients of Social Security disability benefits and to individuals with end-stage renal disease. 11 The Ford Administration ( ) The abbreviated Ford presidency was consumed by healing the nation s post- Watergate wounds ( our long national nightmare, as President Ford termed it), and fighting runaway domestic inflation. The unrestrained and federally incentivized growth of health care facilites, ushered in by Hill-Burton in 1946, and exacerbated by the infusion of vast federal funds into the health care payment system, were seen as contributing causes to medical inflation. The National Health Planning and Resources Development Act of 1974 (HPRDA) was an effort to reign in escalating health care costs. The HPRDA called for local health resource planning within federally designated health planning areas across the country. The goals were to reduce and avoid unnecessary duplication of facilities and services, provide for a rational allocation of needed health care services, and facilitate equal access to quality care at reasonable cost. The HPRDA essentially mandated Certificate of Need (CON) programs in the states. Although the CON mandate of the HPRDA was repealed in 1986, 36 states, including Tennessee, and the District of Columbia operate CON programs today. 12 The Carter Administration ( ) Jimmy Carter campaigned for president calling for national health care insurance with universal coverage, and as president he went to work to prepare a legislative proposal for the same. The American Hospital Association endorsed the concept in principle, but had reservations about any system that took a universal, one size fits all approach. The details of President Carter s plan never received much of a congressional or public audience, as a deep recession and other economic issues took priority. Other than the tepid support of the AMA, little other health care industry or public support was apparent. President Carter later maintained he had strong support from the chairmen of the House and Senate committees with responsibility for health care legislation, and could have succeeded in passing his proposal had it not been for the abrupt withdrawal of support by one of those chairmen. Ironically, the vacillating Senate committee chairman was none other than Sen. Edward M. Kennedy. 13 (Senator Kennedy was to run against Carter for the Democratic presidential nomination in 1980.) The Reagan Administration ( ) In his inaugural address, after lamenting the consequences of excessive government borrowing and deficit spending, President Reagan declared: In this current crisis, government is not the solution to our problem. Government is the problem. There were no administration proposals for new government run or administered health care programs under President Reagan. During President Reagan s term of office several new laws were enacted, aimed primarily at reducing the growth

13 in federal spending on health care, and improving efficiencies. This was to be accomplished by changing Medicare reimbursement methodologies in most cases reducing reimbursement to hospitals and physicians and stepping up anti-fraud measures. But the Reagan Administration also advanced through Congress the first major expansion of Medicare benefits: the Medicare Catastrophic Coverage Act of 1988 (MCCA). The law expanded Medicare coverage for outpatient drugs, put a ceiling on out of pocket co-pays for hospital and physician services, and modestly expanded payments for long term care. The program was to be funded entirely by Medicare beneficiaries through increased premiums, and a surtax on wealthier beneficiaries based on income. The George H.W. Bush Administration ( ) President George H.W. Bush inherited a political catastrophe in the Medicare Catastrophic Coverage Act of Among the elderly there was widespread disappointment over the level of expanded benefits and strong resentment over having to pay higher premiums and taxes to fund it. 14 These sentiments led to a senior revolt against the law, and in 1989 just 17 months after it was enacted a bipartisan effort in Congress repealed most of the MCCA. President Bush s agenda for health care legislation consisted of additional measures to reduce the growth of federal health care spending and reduce fraud and abuse in the Medicare and Medicaid programs. Notable among the enactments in the Omnibus Budget Reconciliation Act of 1989 (OBRA) were changes in Medicare physician payments from a charge-based system to the Resource Based Relative Value Scale (RBRVS), and a prohibition on physician self-referrals for clinical laboratory services (Stark I). The Clinton Administration ( ) Bill Clinton was the first