20 Questions with E. Macey Russell
1. You have served on the Massachusetts Judicial Nominating Commission for a number of years, including as its chairman. What are the traits and qualities you look for in candidates recommended to the governor by you for judicial appointments at all levels throughout the Commonwealth?
At the top of the list after intellect, legal analysis, and writing ability is temperament and experience working with diverse groups. As our country becomes more diverse, so are our overcrowded courts. Many of the litigants appearing in the District and Probate/Family Courts of Massachusetts do not speak English as a first language and often appear without a lawyer - pro se. Judicial candidates for these courts should demonstrate their experience working with diverse groups and the ability to manage language and/or cultural barriers. Judicial candidates must also demonstrate that they can be respectful of the parties and their counsel as they manage a long list of cases each day. At the Superior Court and Appellate judges, we look for the same qualities while recognizing that having diverse judges at all levels of the judicial system is an important goal.
2. As a faculty member of the Harvard University Law School Trial Advocacy Workshop, what has been your focus in the perpetuation of the art of advocacy?
I focused on helping very bright students understand how to best to communicate complex facts and legal theories to fact-finders that may not process information and draw conclusion the same way they do. As part of their trial preparation, I suggested that the students ride the subway from Cambridge (wealthy/intellectual community) to Dorchester (lower to middle-class/minority community). While on the train, I ask them make a mental note of the passengers getting on and off the train. I then ask them to think about how they might fashion their legal arguments and witness examinations to these passengers.
3. You have received the Burton Award, presented by the Burton Foundation and Library of Congress, for your article "Developing Great Minority Lawyers for the Next Generation." In your opinion, what are the primary challenges that minority lawyers face in the profession?
Minority attorneys have difficulty finding committed teachers, mentors, and sponsors willing to help them reach their potential, which includes helping them develop and maintain law firm clients. The barriers to the development of diverse attorneys include (i) the lack of “socialization experiences” between senior white attorneys and diverse attorneys that might allow relationships to develop regardless of race and/or ethnicity, (ii) unconscious bias, and (iii) the focus of senior white attorneys is primarily on client service and their profitability, and not diversity. Furthermore, many senior white attorneys find it much easier to connect with attorneys who look like them and have similar life experiences. All organizations must continue with their diversity training efforts. Notwithstanding, organizations should focus on the leadership training of senior white attorneys to better equip them to connect with minority attorneys.
4. Massachusetts Lawyers Weekly named you a "Diversity Hero" for your work in furtherance of diversity. Who are the minority lawyers that you consider your heroes, past and present, who have paved the way for others?
Charles Hamilton Houston. In 1922, he became the first African-American to serve as an editor of the Harvard Law Review. He was (i) the architect of the ground-breaking constitutional law cases involving civil rights that led to the 1954 Brown decision, (ii) Thurgood Marshall’s law school professor and mentor, and (iii) one of the greatest constitutional lawyers to ever appear before the U.S. Supreme Court. Five U.S. Supreme Court Justices attended his funeral.
Chief Justice Leon Higginbotham. He was the former Chief Justice of the Third Circuit. I met him as a young lawyer and read his book, In the Matter of Color. He was larger than life figure, a man who care deeply about Civil Rights, and only asked that you consider carrying on the work of others. I attended his funeral service, and was blown away by the tributes. To put it in perspective, Rosa Parks attended his service.
Professor Charles Ogletree. He is the Executive Director of the Charles Hamilton Institute for Race and Justice at Harvard. Professor Ogletree is a tireless advocate of Civil Rights and a mentor many diverse attorneys around the Country. He is affectionately known as the “Dean of African American attorneys.”
5. Let's lighten up a bit. Boston is unique in many ways. What are your favorite things about the city?
There are an amazing number of great restaurants offering all types of food from steaks to sushi to tapas. It is also a really easy city to walk and get around by subway, and the area sports teams are always competitive.
