NEW HAMPSHIREJuly 16, 2014Vol. 25, No. 2

www.nhbar.org

An Official Publication of the New Hampshire Bar Association ...Supporting Members of the Legal Profession & Their Service to the Public and Justice System

New Law AllowsPanel Voir Dire inAll Criminal TrialsBy Kristen Senz

All trial attorneys in New Hampshirewill have the right to question panels ofprospective jurors as part of jury selectionstarting Jan. 1, 2015. The right was ex-tended to criminal attorneys in a bill Gov.Maggie Hassan signed into taw last month.

Civil litigators have been able to con-duct panel voir dire since 2005, but nearly90 percent of them still voluntarily waivethe opportunity to question potential ju-rors, according to court officials.

Criminal defense attorney Mike Ia-copino and Katherine Cooper, director ofthe NH Association of Criminal DefenseLawyers, approached Rep. Gary Richard-son, a civil trial attorney, about sponsoringthe new taw this past legislative session.

"Many judges were already permittingit, but some judges were not," Jacopinosaid. "We believe that [attorney-conduct-ed] voir dire is the best method for deter-mining how to exercise your peremptory

VOIR DIRE continued on page 17

Reluctant Exit for Judge McHugh PRACTITIONER PROFILE

After 36 years on the bench,Judge Kenneth McHugh iswaiting until the day of his 70 h

birthday to retire, so that hecan preside over cases until thelast possible moment. "There'ssome symmetry to that," hesays.

O pinions ................................ 4-5

NHBA News ......................... 6-21

NHBA.CLE ........................ 22-27

By Kristen Senz

An umpire who calls a strike doesn't second-guesshimsef.

Neither does Judge Kenneth McHugh, who will of-ficially retire July 18 - his 70th birthday - after 36 yearson the bench. A die-hard sports fan with an aversionto modern technology, McHugh is a first-generationlawyer whose civil taw prowess and straightforward stylehave earned him a reputation as a dedicated and prag-matic judge.

"I am a renegade. I'm a dinosaur. I'm my own per-son. Never really looked up to or followed anybody," hesaid during a recent interview in his chambers, whichdoubles as a display space for his collection of New YorkGiants memorabilia.

"I do live and die with them," he says of his team.McHugh's favorite sport is football, but he regularlyplays softball and some pick-up basketball games. Theonly sport he doesn't like? "I do not golf," he says, rais-ing both his hands. "I have no interest in that. It's fartoo calm a game for me."

There's no computer on McHugh's desk. He hasnever used one - "I just never had the need for it" -

McHUGH continued on page 35

Practice Area Sections .......... 28-34

NH Court News ................ 35-44

Classifieds ......................... 45-47

Periodical Postage paid at Concord, NH 03301

Helping Rural Lawyers & Towns.Project seeks to match attorneys withcommunities. PAGE 6

New MCLE System. Self-reportingcredits puts attorneys in the driver'sseat. PAGE 8

Jazz for Justice.Save the date forthe annualINH BarFoundation dinner.PAGE 10

CulturalHeritageLawyerExpects theUnexpectedBy Carol Robidoux Rick St. Hilsandstone

To say Rick St. Hilaire knows his wayaround Boston's Museum of Fine Arts is likesaying he has an interest in the legal system.

Meet St. Hilaire on a Saturday after-noon in the museum lobby and you willquickly understand why this place is likea second home to him. Follow him up theJohn Singer Sargent Grand Staircase andbe prepared for a guided tour like no other.

As you move toward the AncientWorld collection, St. Hilaire seamlesslynavigates the built-in labyrinth that adds a

Friending Jurors? Attorney ChrisHawkins writes about the ethical limitsof online juror research. PAGE 12

Federal Practice & Bankruptcy. Topicscovered in this special practice areasection include federal prosecutionpriorities, characters missing frombankruptcy practice, immigrationconsequences of divorce, and somemust-know local federal rules.PAGE 28-34

laire at the Museum of Fine Arts in Boston with astatue of King Menkaure and his Queen.

layer of security from woutd-be thieves. Heknows by heart the intrigue most of thesetreasures hold based on their archaeologicalcontext. He lingers near a display of Egyp-tian tombs for as tong as it takes to under-stand how every mummy wrap tells a story.