Democrat elected president in 12 years, and his administration wasted little time in proposing major health care reforms. After the release of a report by a highly controversial task force headed by First Lady Hillary Clinton, President Clinton sent the American Health Security Act of 1993 (AHSA) to Congress. It proposed to provide affordable health insurance for all through a concept called managed competition. Health insurance coverage would be provided through private insurers competing for customers in a highly regulated market, overseen and coordinated by regional health alliances to be established in each state. All health plans would be required to provide a minimum level of benefits. Employers would be required to provide insurance coverage for their employees and pay 80 percent of the premium. 15 The AHSA was opposed by much of the health care industry and the health insurance industry. It was subjected to bitter partisanship in Congress, with even Democratic lawmakers split and some offering alternative or compromise plans. By September 1994, the proposal was declared dead by Senate Majority Leader George Mitchell. 16 Other important health care reform measures were enacted during President Clinton s term of office. 17 Among the notable reforms was The Health Insurance Portability and Accountability Act (HIPAA), which greatly improved the continuity or portability of health insurance plans, and authorized the promulgation of regulations protecting the privacy of health records, now the hallmark of HIPAA. The Stark physician self-referral law was significantly expanded to cover additional clinical services, and extended to cover Medicaid as well as Medicare (Stark II). The State Children s Health Insurance Program (SCHIP) was created, providing federal matching funds for pooled risk health insurance coverage for families of modest income with children. The George W. Bush Administration ( ) President George W. Bush bore the burden of being President during the tragedy of 9/11. Much of his presidency, especially his first term, was consumed with the aftermath of that and the war on terrorism at home and abroad. It is understandable that health care reform was not at the top of his agenda for many practical as well as political reasons. President Bush s domestic legacy does, however, include one of the largest expansions of Medicare in the program s history. The Medicare Drug Improvement and Modernization Act of 2003 (MMA) made numerous changes to the Medicare program, the most important of which is the prescription drug coverage benefit, created as Medicare Part D. The MMA allows for voluntary participation by Medicare enrollees, and is available only through private insurers offering Medicare Advantage plans. The most controversial aspect of the Part D prescription drug benefit is the so-called doughnut hole, a coverage gap requiring the beneficiary to pay 100 percent of drug costs when the cumulative annual cost of drugs is between approximately $2,200-$5, The MMA passed by narrow margins in both the House and the Senate. In each chamber, the vote was almost straight down party lines, with Republicans controlling the Yea vote. 19 The Part D benefit is still confusing and frustrating to many Medicare beneficiaries. The Obama Administration (2009-present) It came as little surprise that President Obama made health care reform one of his first priorities: he campaigned on the promise of sweeping changes to the health care system in an effort to reduce costs and make coverage available to most Americans. He sent a major reform bill to Congress within six months of the inauguration. A painful political process ensued. Bitter partisan divisiveness, debates over the public option health plan, public misinformation (e.g., allegations the legislation provided for death panels ), and charges of socialized medicine filled the airwaves, Internet and print media. After much political maneuvering and intrigue rarely seen even in Washington, the legislation gained the final necessary House of Representatives approval on March 21, The Patient Protection and Affordable Care Act (PPACA) was signed into law on March 23, On June 28, 2012, the United States Supreme Court issued its ruling in National Federation of Independent Business v. Sebelius, 567 U.S. (2012). In a creatively crafted opinion, Chief Justice Roberts wrote for the majority upholding the constitutionality of WINTER 2014 MAINE BAR JOURNAL 13