6. What impact do you think the discovery process has had on the number of cases being tried?
It is more difficult to try cases because there is so much information and data to process and evaluate as part of the pre-trial process. Clients rather settle a case than try a long and complicated case with hundreds of exhibits; the cost factor clearly contributes to cases settling. The increase in data and information also creates additional risks as clients don’t know what fact-finders will consider important when making decisions, and often there are damaging emails or documents containing information that would have never been reduced to writing in “the old days.”
7. What was your evolution toward litigation, and did it begin before, during or after law school? That is, did you want to be Atticus Finch in "To Kill A Mockingbird" 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?
I first considered becoming a trial lawyer in law school. When I went to law school in the early 1980’s, you rarely came across an African American corporate or business lawyer. I recall the third year law students telling us that, “if you become a trial lawyer, you will always have a job.” During my third year of law school, I accepted a Superior Court trial clerkship. I knew after the first day on the job that I wanted to be a trial lawyer.
8. I once practiced with a fantastic, though legendarily difficult, trial lawyer named Olin Zeanah. One of my partners at that firm, 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.
Larry Crowley would say the following: “Keep it simple stupid, “If you can’t ask the question properly, no one can answer it.” And the test was always, “would your mother understand what you are trying to say?” Professor Ogletree would always say (words to the effect), “Once you understand one side of an issue, what is missing? What did they not say or do? This is just as important question to ask.
9. What has been the biggest change in the way law is practiced between the time you first began until now?
Aside from the lack of trial experience, young associates in law firms rarely have the opportunity to take and defend depositions, or to argue before a judge discovery and/or other dispositive motions. As a young lawyer, our insurance defense firm had “Civil Motion Days.” The associates would all be assigned a day to handle all of the firm’s motions in a particular court. A few days before Motion Day, you would be given the files and motions to review. On any given day, you might argue a motion to compel documents, for further answers to interrogatories, to dismiss, for summary judgment, and to continue. While sitting the Courtroom over the course of the day, lawyers from all over the city would argue a variety of motions covering all sorts of legal issues. It was a great learning experience.
10. What is your greatest extravagance?
I enjoy a really nice bottle of wine; usually red.
11. What object in your office serves to re-energize you when your mood needs an adjustment?
I have photos of old friends who passed away too soon and photos of my wife and two sons. They remind me of what is important and that tomorrow is promised to no one.
12. If you could meet anyone from history, who would it be, and why?
Tough question but it would be Dr. Martin Luther King. I recall him as a child and the impact he had on my parents and family members especially those living in the south. In some ways, our future (my future, born in 1958) was in his hands. Dr. King led with immense intellect, courage and charisma. He led people from all walks of life in a fight for civil rights while knowing that, “he might not make it to the mountain top with [us].” He sacrificed his life for others.
13. 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, as well as the Diversity Law Institute's website. 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?
The demographics of our Country have changed significantly since the Civil Rights era. As both the moral and ethical leaders of the legal profession, we owe our children and grandchild (multi-cultural or not), a legal system that is fair, just and inclusive, and that system includes our law firms, corporate law departments, government agencies and the judiciary. They expect that of us, and why would we do anything less?
14. What trait do you most value in your friends?
15. If you could not be a lawyer, what would you like to be?
A high school history teacher and football coach.
16. To what destination do you go to find your own version of solace?
When I was young kid, I would go to a basketball court to shoot baskets alone. As an adult, I find solace at the beach – just watching the waves.
17. What roles should confidence and humility play for a trial lawyer?
As for confidence, it should come from the trial lawyer being prepared, which includes understanding the strengths and weaknesses of your case. As for humility, we all have strengths and weaknesses as individuals that are shaped by our life experiences. “When I see heads, you see tails, and we are both right from a different point of view.” As a trial lawyer, you must understand how the other side sees things and why. You must be able to “put yourself in their shoes.” To do so, however, you need to understand that you are no better or worse than them.
18. Fenway Park. What is your preference - first base line or third base line?
Third base: It is not in the direct sunlight and thus, has a better view of game.
19. How would you like to be remembered?
As someone who was willing to help others whenever he could and never forgot where he came from.
20. What is your motto?
“Maximize Your Potential”
Interviewed by G. Steven Henry