He proudly poses for a photo next to hisfavorite piece, a statue of King Menkaureand his Queen, carved from sandstone,circa 2500 B.C. What he appreciates most

ST. HIIAIRE continued on page 19

Drug Court in Nashua. New small-scale program could get a boost thisfall. PAGE 35

NH e-Court Project. The launch date isset, but work continues ..on updating filing feesand public access tocourt records. PAGE 36

At-a-Glance. NH Supreme Courtdecision summaries from June 2014.PAGE 37

Unapologetic Memoir DescribesBattle Against Discrimination

Highly Readable Stories from theFamily Law Trenches

In Defense ofWomen: Memoirsof an UnrepentantAdvocateBy Nancy GertnerBeacon Press(2012), 264 pages

Review by MarciaBrown

Walk a mitein my shoes. That is what former feder-at Judge Nancy Gertner asks of readers,story after story, in her memoir about atenacious pursuit of justice. She makes noapology for her advocacy and describesboth the personal discrimination she en-dured and the discrimination she foughtagainst for her clients.

Gertner was raised in Hushing, NY,and was the valedictorian of her highschool. She honed her advocacy skills byarguing for hours with her father, Moishe,about the evening news. While he gavehis bMessing for her to attend law school,her mother recommended she take theTriborough Bridge toll taker's test, "justin case." She graduated from Yae LawSchool in 1971.

In 1975, Gertner defended antiwaractivist Susan Saxe for her roe in a rob-bery that resuted in the murder of a policeofficer. The Saxe case defined Gertner'sstrength and tenacity. In her signaturered suit, she demonstrated daring litiga-tion tactics. After enduring sexist remarksfrom the prosecutor and court that punc-tuated the case, she waited for the state torest. Rather than present a defense, shestunned her opponent by launching intoa well-rehearsed closing. She won.

In other stories, she describes thewomen denied tenure and hed to impos-sibe standards, unlike their mae coun-terparts. She recalls that at one speakingengagement, the moderator was temptedto introduce her credentials not by thenumber of universities she attended, butrather, by the number of universities shehad sued over gender discrimination.

Humor aside, she fought to leve theplaying field for women in the workplace.Sometimes the stakes were high. In onestory, her client, a baggage hander atBoston's Logan Airport, was found deadafter she sought Gertner's hep to stop theunending stream of sexual epithets.

Intertwining the stories are Gertner'sobservations of how society's evovingviews on abortion, sexual assaut, andsexual harassment impacted her cases.Gertner compares the early gender dis-crimination suits where the "law cure"was effective to later sexual harassmentcases. The heavy political and legal focuson sexual harassment started to obscurethe larger issue of gender discrimination.

Other stories are about Gertner's de-fense cases. She defended 1,400 demon-strators from the Clamshell Alliance andTed Anzalone on trial for extortion. Shedefended the brother of Charles Stuartand discusses the racial uproar that re-suted from Stuart's fase accusation thata black man killed his pregnant wife.

Lastly, she reflects on her roe as ajudge. She describes sitting on a panelwith Judge Sonia Sotomayor where eachwas asked to describe her path to thebench. Sotomayor graduated from Yae,worked as a prosecutor and then as a cor-porate lawyer, and otherwise demonstrat-ed her ability to be a neutral, temperatejurist.

Gertner took a different path. Sherepresented a feminist, radical, anti-Viet-nam War activist; took every abortioncase in the state; spoke out on the ma-jor hot-button legal issues of the day; andrepresented defendants from all stripes.

Her point? Every judge, regardess oftheir path, has to move to neutraL. Thatmove should be no more difficut for thecivil rights advocate than for the prosecu-tor or corporate lawyer.