14 all but one of the major provisions of the ACA. The Court ruled: (1) the individual mandate is a permissible exercise of Congress taxing power and thus constitutional, and (2) the Medicaid expansion cram down provision (essentially requiring all states to expand Medicaid coverage to all otherwise eligible individuals with incomes up to 133 percent of the federal poverty level) is an impermissible exercise of Congressional power and thus unconstitutional. In its irreducible essence, the ACA provides for: (1) a mandate for large employers to provide health insurance coverage for its employees; (2) a mandate for virtually all citizens to have health insurance coverage through an employer sponsored plan, a government plan, or an individual plan; (3) creation of federal and/or state health care exchanges to facilitate obtaining health care insurance; (4) federal financial subsidies for health care insurance for individuals meeting low income standards; (5) a mandate that all plans provide a certain minimal level of essential benefits; and (6) prohibitions against denials of coverage based on pre-existing conditions and against lifetime benefit limits. Conclusion The PPACA is in some respects a conglomeration of some of the pieces of past proposals for major health care reform. The provision of health insurance coverage through private insurers instead of directly through the government, employer mandated health insurance, the creation of state, regional or national clearinghouses for insurance, federal subsidies for low-income individuals, and guaranteed eligibility have all been proposed in previous attempts at reform. Partisan divisiveness, bitter congressional fights, grass roots campaigns and political intrigue have been ubiquitous characteristics of health care reform efforts. But in the end, the democratic process has worked. Legislation deemed not in the public interest has been defeated in Congress, and enacted legislation that proved to be unpopular or unworkable has been repealed. When the final chapter on the efficacy of the PPACA is written, it is hoped history will record that the American system worked yet again the good, the bad, and the ugly. Jerry W. Taylor is a Member of Stites & Harbison, PLLC, located in the firm s Nashville, Tenn., office. His practice focuses on health care law, business transactions and commercial loan financing. He has practiced health care law in both private practice and for government regulatory agencies. He is a member of the Nashville Bar Association, Tennessee Bar Association and the American Health Lawyers Association. 1. Hospital-Aid Plan Has 347 Projects, N.Y. TIMES, July 2, arrepim, Mathematical and Financial Calculators, 3. Hospitals & Health Networks, American Presidents and Health Reform: A Chronology, H&HN MAGAZINE (Feb. 2009), available at articledisplay.jsp?dcrpath=hhnmag/article/ data/02feb2009/0902hhn_coverstory_ WebExtra&domain=HHNMAG. 4. Kennedy Exhorts Public To Support Medical Care Bill, N.Y. TIMES, May 21, Following the elections the Democrats held close to a 3/4 majority in the Senate and approximately a 2/3 majority in the House of Representatives. Social Security Admin., Vote Tallies for Passage of Medicare in 1965, gov/history/tally65.html. 6. Among the notables opposing the Medicare legislation were Ronald Reagan, Bob Dole, George H.W. Bush, and Barry Goldwater. Igor Volsky, Flashback: Republicans Opposed Medicare in 1960s by Warning of Rationing Socialized Medicine, ThinkProgress (July 29, 2009), medicare-44/. 7. The vote tally was in the Senate, and in the House. Social Security Admin., supra note The Kaiser Foundation, Total Number of Medicare Beneficiaries (2012), medicare/state-indicator/total-medicare-beneficiaries/. 9. Census Bureau, The 2012 Statistical Abstract, cats/health_nutrition/medicare_medicaid.html. According to the Centers for Medicare and Medicaid Services (CMS), at any one time approximately 15% of the total Medicaid population is also enrolled in Medicare Terrence Jeffrey, Medicaid and Medicare Enrollees Now Outnumber Full-Time Private Sector Workers, cnsnews. com (Oct. 12, 2012), article/medicaid-and-medicare-enrollees-nowoutnumber-full-time-private-sector-workers. 10. Elizabeth Goodridge & Sarah Arnquist, A History of Overhauling Health Care, N.Y. TIMES (2010), interactive/2009/07/19/us/politics/ _ HEALTH_TIMELINE.html?_r= H&HN, supra note American Health Planning Assoc., Certificate of Public Need (2009), 13. Christine Delargy, Jimmy Carter: We Could Have Had Health Care Reform in the 1970s, CBS News (Dec. 1, 2010), com/ _ / jimmy-carter-we-could-have-had-health-carereform-in-1970s/. 14. See Retreat in Congress; The Catastrophic-Care Debacle-A Special Report; How the New Medicare Law Fell on Hard Times in a Hurry, Special to N.Y. Times, October 9, See Goodridge & Arnquist, supra note Boundless, The Health-Care Plan of 1993, the-challenges-of-globalization-and-the-comingcentury-after-1989/the-clinton-administration/ the-health-care-plan-of-1993/. 