20 Questions with Dennis Drasco
1. You recently received the ABA’s 2010 Jury System Impact Award for recognition of significant contributions and tremendous efforts to the improvement, preservation and strengthening of the American Jury System. At what point in your career did you decide to use your time and influence for this particular cause, and why?
Since I started practicing law in 1973, I aspired to be a trial lawyer and have always been extremely proud of what we do as trial lawyers. As such, the American jury system has always been extremely important to me. When I was given the opportunity to Chair the ABA Section of Litigation, I was fortunate to be working alongside ABA President Robert Grey, who dedicated his term of office to improving and enhancing juror participation and jury practice, with a goal of improving the American justice system. As Co-Chair of the ABA American Jury Project, I was fortunate to work with an amazing group of judges, trial lawyers and academics in developing the PRINCIPLES FOR JURIES & JURY TRIAL, which was adopted by the American Bar Association House of Delegates in February 2005. Thereafter, I became Chair of the ABA Commission on the American Jury and advocated implementation of the ABA Principles in jurisdictions throughout the country. Those efforts included my luncheon program at the LCA’s 2009 Spring Conference and Induction of Fellows in Santa Fe, New Mexico. As a result of these efforts over the past several years, I have become more convinced than ever of the importance of the American jury system for our system of justice and our democracy.
2. Do you think the changes in jury composition over the last 40 to 50 years have created a greater fear of putting one’s fate in the hands of those jurors?
The evolution of the jury system over the past few decades has created complex questions. On one hand, the institution is as strong as ever. On the other hand, the phenomenon of the “Vanishing Trial” has raised questions about the manner in which we resolve disputes in this country. The goal of the ABA Jury Project is not only to advocate for the Jury System but also to enhance juror participation to “level the playing field” throughout the many diverse jurisdictions around the country so that all constituents in our country, from the poorest individual to the largest corporation, are unafraid to have their disputes decided by a jury. While it can be argued that the use of mediation and arbitration is an effort to avoid a jury trial, by equipping jurors with the tools to make better and more informed decisions, all segments of society should feel comfortable putting their cases in the hands of a jury.
3. While there may be comfort among the general public as to our system of justice being superlative to any other, what can be said to the party who knows the truth, but who is adjudged adversely by a jury of his supposed-peers? In essence, where is the comfort when the system gets it wrong?
I think this question is too negative. If we had 100 percent predictability of what a jury is going to do, we would not need to try cases. There is always uncertainty. That is the beauty of the jury system because every prospective juror brings with him or her their own set of values and experiences. A jury trial is a dynamic. Advocacy will always play a role, as will the composition of the jury itself. That is why 12 person juries are better than 6 person juries, because of the diversity that the numbers will bring. I think the comfort to a defeated litigant is in the fact that he had the opportunity to present his case, select a jury of his peers, present evidence, and make his arguments to the jury. That the jury deliberation process leads to one winner does not mean that the system does not work. By improving jury comprehension with the use of innovations, including those that are included in the ABA Principles, I am convinced that, for the most part, juries get it right. Having appeared on many, many panels throughout the country, with several state and federal court judges, the answer is always that given the opportunity, juries usually get it right. I believe that is all we can ask of our system of justice.
4. Twelve Angry Men is the most instructive movie I can imagine from the standpoint of jury service. I’ve heard some jurists say they have thought about using it as such before the entire jury pool on Monday morning. Shouldn’t there be something that points the way for an average juror to understand the significance of evidence and the decision to be rendered?
You are absolutely correct that jurors need to understand the significance of evidence and the decision to be rendered. Jury comprehension of the facts and the law is the essence of their deliberations. The goal of the ABA Principles is to emphasize the importance of establishing a process that empanels jurors that are to be able to understand the facts and the law by taking notes, being able to ask questions to witnesses, and to receive instructions in plain and understandable language, so that they can conduct their deliberations and reach a fair verdict. As many of the legal television shows and movies that are available to the public do not accurately depict the process, it is essential that our Courts inform and instruct perspective jurors the importance their jury service, how the process works and the role that they play in the dynamic that is the jury trial.
5. Your presentation on juries at the LCA’s 2009 Spring Conference and Induction of Fellows in Santa Fe was not only informative and encouraging, but presented a challenge as well. What do you feel is the most significant reason for the diminution in trials nationally, and how can we get back the trust in the system and the desire to risk outcomes with juries?
The challenge that I made at the LCA’s 2009 conference was to take back the message that the jury trial is in need of improvement and that the ABA Principles For Juries & Jury Trials offers best practices which should be implemented around the country. This message has been heard. Many pilot programs and jury reform efforts have been established. The ABA Commission has over 25 liaisons around the country to state and federal courts who are interested in experimenting and attempting to implement jury innovations. The National Center for State Courts is active in tracking these developments, as is the Federal Judicial Center. I have participated on panels with corporate counsel who indicate that they are not afraid to try their cases before a jury, as long as they know that they have an even playing field. That includes a fair jury selection process and opportunities to insure jury comprehension during the trial.
6. What impact do you think the discovery process has had on the number of cases being tried?
Without question, the “cost” of the discovery process has had an impact on the number of cases being tried. When I started practicing in 1973, a young lawyer could get experience trying smaller cases. Those cases, for the most part, don’t exist anymore because it is too expensive to go through discovery and prepare for a jury trial unless the case has significant dollar value. Efforts are being made to streamline the discovery process by amendment to the discovery rules which I think would certainly increase the ability of litigants to take cases to trial. This is an important issue.