Gertner is a gifted writer and advo-cate. Her stories of breaking down genderbarriers and promoting justice for all willeave you feeling you've walked that mile

with her.Gertner was recently seected to re-

ceive the ABA's 2014 Margaret BrentLawyers of Achieve-ment Award.

Marcia A. Brown isa member of the NewHampshire Women'sBar Association andthe NHBA GenderEquality Commit'tee. She practices inConcord.

Keeping It Civil: TheCase of the Pre-nupand the Porsche &Other True Accountsfrom the Files of aFamily LawyerBy Margaret KawAlgonquin Books(2013), 272 pages

Review by Kevin J.Powers

The deceptively long full tite of Mar-garet Kaw's Keeping It Civil disguises aneminently readable and breezy work thatshould educate and entertain both lay read-ers and attorneys who practice outside ofthe domestic relations arena.

While few, if any, of these war storiesfrom Kaw's Philadelphia practice wouldsurprise a law student who took a surveycourse in domestic relations, the authortends a personal perspective that most pub-lished decisions and casebooks lack.

Most of the chapters use one or twosample cases, with changed personal detailsor composite characters, to illustrate an is-sue that arises within modern family law.These incude: relocation of a former spouseand children, negotiation and enforcementof a pre-nuptiat agreement, property divi-sion in the absence of a pre-nuptial agree-ment, an irreversibe paternity judgmentagainst a man later determined to not bethe biological father, an attempt to enforcea non-Pennsylvania homosexual marriagethrough Pennsylvania contract law, divi-sion of property with sentimental value, en-forcement of child support arrearages, draft-ing contracts (and looming uncertaintyover the enforceability of those contracts)for aternative reproductive arrangements,and judicial discretion in assessing fitness ofa parent.

Lay readers will doubtless find many ofthe laws - and, just as importantly, manyof the ambiguities - surprising. Unmarriedreaders, given this opportunity to peek atthe far end of divorces and other domesticdisputes, will doubtless find many causes forcircumspection in making major marital de-cisions.

Three of the chapters are focused onthe day-to-day work of practicing familylaw. Klaw talks bluntly about the collegialrelationship that she enjoys with many ofher opposing counsel, the minority of op-posing counse who do not maintain a re-

spectfully professional tone, the differencebetween attorneys who uncompromisinglyfight and attorneys who try to broker themost viabe outcome without running uptheir billable hours, the practicalities ofrunning a firm and employing support staff,and the choices that she has made in bal-ancing work with family over the course ofher career.

Interspersed throughout the book inepisodic fashion are seven chapters chroni-cing a particular child custody triaL. Theauthor guides the reader through the historyof the case, to direct and cross-examination,to the judge's interview with the childrenin chambers, to the judgment and the con-sequences for Kaw's client. A family lawpractitioner will probably not find any newground here, but attorneys who do not prac-tice family law will take interest in observ-ing the differences between traditional civilor criminal trial practice and child custodytrial practice. Lay readers, as with the otherchapters, will earn a great dear here aboutthe rigors of a trial and the uncertainty thatboth clients and attorneys wrestle with inanticipating a result.

While Kaw does not offer direct ad-vice to the reader on managing his or herown relationships, she does not really needto; her cases and insights speak boldly forthemselves. Her writing is smooth and en-tertaining, and she makes modem issues infamily law very accessible to non-attorneys.

In an age in which divorce rates havenever been higher, and in which more thana few personal and household budgets are ru-ined by the fallout from domestic legal issues,most casual readers would gain a great dearfrom taking this light and well-narrated tourthrough the travails of modem family life.That said, most readers will be reuctant toenvision themselves standing in the shoes ofKaw's clients - and for that, no one couldblame them.

KevinJ. Powerswas admitted tothe NH bar in2006 and cur-rently prosecutescriminal appealsand white collarcrime at theNorfolk CountyDistrict Attor-ney's Office inCanton, Mass.

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