17. See H&HN, supra note, H.R. 1 (108th): Medicare Prescription Drug, Improvement, and Modernization Act of 2003,; Ellen Shaffer, The Medicare Prescription Drug Improvement and Modernization Act, Our Bodies, Ourselves Health Resource Center (rev. June 2004), org/book/companion.asp?id=26&compid= The House vote was 220 Yea (204 R, 16 D)-215 Nay (25 R, 189 D, 1 I). The Senate vote was 54 Yea (42 R, 11 D, 1 I)-44 Nay (9 R, 35 D, supra note The final vote tally was Senate Yea 60 (58 D, 2 I)-Nay 39 (0 D, 39 R); House Yea 219 (219 D, 0 R)- Nay 212 (34 D, 178 R)., supra note 18. An earlier version of this article was published in the Dec. 13/Jan. 14 edition of the Nashville Bar Journal. It was updated by the author for the Maine Bar Journal and is printed here with the permission of the Nashville Bar Association. 14 MAINE BAR JOURNAL WINTER 2014

15 Winding Down Your Practice? Image copyright jwblinn. Used under license from Are you planning for retirement or winding down your practice for other reasons? Are you interested in connecting with a new lawyer who could take over your practice? The MSBA may be able to help. For more information, contact Bill Robitzek who is coordinating the MSBA efforts on succession planning. WINTER 2014 MAINE BAR JOURNAL 15

16 N L S I t is a great honor to be the new chair of the New Lawyers Section of the MSBA. This year, I am looking forward to bringing back some of our annual events as well as introducing some new initiatives. I am joined by a fantastic new NLS Board of Governors that includes: Melanie Stevens, Emily Green, Marie Mueller, Kaitlyn Roy, Joe Lewis, Joy Trueworthy, Tiffany Pearson-Bond, Jeffrey Russell, Matt Warner, Tara Rich, Abigail Varga, Cheryl Cutliffe, and Ex-Officio Chair Heidi Pushard was yet another active and successful year for the Section. We hope you will join us in making 2014 even better. Last year, the NLS hosted a half-day CLE titled Effective and Ethical Discovery. Experienced trial attorneys James Bowie, Thomas Cox, Gary Goldberg, and Allan Kelley, as well as Judge Andre Janelle and Justice M. Michaela Murphy spoke on the latest trends with e-discovery, the effective use of discovery, and the potential ethical pitfalls of the discovery process. Many thanks to all those who attended and presented at this very useful CLE. The NLS also recently kick-started its monthly brown bag lunch series, which provides an informal platform for new lawyers to network, discuss Maine s latest legal trends, and get tips from seasoned attorneys and judges on how to sharpen their legal skills. On February 28, 2014, we will be joined by Attorney General Janet Mills at the Augusta Judicial Center. Bring your brown bag lunch and burning questions! In addition to our annual CLE and monthly brown bag lunches, the NLS Professional Development Committee anticipates the launch of a mentoring program to connect new lawyers with attorneys in their field of choice. The NLS is also dedicated to giving back to the community. We are proud to announce that our second annual professional clothing drive, Suited for Success, for students at the Penobscot Job Corps, a no-cost technical training center in Bangor, was a huge success. We were overwhelmed by the bar s generosity, and with your help, we proudly delivered two carloads of donated clothing. The Penobscot Job Corps was thrilled with the donations and reported students were not only wearing the business clothes for job interviews, but were also strutting their new duds for their prom! Thank you to everyone who made donations. We look forward to another successful clothing drive this year. Additionally, the Section solicited dozens of donations from local vendors for the section s Jazzed for Justice silent auction, raising hundreds of dollars for the Campaign for Justice. Our Community Service Committee is already brainstorming new ways to give back to our community in the upcoming year, which may include partnering with Habitat for Humanity and participating in the Susan G. Komen Race for the Cure. The NLS also continues to pursue ways to connect lawyers throughout the state. Last year, the NLS hosted a special social and networking event for all MSBA members and their families at a Sea Dogs game. The event was very well attended, and we are in discussions with the Sea Dogs event manager to make this an annual event. Additionally, the Section will continue to host its MSBA New Lawyers Section monthly networking happy hour, which will take place the third Wednesday of every month. We look forward to another great year