7. What was your evolution toward litigation, and did it begin before, during or after law school? That is, did you want to be Perry Mason when growing up or did you want to become a trial lawyer after getting out of law school and reading contracts all day long for the first six months of your career?
When I started law school, I did not initially focus on being a trial lawyer. However, the courses I enjoyed the most were civil procedure, evidence and trial practice. I had a terrific professor at Rutgers Law School in trial advocacy, who was himself an excellent trial lawyer, who got me moving in that direction. Additionally, I worked part time during law school in the City of Newark Corporation Counsel’s Office for Hon. William H. Walls, who is now a senior U.S. District Court judge in New Jersey, and who was a great mentor to me while I was in law school. I began my career with Lum, Biunno & Tompkins, which was a great litigation firm with many great trial lawyers who mentored me in the early part of my career.
8. I used to practice with a fantastic, though difficult, legendary so, trial lawyer named Olin Zeanah. One of my partners, beginning when we were associates, kept a list of “Zeanahisms.” They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
In addition to the mentoring that I received in law school and during my early employment at the Lum Firm, where I have been practicing for 37 years, I became active in the ABA Section of Litigation where I was exposed to some of the giants in the trial bar around the country. I learned a great deal watching such greats as Phil Corboy of Chicago, Bob Hanley of Denver, Ron Olson of Los Angeles, Ben Civiletti from Washington, D.C., Professors Mike Tiger and Jim McElhaney, and so many others who instilled a great sense of pride in our profession and being a trial lawyer.
9. We’re in what a banker friend of mine called a “bumptious” economy. How has your practice and that of your firm adjusted?
My firm consists of about 25 lawyers. I practice in New Jersey and New York. I think that firms our size have adapted better to the changing economy than some of the larger firms because of our size and nature of our practice. I think litigation and trial work has faired better than some other specialties.
10. What has been the biggest change in the way law is practiced between the time you first began until now?
The biggest change is in the size of the bar. Until recently, practice was a bit more collegial in that the trial bar was relatively small and trial lawyers dealt with each other time and time again. As the practice has become more regional and national, lawyers are not always known to each other at the beginning of the case. There is also less in-person interaction with less oral argument. Therefore, it is easier to take positions by letter or email rather than picking up the phone to work things out. As a result, I think a great deal of time and money is spent by clients arguing over things that could be worked out. I pride myself in trying to conduct my practice as I always have and avoid those types of skirmishes with my adversary.
11. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
I think you are right that litigators do like to travel and my work in the organized bar and organizations such as the LCA and the American College has given me the opportunity to travel to great places all over the United States and the world. I love big cities—New York, San Francisco, Chicago, Boston and Miami. When I think of cities I usually think of the great restaurants that are located in those cities and the great times that I have had with my colleagues. Like I said earlier, I enjoy the company of trial lawyers and enjoy socializing with trial lawyers, especially at fine restaurants.
12. Have you ever had a case in which your opposing counsel went over the line ethically in representing their clients interest? How did you deal with it?
While there have been a few instances where closing counsel has done something that is outrageous, I am pleased to say that it is still the exception. When I tell stories about adversaries who have crossed the line to other trial lawyers, it is usually something that has been done by someone who has developed a reputation for that type of conduct. I think lawyers that cross the line do not realize how their reputation precedes them. The best way to deal with it is not to try and “fight fire with fire” but to point out them to the Court what is disturbing about their conduct when it occurs. Bad behavior usually winds up biting the lawyer in the behind.
13. Has trial law’s golden age passed or have we yet to reach it? What intrigues you about prior generations of trial lawyers?
I would hope that the Golden Age of trial law has not passed. I think organizations like the Litigation Counsel of America, the American College of Trial Lawyers, the ABA Section of Litigation, the American Inn of Court movement, all intend to celebrate who we are and what we do as trial lawyers and to make the system work better.
14. What is the first thing that comes to mind if I ask "If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?"
I wouldn’t put the question quite that way, but I think the most significant thing I would hope a judge remembers when he puts on the robe for the first time is that he was and is a lawyer and that he should never forget the issues and problems that confront trial lawyers that appear in Court, so that judges treat the lawyers as professionally and civilly as they would expect to be treated when they were lawyers.
15. What is your greatest extravagance?
One of the great things about traveling to great places is the opportunity to play at the greatest golf courses in the United States and in the world. I have played many of the top 100 and still have a few left on my bucket list, which is my greatest extravagance.
16. What object in your office serves to re-energize you when your mood needs an adjustment?
In my office, I have some great photos of my wife, my dogs, friends and colleagues from all over the country who I have shared great times with. I treasure a photo of me and Joe Torre, who I interviewed at a luncheon program of the ABA Section of Litigation before a large audience at The Waldorf in New York, which Joe autographed for me, and which always brings a smile to my face. I am a huge Yankee fan!
17. If you could meet anyone from history, who would it be, and why?
Thomas Jefferson, to ask him how the 1789 Lafite Rothschild tasted! No, seriously, probably President Kennedy, who brought much idealism to an entire generation of Americans.
18. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Litigation Commentary & Review. So in a word, sentence, or paragraph, what in your opinion is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
I believe that lawyers must provide leadership on the critically important issue of diversity. As Chair of the Section of Litigation, I was proud to participate in the development of our section’s Diversity Plan. It is often said that diversity in the profession is not only the right thing, it is a necessity, as we need to promote full and equal participation in the legal profession by minorities, women and persons with disabilities so that the profession will reflect the public that it serves.
19. What trait do you most value in your friends?
Honesty and loyalty.
20. What is your motto?
I tell young lawyers to be proud of who they are and what they do. It is a noble profession and we should always walk with our head high for what we do as part of the American justice system.