and hope you will join us at one of our upcoming events listed below. Brown Bag Lunch with Attorney General Janet Mills. Friday, Feb. 28, at 12:00 p.m., at the Augusta Judicial Center, 65 Stone Street, Augusta. To register, please The Affordable Health Care Act: Beyond the Basics, co-sponsored by the NLS, Feb. 26, from 4:45-7:00 p.m., Hilton Garden Inn, Freeport. For details and to register, go to Monthly NLS Happy Hour, every third Wednesday of the month at 6:30 p.m. The next happy hour will take place on Wednesday, March 19 at 6:30 p.m. at Bull Feeney s (375 Fore St., Portland). If you are interested in becoming involved with the NLS, it s never too late. We are always looking for volunteers and would be happy to have you join us for our monthly meetings on the third Wednesday of every month. The location of the meetings changes, so please me at for details. For more information about the NLS, do not hesitate to contact me at or find us through the MSBA LinkedIn page. Caroline Y. Jova is the the second-year Frank M. Coffin Family Law Fellow Coffin Fellow at Pine Tree Legal Assistance where she represents low-income parties in family law matters. She is a graduate of George Washington University Law School and 2009 magna cum laude graduate of New York University, where she earned her B.A. in History and Romance Languages as a Martin Luther King Jr. Scholar. Ms. Jova was an Equal Justice America Summer 2011 Fellow at the Legal Aid Society in New York City, and an extern for the Department of Justice, Civil Rights Division. While in law school, she was a student advocate for the Immigration Clinic and Health Rights Law Clinic. Ms. Jova is a native Spanish speaker. 16 MAINE BAR JOURNAL WINTER 2014 Image copyright Tim Yuan, Used under license from

17 COPYRIGHT & TRADEMARK TRADEMARK B & B COPYRIGHT Robert E. Mittel Rufus E. Brown, Esq. MITTEL A SEN, LLC 85 Exchange Street Portland, ME (207) BROWN & BURKE 85 Exchange 152 Spring Street, Suite Street201 P.O. Box Portland, 7530 Portland, Maine Maine Telephone: Fax: NO FIRM IS TOO SMALL FOR A COMPREHENSIVE AND AFFORDABLE RETIREMENT PLAN. The ABA RETIREMENT FUNDS PROGRAM has provided retirement plan services to firms of all sizes even solo practitioners since We believe today, as we did then, that the unique needs of the legal community are best served by a retirement Program built exclusively to benefit its members. Call an ABA Retirement Funds Program Regional Representative today! (866) I The Program is available through The Maine State Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another s products and services. CN WINTER 2014 MAINE BAR JOURNAL 17

18 Remarks of Judge Kermit V. Lipez, United States Court of Appeals for the First Circuit, for His Portrait Ceremony at the Maine Supreme Judicial Court November 15, 2013 Kermit V. Lipez stepped down from the Maine Supreme Judicial Court in 1998 to serve on the United States Court of Appeals for the First Circuit. In November he returned to 205 Newbury Street in Portland for the unveiling of his portrait. The ceremony began with remarks by Chief Justice Saufley, former Chief Justice Wathen, and Judge Lipez s former law clerk Ali Chardon. Judge Lipez then spoke. Introduction May it please the court. I wish to begin by thanking Chief Justice Saufley, former Chief Justice Wathen and Ali Chardon for their kind and generous remarks. I also wish to thank you, the members of the Supreme Judicial Court, for the privilege of having this portrait ceremony. I know how busy you are, particularly on the eve of a difficult court session. It is good of you to take the time to make this occasion possible. I also wish to thank my federal and state colleagues who are here today. They are a very talented and dedicated group of public servants. It has been and continues to be a privilege to work with them. I am grateful to them for taking time from their busy schedules to be here. I am also honored by the presence of former Congressman Tom Allen. Tom has been a great public servant in numerous capacities, and a good friend over the years. 18 MAINE BAR JOURNAL WINTER 2014 There are many others to thank as well. First and foremost, I wish to thank my wife Nancy, our daughters Julia and Erica, and our son-in-law Nolan Reichl, for their love and support, which makes everything else possible. I also want to thank our six-month-old grandson Theo for already bringing so much happiness to our lives. Although we thought that he might make his first court appearance today, we decided that he was probably not ready to comply with the order of the court. I want to thank my law clerks who commissioned the portrait, and, once again, Ali Chardon, who led the law clerk effort and who has now so ably presented the portrait to two courts. As you know, working with bright, enthusiastic, interesting young lawyers is one of the privileges of our jobs. My law clerks and I have developed bonds of affection and respect that extend beyond the clerkship year. It is always a treat to spend time with them. I am grateful that a number of them are here today. My permanent law clerk, Barbara Riegelhaupt, led the in-chambers planning for this event, supported by my legal assistant Anita Germani. I am grateful to them for that effort and for all of the indispensable work that they do so well. They

19 are also special people whose company I enjoy. I also wish to thank Amanda Martin, Chief Justice Saufley's legal assistant, who worked closely with Barbara and Anita in planning this event. I had the pleasure of working with Amanda when I was on the Superior Court, so I know how lucky the Chief is to have her support. Of course, there would be no event without a portrait, and the gifted hand of the artist Burgess Dole. As Burgess knows, I had some misgivings about the portrait process. Sensing this unease, she vowed to make the experience a positive one for me, and she did just that, with her upbeat attitude and openness to suggestions. I enjoyed working with her. And, hoping it is okay for the subject to say so, I like the portrait very much. Thank you, Burgess, for your hard work and your talent. I also want to acknowledge the special role that Chief Justice Saufley played in making today's event, and the portrait itself, possible. Although the original of the portrait was prepared for a First Circuit courtroom in Boston, I wanted the setting for the portrait to be this courtroom in Portland. So Burgess agreed to come to Portland to take many pictures here if the Chief would permit us to do so. She agreed readily, even though the day we chose for the pictures was Veteran's Day 2011, when the courthouse would be closed and the Chief herself, in the absence of any custodian, would have to unlock the doors. When I protested the imposition, the Chief said no problem. She would be here working anyhow. That figured. When we arrived at the courthouse door a bit late, there was the Chief, reading a document, well-prepared for our tardiness. Burgess did take those pictures, and I chose the one reflected in the portrait, standing next to the bench where the Court sits. I have an odd way of expressing my gratitude to the Chief for all of this help. First, I asked her to speak at my portrait ceremony at the First Circuit in Boston in June She did a predictably wonderful job, prompting a few proper Bostonians to observe that they never thought a chief justice could be so funny. Thinking of the Chief and her predecessor, I said it was a job requirement in Maine. Now today the Chief has had to speak at another portrait ceremony, proving again the old adage that no good deed goes unpunished. I thank the Chief for these most recent kindnesses and many others over the years. The Court I have a sentimental attachment to this courtroom. I had many trials and assorted proceedings here during my nine years on the Superior Court, including those memorable calls of the docket at the beginning of a criminal term, when defense attorneys filled the rows of seats and stood against the back and side walls of the courtroom as I called the 200 or so cases. Then I had four years of oral arguments here as a member of the Supreme Judicial Court sitting as the Law Court. This place evokes cherished memories. There is a particular cast to my memories of this Court. Although I enjoyed the day to day work on the Court reading briefs, participating in the arguments, writing opinions, commenting on the draft opinions of colleagues, sharing in the administrative responsibilities of the Court I found my greatest joy in the company of my colleagues. When lawyers would ask me, as they often did, if I minded the isolation of my job, I had no idea what they were talking about. I never felt isolated. I had colleagues and friends on the court, three of them just down the hall, who entertained, challenged and instructed me in countless ways. They were smart, hard-working, richly experienced and wise. This Court, this great institution, came alive through their presence. I think about all of them with great fondness. Remembering the good times that we had together, and as an expression of gratitude to the colleagues with whom I served, I would like to share briefly with you some of those memories. Chief Justice Wathen Shortly before my first day of work on the Supreme Judicial Court, on a day when Dan was in Portland, he invited me to lunch. What a nice, welcoming gesture I thought. We had pleasant small talk through our meal. Then Dan, still pleasant, with the hint of a smile, got down to business, apparently worried about one of my tendencies. "Kermit," he said, "as the junior judge on the court, you will always speak second and explain your vote right after the assigned judge. That is an advantageous position. Howard Dana will be sorry to give it up. You're a table-setter. But you need to understand something. We don't debate the case. We don't challenge each other. We don't question each other. Just state your position and vote. We work out problems during the writing process. So keep it short." Dan had begun my initiation into the ways of the Court with his gifted leadership style direct, efficient, but always likeable. As you all know, Dan is a great storyteller, and nobody appreciates his stories more than Dan does himself. At many of our post-argument conferences, before we got down to business, Dan, inspired by the argument we had just heard, would regale us with a story that so convulsed him, so reddened his face, that I worried for his well-being. But when he finally finished the story we were all convulsed with laughter. Dan proved to us over and over again that serious work is enhanced, not diminished, by a wicked sense of humor. Justice Roberts David and I had many brown bag lunches together, usually in his chambers, now occupied by Chief Justice Saufley. Prepared by his beloved wife Bunny, his lunches never varied a healthy sandwich, a yogurt, and a small piece of chocolate for dessert a guilty pleasure that he savored. I listened more than I talked during those lunches. David loved the law, found something interesting in every case, and had an astonishing memory. When a case before us triggered memories of a case he had seen during his thirteen years on the Superior Court, as often happened, David would describe the case with his own storyteller's gift, including portions of testimony recounted verbatim questions and answers. With his long years of service on the Superior Court and the Supreme Judicial Court, David was our indispensable institutional memory. Justice Glassman If Caroline had a problem with one of my circulating opinions, she would call me on the telephone from her chambers just down the hallway and say in that memorably deep voice: "Kermit, I have some concerns about your draft opinion. Before I circulate a memo to our colleagues, may I come down to your chambers to talk to you about it?" This polite question was WINTER 2014 MAINE BAR JOURNAL 19

20 not really a question. So Caroline would come down to my chambers for our talk. Sitting at the end of my work table, immediately adjacent to my seat, and leaning forward until her nose almost touched mine, Caroline stared into my eyes with her penetrating gaze and explained her concerns in a fashion that did not encourage disagreement. Fortunately, Caroline was so smart and thoughtful that she was usually right. I never resented those calls from Caroline. Indeed, I welcomed them, knowing that I would learn something valuable from her critique. Caroline was a remarkable talent. Justice Clifford I have to be careful here. I do not want to give the impression that Bob and I did not take our jobs seriously. We definitely did. Nobody worked harder than Bob. But I must acknowledge that our shared passion for the law left ample room for our shared passion for sports, particularly the Red Sox. Whether on the phone or in person, every conversation included some sports talk which, during baseball season, was essential therapy. My years of service on the Court, May 1994 to June 1998, were years of unending frustration for Red Sox fans burdened with the curse of the Bambino playoff misses, playoff wins that led nowhere, the unloading of Roger Clemens in 1997 because, according to General Manager Dan Duquette, he was in the twilight of his career. Bob and I endured all of this together. It was a great comfort to have him close by, particularly since he was more philosophical and forgiving than I was. Indeed, in 2003, even though I was no longer on the Court, I discovered during a conversation with Bob that he was the only person in Red Sox nation who forgave Grady Little for keeping Pedro Martinez in too long against the Yankees in Game 7 of the American League Championship series, with disastrous results. There is definitely something saintly about Bob. Now, of course, three World Series titles later, being a Red Sox fan requires no special courage. The younger generation has it so easy. I am sure that Bob would agree. Justice Rudman Paul was a wonderfully affable colleague, and my most vivid memory of him involves this friendly quality. It was winter. There was a blizzard outside. We were conferring on a case when the telephone rang in the conference room. Dan answered the phone and said that my wife Nancy needed to talk to me. Alarmed, I took the phone. Nancy, who had not been told that we were in the midst of a morning of arguments, reported that our yellow lab Willie had wandered away from the house and had not returned. After agreeing that Nancy and the girls, all home for the day because of the storm, would get in the car and search for Willie, I got off the phone and reported the crisis to my colleagues. Immediately sympathetic, and ever helpful, Paul placed his cupped hand to the side of his mouth and started chanting, "Free Willie, Free Willie." Not wanting to seem unsympathetic, the other justices joined Paul's chant, and the cry of "Free Willie, Free Willie" reverberated through the conference room. It was an impressive and touching display of collegiality. And it helped. Nancy called within an hour to report that they had found Willie shaking and snow-covered, but safe, several neighborhoods away. Willie was now the unofficial mascot of Maine's Supreme Judicial Court. Justice Dana As you know, judges have to leave the political world behind. Since Howard and I were both political junkies, this rule was a hardship for us. We observed it, of course, unless you consider political talk between judges at lunch, in the privacy of their chambers, unrelated to any of their cases, a violation of the rule. We did not. Howard and I often talked politics local, state, federal happy to be free to indulge in such talk with each other. Although Howard and I often had different political views, and our years together on the Court 1994 to 1998 were years of political turmoil in the country, our conversations were always a model of civil discourse. Howard is such a gentleman, so decent to the core, that it could not be otherwise. His company was always a delight. By the way, if Howard did regret losing his favorable position in the conference voting ritual to me, he never said so. As justice number 100 in the history of the Maine Supreme Judicial Court, Howard perhaps understood that he was an historical figure with no cause for complaint. On the other hand, as justice number 101 in that history, I was an anticlimax. Chief Justice Saufley I also lost my position as the junior justice in October 1997, when Justice Saufley arrived to replace Justice Glassman. A court of seven is a small group. Working closely together day after day, learning each other's habits and styles, you become comfortable with a predictable group dynamic. Hence the arrival of a new member is unsettling. There is nothing personal about this unease. It is just the way it is. That unease had a brief life with Justice Saufley. In sports, if I may draw on that world again, they refer to gifted athletes as "naturals" effortlessly great at what they do because it is so basic to their being. Although Justice Saufley and I were only together on the Court for about eight months, it was apparent to all of us that she was a natural great as a judge and a colleague because she just knew how to do it all. Her transition was almost seamless. I say "almost" because, in addition to the regrettable incident described by the Chief, 1 there was one other incident of note. In my day, the junior justice on the Supreme Judicial Court had three special responsibilities: (1) turning on the "lamp of learning" on the credenza across from the justices' conference table at the beginning of a day of arguments; (2) making sure that the door leading from the public hallway to the conference room was locked when the justices entered the courtroom for arguments; and (3) pouring coffee for the other justices during deliberations. I had performed these tasks for three-plus years, enduring endless jokes about my inability to pour coffee without spilling it. Now it was Justice Saufley's turn to pour. She was more than ready. As we sat down for deliberations after Justice Saufley's first oral argument, she promptly disappeared into the small room behind the conference room to get the coffee pot, suspiciously eager to make a good first impression. She then re-emerged, coffee pot in hand, wearing a French maid's apron and cap. Despite this deft commentary on an antiquated practice, and our considerable amusement at her outfit, nothing changed. Justice Saufley, minus the outfit, continued to pour coffee until the next junior justice arrived. 20 MAINE BAR JOURNAL WINTER 2014



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